Spousal Sponsor is Pregnant with Someone Else’s Child

When someone sponsors their spouse or common-law partner to immigrate to Canada, it can often be difficult to determine how detailed one’s application should be.  Should one include every aspect of their relationship history, including marital difficulties?  What about instances of fidelity?

Several Federal Court of Canada decisions involving cases of alleged misrepresentation against applicants offer guidance on this topic.

In Chen v. Canada (Public Safety and Emergency Preparedness),(“Chen“), Mr. Chen, a Chinese citizen, married Ms. Zou, a Canadian permanent resident. Ms. Zou then sponsored Mr. Chen for permanent residence.  While Mr. Chen’s application was in processing, a friend told him that his wife had been seen “in the company” of another man in Toronto.

When Mr. Chen arrived in Canada, he discovered that his wife pregnant with another man’s child.  According to Justice Harrington, Mr. Chen was willing to forgive his wife, and asked her to get an abortion. She refused. On many occasions she made sexual overtures to him but he was both unwilling and unable to perform. Ms. Chen “taunted Ms. Zou’s lack of manhood.”

As one would expect, the marriage shortly dissolved thereafter.

After the divorce, Mr. Chen married an old flame in China.  He then attempted to sponsor her for Canadian permanent residency.

Unfortunately for Mr. Chen, Canadian immigration authorities not only disallowed his new wife’s application, but also declared Mr. Chen to be inadmissible to Canada for misrepresentation in his own immigration application.

Essentially, the Canada Border Services Agency (“CBSA“) alleged that Mr. Chen’s first marriage to Ms. Zou was not genuine, that Mr. Chen lied to enter Canada, and that his permanent residency should accordingly be revoked.  Specifically, the CBSA was suspicious because Mr. Chen did not have a wedding reception upon arriving in Canada, he did not confront his wife about the rumours before he left China, and he did not return to China once his marriage to Ms. Zou dissolved.

Justice Harrington, however, held that in determining whether a marriage is genuine for the purposes of immigration, one has to consider whether the marriage was genuine in the first place, and whether it was still genuine when the Applicant arrives at a Canadian port of entry.

Regarding Mr. Chen’s failure to disclose to immigration officials the possibility of Ms. Zou having an affair, Justice Harrington noted that at the time of the interview Ms. Zou having an affair was only a rumor, and that the duty of candour did not oblige Mr. Chen to share mere worries.  As Justice Harrington wrote,

As to not sharing the rumours with the officer at the time of his interview, what material fact did he withhold? The only fact was that he had heard rumours. Even if they were true, it did not mean that the marriage was necessarily at an end. The Divorce Act specifically contemplates the possibility of reconciliation and the divorce papers jointly signed by the parties, which are to be found in the tribunal record, contain their joint statement that reconciliation was not possible.

In Osisanwo v. Canada (Citizenship and Immigration), a similar issue arose. There, a Canadian citizen filed an application to sponsor his parents to immigrate to Canada.  He included his birth certificate in the application to show that the people that he was applying to sponsor were his parents.  Ultimately, immigration officials required DNA testing, which showed that while his mother was indeed his mother, he was not his “father’s” son. Immigration officials determined that this constituted misrepresentation.

Justice Hughes, disagreed.  He noted that DNA testing proved that the mother was really the Canadian child’s mother, that the “father” had raised the child, and that the “father” had no reason to suspect that he was not the person’s biological father. As Justice Hughes noted:

History is replete with children born to and raised by a married couple, believing it to be their own. Must an applicant seeking entry into Canada disclose every extra-marital relationship conducted at a time where there is any possibility that a child might have been fathered by someone other than the husband? Surely our society has not found itself at that point.

The above two cases should not be taken to mean that applicants can never disclose extra-marital affairs when they apply to immigrate to Canada.  In Kawech v. Canada (Citizenship and Immigration)the Federal Court of Canada had to address a situation where someone failed to disclose the existence of a long-standing mistress.

Mr. Kawech, a Tunisian, married Ms. Charlotte, a much older woman who could not have any children.  Mr. Kawech also had a long-standing mistress with whom he had children.  Mr. Kawech did not mention the existence of this affair during the processing of his spousal sponsorship application.  When immigration officials eventually discovered it, they determined that his marriage to Ms. Charlotte was not genuine.

Madam Justice Gleason agreed, and determined that while applicants did not need to disclose every extra-marital incident, that a long-standing affair could reasonably cast doubt onto the genuineness of a marriage.

These three cases, and a string of similar cases at the Immigration Appeal Division, show that when completing their immigration paperworks applicants should keep in mind that in assessing the genuineness of a marriage there may be a difference between those who have one-night stands or flings, and those who are in extra-marital relationships that last close to one year.

As also shown above, the issue of extra-marital affairs in spousal sponsorship applications also goes beyond simply impacting whether a marriage is genuine.  A father who is informed by Canadian immigration officials that he is both not the biological parent of his child, which by itself would be devastating, may also discover that he is also banned from Canada for misrepresentation because he did not disclose what he did not know in his immigration application.

Fortunately, as long as applicants can show that they both (a) did not know that they were not the biological parents of their child and (b) that this belief was reasonable, the innocent mistake defence to misrepresentation would likely apply.


How the Post-Graduate Work Permit Program Works

The Post-Graduation Work Permit (“PGWP“) allows students who have graduated from most Canadian public post-secondary institutions to stay and work in Canada upon graduation.  As someone who remembers when I was in undergrad the frustration of international students who had to leave Canada upon graduating even though they would have jumped at the opportunity to stay, work, and pay taxes in Canada, it is certainly a welcome program.

PGWPs are open work permits. This means that international graduates who possess them can work for any employer.  There is no restriction on the type of work that can be performed.  Having said that, if a student wishes to work in health care or in education they will need to first obtain a medical exam. And, as with all work permits, PGWP holders are prohibited from working in the sex industry.

There is no requirement for a job offer prior to applying.

Eligibility

Outside of Quebec, in order for an international graduate to obtain a PGWP after graduating, an international student must:

  • have a valid study permit when applying for their PGWP;
  • have continuously studied full time in Canada, except for the final academic session, where part-time studies are permitted;
  • have completed and passed a program of study that is at least eight months in duration at either a public post-secondary institution, a private post-secondary institution that operates under the same rules and regulations as public institutions, or at a Canadian private institution if the student was enrolled in a program of study which led to a degree; and
  • apply for the work permit within 90 days of receiving written confirmation from their educational institution that they have met the requirements for completing their program of study.

If an international student in Canada completes a post-secondary program of study that is two or more years, the student can apply for a three-year work permit. If the program of study is between eight months and two years, then the student will be eligible for a work permit lasting for a period equal to the duration of the student’s  studies.

How to Apply

An international graduate must submit the application for a PGWP within 90 days, from either the date their final marks are issued or when they receive a formal written notification of graduation from the institution, whichever comes first, indicating that they have met the requirements of their program of study.

As well, their study permit must continue to be valid when you submit your application for a work permit.

The work permit application package and guide can be found on the Immigration, Refugees and Citizenship Canada’s website here. The checklist can be downloaded here. In addition to the standard forms and documents that are required for work permit applications, PGWP applicants are required to provide the following:

Combining Programs

One question that frequently arises is what would happen if a student obtains a second one-year diploma after having already completed a one-year diploma prior to that.  Would the student be eligible for a one year PGWP or a two-year one?

The answer is that the length of the two one-year degrees may be combined to obtain a three-year work permit.  For example, a student who obtains a one-year diploma program in Canada, and then completes a one-year MBA, well receive a three year PGWP.

Distance Learning

Students who complete a program of study by distance learning (from outside or inside Canada) are not eligible for the PGWP.

After much uncertainty over how this distance-learning policy was to be interpreted, pursuant to the IRCC website officers are recommended to use the following guidelines in their assessment of an applicant’s PGWP eligibility when they have taken distance or online learning in Canada:

  • when less than the majority of all the credits earned by the student toward the completion of a program of study were earned by completing online courses, a post-graduation work permit may be issued based on the length of the program as confirmed by the school, including credits earned from both in-class and online courses; and
  • when the majority of the credits earned by the student toward the completion of a program of study were earned by completing online courses, the applicant is ineligible for the PGWP, as the program may reasonably be considered a distance-learning program.

Implication of Doing a Victory Lap and Going on Exchange

While the PGWP requires full-time study, there is an exception for people in their last semester.

As well, going on exchange outside of Canada will not result in someone being ineligible to obtain a PGWP.

Open Spousal Work Permits

The spouse or common-law partner of a PGWP holder can obtain a work permit only if the PGWP holder is working in a skilled occupation as defined in National Occupational Classification 0, A or B of the National Occupational Classification website. To demonstrate this, the spouse or common-law partner should show the following.

  • a letter from their current employer confirming employment or a copy of their employment offer or contract; and
  • a copy of 3 of their pay stubs.

Refusal Rates

One of the more surprising things about the PGWP is its rather high refusal rate.  Indeed, during the first six months of 2016, the PGWP refusal rate exceeded 20% in every month except May, and in both June and March the refusal rate was 40% or more.

Although a breakdown of the reasons for refusal of PGWP applications has not been published, it is likely because international graduates either:

  • attended a private school whose graduates are not eligible to receive PGWPs (which, contrary to the opinion of some private institutions) is mot of them;
  • their application was returned for being incomplete and when they tried to apply again their study permit had expired; or
  • a visa officer determined that they did not meet the full-time studies requirement.

In order to avoid such rejections, it is important that students:

  • research their prospective educational institution so that they know whether it qualifies;
  • ensure that their PGWP application is complete and that it includes the correct fee amount; and
  • if there is any question about whether their studies were full-time, to make sure that it is explained in their application.

As with all applications, the onus is on the applicant to make sure that they have shown that they meet the requirements of the PGWP.  If something is unclear, the visa officer is not under any obligation to seek clarification, but can refuse the application. For this reason, it is imperative that international graduates ensure that their application is complete and satisfactory.


Section 7 of the Charter and Canadian Immigration Law

Section 7 of the Canadian Charter of Rights and Freedoms (the “Charter“) provides that:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

There have been several Supreme Court of Canada (the “Supreme Court“) and Federal Court of Appeal decisions involving s. 7 of the Charter and Canadian immigration law.

Continue reading “Section 7 of the Charter and Canadian Immigration Law”



Global Skills Strategy – Short Term (15 or 30 days) Work Permit Exemption

On February 6, 2018 Immigration, Refugees and Citizenship Canada (“IRCC”) clarified how its short term work permit exemption under the Global Skills Strategy would work.  Previously, the IRCC website simply stated:

Now, the IRCC website provides a much more comprehensive explanation of how the short term work permit exemption under the Global Skills strategy works.

General Conditions

The short-term (15 or 30 days) work permit exemptions are for certain high-skilled work and apply to foreign nationals coming to Canada to perform work that is both of a short duration (15 consecutive calendar days or 30 consecutive calendar days) and is in an occupation that is listed in skill type 0 (management occupations) or skill level A in the National Occupational Classification (“NOC”) matrix.

Such individuals may work in Canada without a work permit.

The periods can be as follows:

  • 15 consecutive days (if the foreign national has not been granted a work permit exemption under the Global Skills Strategy facilitating entry into Canada for short-term work in the last 6 months); or
  • 30 consecutive days (if the foreign national has not been granted a work permit exemption under the Global Skills Strategy facilitating entry into Canada for short-term work in the last 12 months).

The short-term work permit exemptions do not exempt people from the requirement to obtain a temporary resident visa or an electronic travel authorization, if applicable.

Entering and Exiting Canada

While foreign nationals are allowed to exit and re-enter Canada within the prescribed time frame (15 or 30 consecutive days) of work under the exemption, the authorized work period begins on the date the exemption is granted and is counted consecutively, regardless of whether the person is actually working in Canada.

IRCC is now specifically stating that any travel outside Canada after the date the exemption was granted will not extend the length of the exemption period. They provide the following example:

The foreign national was granted a 15-day exemption on August 1, 2017. If they travel outside Canada for 2 days within that 15-day period (August 6 to August 7, 2017), they may resume work activities on August 8 under this exemption until August 15, 2017, only.

Applicants from Inside Canada

Applicants already in Canada are not eligible to make an initial application within Canada for this exemption.

Renewals

Applicants can benefit from these short-term exemptions only if the necessary amount of time has elapsed since their last short-term exemption was granted. Consecutive uses are not permitted.

IRCC provides the following example on its website:

If a foreign national entered Canada under the 15-day work permit exemption and is required to work in Canada for another 15 days, they will not be eligible to renew their stay as a temporary worker. Six months must pass before foreign nationals are eligible to use the 15 day exemption again.

Working with Multiple Employers

IRCC on February 6, 2018 also clarified that the short term work permit exemption applies to the foreign national and not to the employer.

As well, if a foreign national enters Canada under the 15-day or 30-day work permit exemption and intends to work for more than one employer during that period, the foreign national is required to demonstrate that the work they intend to perform during that period meets the requirements of the short-term exemptions for all of their employers.

 


Minors in Immigration Detention

On November 6, 2017 Ralph Goodale, Canada’s Public Safety Minister, issued a Ministerial Direction to the Canada Border Services Agency (“CBSA”) titled Minors in Canada’s Immigration Detention System (the “Ministerial Direction”), as part of its National Immigration Detention Framework (the “NIDF”).  The Ministerial Direction notes that:

  • Canada’s immigration detention program is based on the principle that detention shall be used only as a last resort, in limited circumstances and only after appropriate alternatives to detention (“ATDs”) are considered and determined to be unsuitable or unavailable;
  • The well-being of children, family unity and the use of ATDs shall be core tenets underpinning policy direction, in accordance with the expectations and values of Canadians;
  • The best interests of a child shall be a primary consideration to be assessed against other primary and mandatory factors in legislation;
  • That Canada has the objective to stop the detention or housing minors and family separation, except in extremely limited circumstances;
  • That Canada will ensure that the detention or housing of a minor or the separation of a minor from his/her detained parent(s) or guardian(s) is for the shortest time possible; and
  • That Canada will never place minors in segregation or segregate them.

Prior to the NIDF and the Ministerial Direction the number of minors that the CBSA had been holding in detention had been steadily decreasing.

According to internal government statistics, from April 1, 2016 to December 31, 2016 the parents of accompanied minors were detained for the following reasons: 78.95% (90) for unlikely to appear, 10.52% (12) for examination, and 10.52% (12) for identity.

As well, the average length of time that a minor was detained also had fallen dramatically.

Given the current influx of refugees arriving in Canada from the United States, it will be interesting to see if CBSA is able to maintain the trend, even with the introduction of the NDIF.  If it does, then I think it would be reasonable to presume that the NDIF was a success.


The CBSA Search of Electronic Devices

Although it is uncommon for the Canada Border Services Agency to search the electronic devices of people entering Canada, it does happen. In an episode of the Borderlines Podcast, which I co-host with Peter Edelmann and Deanna Okun-Nachoff, we discussed the constitutional legalities of the CBSA searching electronic devices with Marilyn Sanford, a criminal defence attorney.

This post provides a summary of the CBSA’s actual policies on the searching of electronic devices at Canadian ports of entry.  The statutory ability of officers to do so derives from s. 139(1) of Canada’s Immigration and Refugee Protection Act, which provides that an officer may search any person seeking to come into Canada and may search their luggage and personal effects, including the means of transportation that conveyed the person to Canada, if the officer believes that doing so would be relevant to their admissibility.  This can include discovering possible criminal offences, unauthorized work, or a sole intention to reside permanently in Canada without having first obtained permanent resident status.

According to PRG-2015-31, officers are expected to understand and apply the following guidelines:

    • Where the the admissibility of a traveller is in question, officers are justified in performing examinations of digital devices and media to discover documentary evidence pertaining to admissiblity, or a false identity.
    • CBSA officers shall conduct examinations of digital devices and media with as much respect for traveller’s privacy as possible, considering that these examinations are usually more personal in nature than baggage examinations.
    • Prior to examination of digital devices, officers will where possible disable wireless and internet connectivity (including by setting the phone to airplane mode) to limit the ability of the device to connect to remote hosts.
    • CBSA officers shall only examine what is stored in the device.  Officers are not to read emails on digital devices and media unless the information is already downloaded and has been opened (meaning that it has been marked as read).
    • CBSA officers shall notate in their notebooks the indicators that led to the progressive search of the digital device, what areas of the device was searched, and why.
    • With the exception of devices that are biometrically protected, CBSA officers shall not allow a traveller to input a password into a digital device themselves. Rather, officers are to request the password.
    • Passwords are not to be sought to gain access to any type of account (including social, professional, corporate or user accounts). However, should travellers voluntarily provide their usernames and passwords, then CBSA officers will be authorized to view external accounts.
    • Where a person refuses to provide a password to a digital device, then CBSA may seize the digital device.  However, until the courts have settled the issue of whether this is legal, CBSA shall not arrest a person solely because they have not provided a password to their device.

A full copy of PRG-2015-31 can be found here.


Borderlines Podcast Episode 5 – Marilyn Sanford

On the 5th podcast episode of Borderlines, Marilyn Sanford joined Peter Edelmann and Steven Meurrens to discuss whether the Canada Border Services Agency (the “CBSA”) can search people’s electronic devices.

In addition, we discussed the recent stay of proceedings in the Nuttall decision, a well publicized case in which two individuals were charged with attempting to blow up the BC legislature. Marilyn was counsel to Mr. Nuttall, and provided her insights on the case.

Finally, Peter and Steve touched on recent developments in Canadian immigration law, including the Owner Operator Labour Market Impact Assessment recruitment exemption, a puzzling case in which the Federal Court upheld an officer’s determination that people who extend their visitor status in Canada cannot complete short term courses during that extension without first leaving Canada, and the Supreme Court of Canada dismissing leave in the Torres case.