The Federal Court has upheld the refusal of a permanent residence application in the Spouse or Common-Law Partner in Canada Class after an officer found that false marital information in an earlier temporary resident visa application amounted to TRV misrepresentation. The Court dismissed the judicial review application on October 8, 2026.
Case details and immigration background
In Musembi v. Canada (Citizenship and Immigration), 2026 FC 1241, Mr. Justice Joyal reviewed a September 13, 2024 decision finding the applicant inadmissible for misrepresentation under paragraph 40(1)(a) of the Immigration and Refugee Protection Act.
The applicant, a Kenyan citizen, applied for a temporary resident visa in December 2021. That application identified a person named Joan Nderitu as his spouse and stated that their marriage began in December 2018. The TRV was approved in about April 2023.
After arriving in Canada, the applicant married Mary Wanjohi in July 2023 and applied for permanent residence under the Spouse or Common-Law Partner in Canada Class in November 2023. In the permanent residence application, he answered that he had not previously been married or in a common-law relationship.
Officer rejected explanation for conflicting marital details
IRCC sent the applicant a procedural fairness letter in August 2024, identifying the inconsistency between the two applications and giving him 14 days to respond. The applicant said a travel agency had inserted the information about Joan Nderitu into his TRV application without his knowledge or consent to improve his visa prospects.
The immigration officer refused the permanent residence application after concluding that the applicant had directly or indirectly misrepresented material facts about his marital status. The officer found that the applicant was ultimately responsible for ensuring the information submitted to IRCC in his name was accurate and truthful.
The applicant argued before the Court that the officer had not properly considered innocent misrepresentation and that the process was procedurally unfair.
Court finds officer reasonably addressed innocent misrepresentation
Justice Joyal held that the officer had meaningfully considered and reasonably rejected the applicant’s innocent misrepresentation argument. The Court noted that paragraph 40(1)(a) does not require a misrepresentation to have been made knowingly or wilfully, and that it can include an indirect misrepresentation by a third party.
The Court described innocent misrepresentation as a narrow exception for truly extraordinary circumstances, where an applicant honestly and reasonably believes they are not misrepresenting a material fact, has no control over the misinformation and is unaware of it.
Even accepting that an agent may have added the false information, the Court found it was reasonably open to the officer to conclude that the applicant remained responsible for reviewing the TRV application before it was submitted in his name. The Court also noted that the TRV application contained no information about a representative.
No procedural unfairness found
The Court rejected the applicant’s arguments concerning the 14-day response period, further inquiries about his marital status and his examination at the port of entry. The applicant had responded to the procedural fairness letter within three days and had not requested an extension.
Justice Joyal found that the key issue was not whether the applicant had actually been married to Joan Nderitu, but whether he had previously made a false statement that he was. Evidence confirming that no such marriage existed would not remove the misrepresentation in the earlier TRV application.
The Court also found that the record did not establish that a Canada Border Services Agency officer at the port of entry had determined the applicant was not inadmissible for misrepresentation. In any event, an earlier examination would not prevent another officer from later assessing the issue.
The application for judicial review was dismissed. Neither party proposed a serious question of general importance for certification.
Source: Federal Court Decisions