Mark Holthe 0:05
ANNOUNCER. This episode of the Canadian immigration podcast is sponsored by the Canadian immigration Institute, one of the best sources of video content on Canadian immigration to help you navigate your way through the Canadian immigration process. Head on over to the YouTube channel, where there's tons of video content, and you can join mark yes myself in a number of live video streams, Q and A's all designed to help you navigate your way through this crazy Canadian immigration process. When you're done there, like and subscribe and then head on over to the Canadian Immigration institute.com where you can find all those awesome DIY courses that I've been talking about. Thank you, Canadian immigration Institute. You are the sponsor of this amazing little podcast. You
Sponsor 1:05
the Canadian immigration process can be complex and frustrating, with the Canadian Immigration Department making it virtually impossible to speak to an officer. There are few places to turn to for trusted information. The Canadian immigration podcast was created to fill this void by offering the latest on immigration law, policy and practice. Please welcome ex immigration officer and Canadian immigration lawyer Mark Holthe as he is joined by industry leaders across Canada sharing insight to help you along your way.
Mark Holthe 1:52
Welcome back everyone to another Canadian immigration podcast. This is another episode within our Express Entry, getting it right. Series. I'm here, as always, with my faithful co host, Alicia. How you doing? Alicia, I'm
Alicia Backman-Beharry 2:07
doing all right mark, and we thought we would try to head off disaster for people. Because you know, when you've been working on your Express Entry application, you've got your profile in, you finally get that ITA, you're working hard on getting the eapr finalized, and then you run into these statutory questions, and I think some people rush through them and don't read them carefully, and it can definitely tank your entire application, and worse yet, it can lead to a finding of misrepresentation and a bar for five years. So literally, cannot apply for PR for five years, absolutely.
Mark Holthe 2:41
So where you're going to see these statutory information questions is after you get your invitation to apply and you're completing your eapr. So if we slide over here, I've got this as part of our course, because you can't just go to it within your profile unless you have received an ITA. So in the course, I'll just go down to the section all these lessons. We're going to go to the completing your eapr, and then it's found within the personal history section right in here. And so when you're completing your you know what you've been doing over the last 10 years, it asks what your travel history is. And then the last component is actually the the statutory information questions. And so what I've got here, I'm just going to flip over to this page, is the actual questions that you will see now, obviously I've got them redacted because this is a real person's statutory information questions. And Alicia and I, we're going to focus today on some of the ones that are the most important. Obviously, if you are a international terrorist, it's pretty abundantly clear. You know what the question is asking, but it's the more nuanced questions that cause the most problems for people when they're applying so right off the bat, Alicia, why don't we just hit with the very easy ones, which is this first one has, and we'll say, Mark Holthe, been convicted of a crime or offense in Canada for which a pardon has not been granted under the criminal records act of Canada.
Alicia Backman-Beharry 4:07
Yeah, so that one's fairly straightforward. Most people will know if they've been convicted of a crime or offense in Canada and they have not been pardoned for that crime or offense in Canada. And that one's, you know, pretty self evident, and people ought to know if they have been convicted of a crime in Canada. So that one's not I, you know, I've never seen that one become an issue for people. It's pretty clear. The next one, though, does have a little bit more nuance, and it is a question that comes up also when people are looking at their temporary residence applications. So when they're doing a work permit, for example, when you look at the back of the either the 5710 form or the 1295, if you're applying from outside Canada, there is a section on the statutory questions, and it asks a very similar question, so has the applicant ever committed? Been arrested for been charged? Charged with or convicted of any criminal offense in any country. And so this is not just a conviction, right? Keep in mind that they say committed. And so there's a whole section under the immigration and refugee protection act in terms of criminal inadmissibility on what constitutes the commission of an offense, even if there was not a charge or a conviction, and then there's also been arrested for or charged with. So even if you were arrested and not charged, you would still need to say yes and provide information on these questions. And I guess one thing that I will bring up as well is that sometimes applicants say, Well, do I really need to disclose all this information? And the answer is yes, yes, you do really need to disclose all this information. And the reason is section 16 sub one of the immigration and refugee protection act, which says that you have a duty of candor. You have a duty to fully and accurately answer questions in your application, and also to provide documents that are complete and accurate. And this has been found time and time again. It's been confirmed by the Federal Court that no people can't just hide. They have a positive duty of candor here. So yes, they've got to answer these questions. You
Mark Holthe 6:19
know, Alicia, when I worked on the border, this is one of the questions that came up more than any others we would ask. Have you ever been convicted of a felony or misdemeanor? I was working on the land border crossing, so usually it was Americans coming up a felony or misdemeanor, and people, often who had maybe more colored or checkered pasts would have been instructed by their immigration attorney in the US that they didn't need to disclose anything when there there had been an expungement or some other measure taken to wipe the slate clean for that person on the criminal records in the US, at least for the purposes of employment and things like that. So the, you know, the equivalent of a pardon would be granted, and then the person would feel, well, I don't have to say anything about this anymore, but when we were on the border, we had full access to the NCIC database the state the state records, and we could do a search, and if someone answered no to, have you ever been convicted of a crime? Well, that was a no brainer. That was pretty easy, but sometimes they'd say, Well, I didn't know that that was a conviction. So then I was instructed by my supervisors at the border to ask, have you ever been charged? Have you ever been detained? Have you ever been handcuffed? Have you ever been fingerprinted? You know, to close off every avenue. So then, if they truly did, say no, then as I was listening to the other officer in another room, this is back in the early 2000s when they were running a search on the person, I could hear this dot matrix printer going and these accordion pages that are all attached. And then they'd come and they'd bring this stack of pages where I'd open it up like this, and it'd be like this accordion full of records and and I was like, um, maybe I'll ask you that question again. Have you ever been, you know, convicted? Like, well, oh, my, my immigration attorney, sorry, my, my criminal attorney in the States. Told me I didn't have to say that. Well, you are crossing an international border, and we see everything. And it may be, you know, it may be suppressed, but it's always there. And so those are, those are real issues, and people are always getting tripped up with this.
Alicia Backman-Beharry 8:28
And maybe Mark Well, because now actually on the Express Entry statutory questions, they've divided this question in two. So if you look at the work permit or the study permits, they have a slightly different way of asking this question. But maybe if you scroll all the way down, just because we're talking about criminal criminality and inadmissibility, there's another question that very, very clearly also says, Have you ever been detained, incarcerated or put in jail? So they've broken this question up into two sections, I think, to try to highlight for people that these are two separate matters, right? Even if you weren't convicted, were you ever detained, handcuffed, incarcerated, put in a jail cell? If yes, then you must provide the details of that, and so you're absolutely right. Mark, I've also had clients from the UK who have had these UK rehabilitation of offenders provisions where after a certain period of time, the slate gets wiped clean, and this doesn't actually appear in their criminal record search, their acro search anymore, but they were charged or they were arrested for that crime, even if it was subsequently pardoned or rehabilitated, and they still have to say yes to this question, because you're absolutely right the way that domestic law, and if you look into all the UK provisions as well, it clearly says, you know, this rehabilitation only applies within our jurisdiction. If you are crossing international boundaries and making an immigration application. Well, then all bets are off. You've got to disclose, yeah.
Mark Holthe 9:59
Yes. And one of the things that we would always key on with UK criminal record reports was the distinction between no trace and no Live Trace. And in the past, that live indicated that there was something there in the past that had then been pardoned through the UK rehabilitation of Offenders Act. So watch for those things for yourself, and if you are you know a representative, those are things that you want to watch out for and ask these questions. All right, let's continue Alicia.
Alicia Backman-Beharry 10:34
All right, so the next one, has the applicant ever made previous claims for refugee protection in Canada or at a Canadian visa office abroad, or in any other country or countries, or with the United Nations High Commission for Refugees, the UNHCR. So it's not just a Canadian refugee claim. It is any type of refugee claim anywhere.
Mark Holthe 10:56
And yeah, people, that's another thing. People, they just assume, Oh, it's in Canada, and Nope, never made a claim. And sometimes when you're young, Alicia, this also becomes an issue, because if you were a minor, you were accompanying your parents, all of these questions, you have to be very careful for because they don't say anywhere here, Alicia, that these questions are to be answered based on from the age of 18 or, you know, or more, like when you're an adult, they just ask, have this ever happened, and when it comes to these applications for refugee status, or as we get down a little bit further, applying for a visa, and have you ever had one refused? You may not even know,
Alicia Backman-Beharry 11:35
yeah. And so this next one is the one that tends to trip people up because they stop reading. And so this one's fairly long, and it says, has the applicant been refused refugee status? And then they're like, Well, I just answered that question. You know, no, I haven't been refused refugee class status. I didn't even apply for it. But you need to keep reading, because it says, or an immigrant or permanent resident visa, so it's not just refused refugee status. Were you ever refused an immigrant or permanent resident visa, including CSQ, so South Africa de seleccion de Quebec, or an application to the provincial nominee program? So a PNP or and not just permanent residence. Now it turns to temporary residence or a visitor or temporary resident visa to Canada. And here's the kicker, or any other country ever,
Mark Holthe 12:27
yeah. And you know these questions Alicia are just so poorly worded. In my mind, they should all be broken up into individual parts so that people can address them individually. Because, like you said, even a refusal of a PNP application, you're you're to disclose that, and people often get very, very confused, and they're uncertain as to whether or not something is an actual refusal, which really we should probably read both of these questions together, because this one is all about, technically, I know where they're going. They're saying, Okay, have you ever applied, like, made an application for any kind of a visa and it was rejected? That's kind of what they're getting at with this question. But they but when you look down here, it says, Have you ever been refused a visa or permit, denied entry or order to leave Canada or any other country? This is more. You know, have you been prevented physically from entering, or have you been asked to physically leave? But it's not really worded that way. So it still says, Have you been refused a visa or permit? Well, technically, that right here could encompass everything up here, to some extent. And so whenever we're doing this, answering these questions. Something that comes up frequently is, oh, I flagpole to the US. So how do I treat that flagpole? I don't think it was a refusal, or was it refusal. How do you address things where it's just gray,
Alicia Backman-Beharry 13:56
if there is any doubt, you disclose it ad nauseam. And so you say yes, and then if you do not have space, and this is something that I've heard over and over again as well, for people who are unrepresented or doing their own application, oh, there wasn't enough space in the little box, so I just said yes, and I only gave two lines. But you know, it actually was three lines worth of refusals, and I didn't mention the older refusals because I didn't have space. IRCC does not buy that, the Federal Court does not buy that, that will not stand up and you will be found to have misrepresented if you did not attach another letter of explanation and fully declare and disclose everything, even if it doesn't fit in the boxes. Yeah,
Mark Holthe 14:36
and with this in Express Entry, there's a lot of room in the box to explain. So the aren't, you aren't faced with the same character limitations that you often are with the PDF forms. So don't, like, Don't hold back. You don't need to write, you know, a whole bunch of paragraphs or an essay explaining what happened. But Alicia, when the answer is yes. Like, what are the specific information like? What's the essential components that you always include when you are, you know, providing an explanation of why you've answered yes.
Alicia Backman-Beharry 15:10
So if it's yes, then most of the time it's going to be yes to both of these questions, right? If they were refused a permit or a visa, you're going to say yes to the first question, yes to the second question, and then you're going to expand so how many permits, when was that that it was refused? What were the circumstances around it? Why was it refused? Was there a subsequent approval, or what happened with that refusal? You're going to put all those details as part of your explanation for what happened. Yeah.
Mark Holthe 15:39
And when you do that, you are insulating yourself from misrepresentation. A finding of misrepresentation, right? It's the failure to to disclose something that you should have or, of course, by commission, saying something that was just not true. And technically, if you said no and the answer was yes, that would be misrepresentation by commission. You know you're actively responding incorrectly, and you know, in a way that would be considered potentially to be misrepresentation. So when we're filling these, these, the details in, like I said, you don't have to provide an explanation. And sometimes you guys, you don't know exactly why it was refused. The reasons the reasons are not super detailed. So I've never found a situation where someone has got into trouble when they've disclosed it, and haven't provided an essay in terms of an answer. It's only been situations where where an individual has just said no when the answer should be yes, but you still want to be careful. You want to identify exactly what you applied for. Because Alicia, if my memory serves me correctly, I think there was a federal court case at one point where they upheld a misrepresentation finding. When a person failed to disclose the third of three US visitor visa refusals, they disclosed one and two but forgot number three, and there was a finding of misrepresentation, because they had not disclosed the third one, you know, ultimately, whether that's going to have a, you know, an impact, a material impact, on the processing of the application, I guess, is another question, but that's how serious they take this.
Alicia Backman-Beharry 17:16
Yeah, and Mark, circling back to what you said about those flagpoles, and when we did a podcast on flag polling and the risks of flag polling, sometimes people don't actually realize that the document that they were given by US authorities was technically a refusal to enter the US even if their Canadian work permit was issued or their study permit was issued. And so just like Mark said, Be super careful. Or I always tell people to go and ask their parents. You know, did you ever apply for a visa for me, even while I was a kid, right? If, let's say you were living in China, and your school group wanted to come to the US, and you applied for a visa and it was refused, you've got to disclose that. So those are things where you've got to be super, super careful, go through and carefully examine all of your past, because there's no time deadline on this. It doesn't say age 18, it doesn't say the last five years. It doesn't say the last 10 years.
Mark Holthe 18:14
No, it doesn't on the topic of misrepresentation, which is not the topic of this podcast episode. I do want to direct you back to our YouTube channel, because if you go here and you should be able to search here, and if you just type in misrep or whatever you want, this little, juicy little video here that Alicia and I did a couple years ago, wow, three years ago now, on misrepresentation, it was a Halloween special. You definitely want to go check that out, because we discussed this in a lot more detail, and we don't mean to scare you. What we mean to do is to terrify you guys into Not, not failing to disclose what you should be disclosing, because the consequences often are far greater for saying no than they are saying yes and disclosing what actually happened. And in many cases, especially when it comes to prior visa refusals, those do not have a significant impact on your permanent resin application. In most cases, they just want you to tell the truth. And so just watch for that.
Alicia Backman-Beharry 19:18
All right, yeah, the next few we kind of touched on, refused a visa permit, denied entry or order to leave. So be careful, even if it wasn't a refusal of a permit, if you were turned around at the border and not allowed into a country that you have to say yes and explain,
Mark Holthe 19:34
and especially the Canada US border, because everything is tracked and they can see it, so there's nothing that you're going to be able to be able to hide if it happened in the US or Canada or one of our partner countries? Yeah,
Alicia Backman-Beharry 19:46
the next one, this is pretty evident. These are in an act of genocide, a war crime, commission of a crime against humanity. This is big, bad stuff. Use planned, advocated, the use of armed struggle or violence to reach political, religious or social. Objectives associated with a group that used, uses advocated or advocates the use of armed struggle or violence to reach political, religious or social objectives, or been a member of an organization that is or was engaged in an activity that's part of a pattern of criminal activity. So all those early gangs. Yeah, pretty serious, yeah. So then the next one that we talked about already with respect to criminal inadmissibility is detained, incarcerated or put in jail. The reason mark that they're asking all these things is because of equivalency, because a crime in a different country could be very different than a crime in Canada, or what Canada considers to be a crime. So even if somebody was not charged or convicted of a crime in a foreign country, the fact that you were incarcerated or detained or put in jail for that could be relevant information for an analysis, for an officer to say, Well, wait a minute, that actually would have been a crime had it occurred in Canada. So that's what they're looking at. So you do have an obligation to be truthful, and this this next one is one that is also serious, because it's very broad. So there's a similar question that's asked and study permits and work permits and temporary resident applications, but in terms of the Express Entry application statutory question, it's has the applicant had any serious disease or physical or mental disorder? And there are all sorts of variations on this. And I often have clients say, Well, you know, my child has ADHD, does that count? My child has autism. I have a malignant tumor? Well, yes, that is a serious disease. I have a benign tumor. Is that a serious disease? Maybe, you know. So there are a lot of things if, if you've been diagnosed with some sort of mental disorder, that's something that needs to be disclosed here as well. People are trying to figure out, well, what's serious? Well,
Mark Holthe 21:59
is depression serious? Is it, you know what? What's the distinction between, you know, I've been seeing and seeking help for depression, versus I am, you know, clinically depressed versus I'm recovered and I'm fine. Now, it's, you know? And so whenever you're in these kinds of situations, people often, Alicia, I get these comments, and I see them online, people are like, Well, don't disclose it, because then it opens up a can of worms, and then they're gonna, it's gonna delay the processing of your application. My goodness, you guys, you do not want to, in any way, shape or form, speed up the processing of your application, which then results in a refusal, because you chose not to disclose any of these things, it's better for you to disclose fully, let it run its course, let it take its time to be properly assessed and avoid the likelihood of a misrep Finding.
Alicia Backman-Beharry 22:53
Yeah. And so what they're getting at here is medical inadmissibility, and we know that there's different types of medical inadmissibility. Most of them are dealing with excessive demand on health or social services. That's what they're looking at here. They're not usually worried about public health or public safety. That's more of like a tuberculosis or an active disease, where their screening is part of the immigration medical but the thing that they're looking at largely here is excessive demand on health or social services. And this comes down to a costing analysis. And so there is a cost threshold. The cost threshold for 2025 is Canadian, $27,162 per year or and this is important because they also look at the average over five years. So over five years, the cost threshold for 2025 is $135,810 and so they're going to look and see whether the cost of care for Health and Social Services is going to exceed the Canadian cost threshold for what the government is expecting to pay for most Canadians over A one year, five year period, and if it is, then it's something where you could be potentially medically inadmissible, and you're going to want to come up with a mitigation plan. You're going to want to reach out to an immigration lawyer that deals with medical inadmissibility on a regular basis. You're going to want to try to find if there's some way that you can defray those costs with private insurance or come up with a solution, but you definitely can't hide it.
Mark Holthe 24:25
Yeah, you do not. So there you go. Everyone that is our breakdown of the very statutory information questions that you will find within the express entry process and permeating throughout a lot of the other immigration applications you'll submit to Canada. The one overriding piece of advice that we will reiterate over and over again is it is better to disclose when you're in any kind of a gray area or uncertain. It's better to disclose and then have the opportunity to to let it kind of run its course, and you can provide more details, and in many cases, the. Areas that are gray when you disclose, they're not an issue. It's the issue becomes when you choose not to disclose in an area that's gray and then an officer says, Well, you should have and that's misrepresentation. So often we find the misrepresentation consequences are far greater, almost in many cases. Obviously it's subject to what you're actually disclosing. But then, then the actual failure to you know that whatever you did, like the refusal to the US for a visa in and of itself. So any other final little pieces, Alicia, one last
Alicia Backman-Beharry 25:32
thing, because I was looking through some case law before we started talking about this podcast, sometimes applicants say, well, I already disclosed that refusal on my last study permit or my last work permit, or immigration knows about it because I, I told them about it before. That should be fine. They can't say that I've misrepped If I, if I told them about it before. Yes, they can. So you still have an obligation, especially on your Express Entry application, when you're applying for permanent residency, to reiterate and disclose everything, even if you put it in prior applications. And the federal court has literally said that the applicant should not make assumptions about IRC sees knowledge of their own past history.
Mark Holthe 26:13
Yeah, absolutely. All right, everyone, thanks for joining us in this episode of the Canadian immigration podcast. Another within our Express Entry getting it right series, we will be back again in the next one, covering more topics like this. Take care. Thanks, Alicia,
Sponsor 26:32
thank you for listening to the Canadian immigration podcast. Your trusted source for information on Canadian immigration law, policy and practice. If you would like to book a legal consultation, please visit www.holthelaw.com you can also find lots more helpful information on our Canadian immigration Institute YouTube channel, where you can join mark on one of his many Canadian immigration live Q and A's See you soon and all the best as you navigate this crazy world we call Canadian immigration. You.
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