Section 16(1) and 40(1) in Canadian procedural fairness letters (PFL)

Sandile is a citizen of Eswatini who has applied for Canadian immigration. However, he recently received a procedural fairness letter from IRCC. The letter accuses Sandile of potentially breaching subsections 16(1) and 40(1) of the Immigration Act (IRPA). He wonders what this even means and what are the potential consequences.

Procedural Fairness Letter (PFL) with or without 16(1) or 40(1)

Before discussing 16(1) and 40(1), let’s explore the concept of PFL. Following a prominent Supreme Court of Canada (SCC) decision, Baker v. Canada, Immigration officers must remain fair in processing applications. Moreover, IRCC has published a Program Delivery Instruction (PDI) for their officers on this matter. One of the premises of procedural fairness is giving applicants a meaningful opportunity to respond to an officer’s concerns. Therefore, in some cases, officers issue a PFL to provide them with such an opportunity. Please consider reading my detailed article on this subject:

• Procedural Fairness Letter (PFL) in visa and immigration applications

What does subsection 16(1) of IRPA imply?

IRPA is the root source of immigration to Canada. Whenever you apply for temporary or permanent residence in Canada, you must comply with IRPA. Subsection 16(1) is one of the most important clauses of IRPA.

16 (1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires.

Source: CanLII

If you receive a PFL that refers to subsection16(1), the officer suspects or even has enough evidence that you have not been truthful. Of course, such a letter may or may not refer to subsection 40(1). Regardless, upon responding to this letter, the officer may take any of the following actions:

• Refuses your application and makes you inadmissible to Canada for five years
• Only rejects your application without inadmissibility
• Invites you to an interview or requests more documents
• Approves your application

What about subsection 40(1)?

Subsection 40(1) of IRPA discusses the consequences of misrepresentation.

40 (1) A permanent resident or a foreign national is inadmissible for misrepresentation

(a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

(b) for being or having been sponsored by a person who is determined to be inadmissible for misrepresentation;

(c) on a final determination to vacate a decision to allow their claim for refugee protection or application for protection; or

(d) on ceasing to be a citizen under…

Source: CanLII

Receiving a PFL containing subsection 40(1) means the officer suspects or has enough evidence that you are inadmissible on misrepresentation. Of course, if you are unfamiliar with this concept, please read my article on misrepresentation.

What is the difference between 16(1) and 40(1) PFLs?

A PFL that refers to both subsections 16(1) and 40(1) means the officer will likely make you inadmissible on the grounds of misrepresentation. Of course, your response could make them change their mind. If the PFL does not include 40(1), then we could conclude it is less likely the officer has enough evidence to impose inadmissibility. Consequently, it is likely they will only refuse the application if your response is not satisfactory. Of course, sometimes your answer could convince them to escalate the matter.

To recap, if I see both 16(1) and 40(1) next to each other, I’ll be more concerned compared to when 16(1) appears alone. Regardless, responding to any procedural fairness letter needs attention and care. A letter that contains 40(1) without 16(1) is extremely unlikely, as 16(1) is the precursor for 40(1).

Let us help!

If you have received a PFL that contains either 16(1) or 40(1) or another issue, please fill out the following form. Alternatively, you may book a consultation session with me. I also offer mentorship sessions for licensed practitioners.

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