IRCC Complaints About Immigration Consultants

In June 2017 I wrote an article for Policy Options about how I believed that while the existence of the immigration consultant profession in Canada promoted access to justice reforms were needed to strengthen the weeding out of some unethical behaviour.  One of the things that I recommended was that Immigration, Refugees and Citizenship Canada (“IRCC”) temporarily have the power to refuse to process applications submitted by people represented by consultants whom IRCC has previously determined to be unscrupulous, and that IRCC should also be allowed to levy fines against unscrupulous representatives in certain circumstances.

I recently received the results of an Access to Information Act request where the requester asked to see copies of all complaints sent by IRCC to provincial law societies and the Immigration Consultants of Canada Regulatory Council (the “ICCRC”), the body which regulates immigration consulants.  The results, which were over 13o pages, were astonishing for several reasons.

First, I have previously suspected despite general perception to the contrary that the number of complaints filed against immigration consultants was probably the same as against lawyers.  However, I seem to have been wrong. Based on the Access to Information Act results, it appears that IRCC has never filed a complaint about a lawyer to a provincial law society.  While it is possible that complaints against lawyers simply did not make their way into the Access to Information Act results, or that all of the complaints against lawyers were redacted, this seems unlikely, and at a minimum after reviewing the Access to Information Act results it is clear that the number of complaints that IRCC has made to the ICCRC about unscrupulous consultants dwarfs the number of complaints made about lawyers (which again appears to be none).

Second, the unethical behaviour that IRCC has encountered from unscrupulous representatives ranged from “what was that person thinking” to the truly disturbing.

Finally, the Access to Information Act results make it clear that IRCC is (or at least was previously as things may have changed since the release of the Access to Information Act results) frustrated with the ICCRC disciplinary process.  I know many upstanding immigration consultants who are exasperated with what some of their fellow less ethical colleagues appear to have gotten away with impunity.  These concerned professionals would not be comforted in learning how broken the complaints process between IRCC and the IRCC appears to be.

Examples of Complaints

Not all of the complaints that IRCC made to the ICCRC were related to particularly egregious conduct.  Indeed, some of the actions appear to simply be childish behaviour.  For example, as shown in the screen shots below, one instance involved an immigration consultant who submitted a request for a status update on the reconsideration request for a client whose permanent residence application was refused.

The visa office responded by stating that an immigration officer had reviewed the immigration consultant’s reconsideration request, and that the visa office was maintaining the refusal.

The immigration consultant responded by calling the visa officers assholes.

One can only wonder what was going through this person’s head.

Most of the other complaints that IRCC sent the ICCRC were for much more egregious behavior.  For example, in one case IRCC sent the ICCRC a complaint which contained allegations that an immigration consultant was conspiring with an educational institution to provide fake transcripts to international students who were not attending the school but needed proof of attendance to renew their study permits.  As IRCC’s complaint noted, this constitutes criminal behaviour (s. 127 of IRPA pertains to criminal misrepresentation).

In another case a consultant allegedly counselled his clients who wished to seek asylum in Canada to pretend that they were gay and to even “attend [a] gay pride parade in order to support their claims.”  The issue of the Refugee Protection Division (the “RPD”) occasionally requiring that LGBT claimants prove their sexual orientation is controversial.  The idea that an authorised representative has apparently been recommending that people fabricate their orientation is insulting to everyone who represents legitimate LGBT claimants.

Other examples of complaints that IRCC sent the ICCRC include situations where consultants:

  • advised privately sponsored refugee that he had to pay all resettlement costs;
  • encouraged clients to contact Members of Parliament on the basis that MPs can help expedite applications;
  • fabricated employer reference letters;
  • forged signatures;
  • counselled misrepresentation; and
  • advertised in a way to suggest that they had inside connections at IRCC.

In highlighting all of the above my point is not to disparage all immigration consultants. As I have said repeatedly, many, if not most, immigration consultants are upstanding and provide valuable advice to their clients.  Early on in my practice one of my mentor’s was a licensed consultant.  Rather, in reproducing and summarizing the complaints above my goal is to demonstrate that IRCC has been diligently referring complaints about unethical behaviour on the part of some immigration consultants to the ICCRC.

As well, it is of course necessary to note that all of the complaints that IRCC sent to the ICCRC are allegations.  However, most appear to have been well founded and were substantiated by documentary evidence.

Frustration with the Disciplinary Process

The Access to Information Act results also demonstrated a certain level of frustration amongst IRCC with the ICCRC disciplinary process.  When reading the disclosed documents I was astounded at how IRCC complaints were handled.  I really hope that there is more co-operation than what the Access to Information Act results revealed, or that things have changed, because if not, the current situation is simply depressing.

In almost every instance, the ICCRC Complaints Committee determined that it had decided not to refer an IRCC complaint about unscrupulous behaviour to the ICCRC Disciplinary Committee.  What was very interesting to read was that the letter that the ICCRC representative sent IRCC conveyed the impression that the author didn’t even realize that the complainant was the government.   The ICCRC even informed IRCC, a government agency, that if it wanted a refund for the consultant’s services that IRCC would have to pursue the matter in a local “small claims court.”

Given the ICCRC’s boiler plate responses which often did not seem to even acknowledge that the complainant was the government, it was not surprising then to see that in some of its complaints, IRCC expressed frustration with the ICCRC complaints referral process process.  For example, in one instance, IRCC sent a second complaint to the ICCRC about a particular immigration consultant and expressly stated that the ICCRC’s response to the matter had been insufficient.

In another example, IRCC essentially demanded an explanation for why no action had apparently been taken by the ICCRC against an immigration consultant who had an active arrest warrant for counselling misrepresentation and who had fled the country.

It is also apparent that in response to IRCC’s expressed dissatisfaction with the ICCRC disciplinary process that the ICCRC committed to changing its processes.  Indeed, as shown below, in May 2015 ICCRC legal counsel even met with IRCC to discuss the issue.  The ICCRC subsequently committed to changing how it handles complaints.

While it is possible that these changes have resulted in a more robust disciplinary mechanism, I am skeptical.  For one, many of the e-mails from the ICCRC to IRCC in which the ICCRC treated the government as if it were the client of an immigration consultant post-date the above letter.  As well, at the Standing Committee of Citizenship and Immigration an Assistant Deputy Minister with the Ministry of Immigration, Refugees and Citizenship Canada stated in May 2017 about the ICCRC that:

I don’t think we’re where we need to be yet. I think there are issues with the organization that can be strengthened in terms of its own internal governance, in terms of some of its issues around finance, and thirdly, I think, in terms of sometimes the effectiveness of its own enforcement processes. This includes ensuring timely enforcement that is appropriately calibrated to the nature of the infraction, and ensuring that there’s follow up in those areas.
I think it’s an organization that is, frankly, still finding its feet. It’s still fairly early days and it has made real progress, but, yes, there are areas where it can be strengthened.

I continue to believe that most immigration consultants play a valuable role in ensuring access to justice. I also think that it makes little sense to replace the ICCRC, which is only six years old, with a new regulatory body that has no experience.  However, until the ICCRC “finds its feet” (to quote the Assistant Deputy Minister) Canada’s immigration department should have the ability to sanction or refuse to process applications from consultants that it knows are unethical.  Such a temporary measure would ultimately be in the best interests of the ICCRC, the immigration consulting profession, and the integrity of Canada’s immigration system.


Getting Permanent Residency as an Owner or Self-Employed Person

The following is an article that I wrote for The Canadian Immigrant. 

It is generally understood that small businesses are the bedrock of the Canadian economy. The entrepreneurs who start them are often considered the lifeblood of the Canadian economy. Unfortunately, it can be difficult for foreign worker entrepreneurs in Canada to use their Canadian business experience to qualify for economic immigration programs. Prospective immigrants who are self-employed or run small businesses in Canada, or want to, need to understand the immigration consequences of doing so in order to properly structure and time the establishment of their companies.

Self-employment and immigrating

Many of Canada’s economic immigration programs restrict or penalize Canadian self-employment. For example, one of the basic eligibility requirements of Canada’s largest economic immigration program, the Canadian experience class, is that applicants have at least 12 months of skilled work experience within three years of applying to immigrate. It specifically excludes self-employment from being eligible experience.

In the Express Entry application intake management system, prospective immigrants to Canada are ranked against each other. People can get points for a variety of factors, and points for Canadian work experience can be especially valuable. However, any experience that was gained through self-employment is ineligible for points.

Incorporating isn’t the answer

Many individuals assume that if their business is incorporated then they will not count as being self-employed. However, it is not this simple.

Immigration, Refugees and Citizenship Canada (IRCC) adopts a holistic approach to determining whether someone is self-employed. Relevant factors include: the degree of the worker’s control or autonomy in terms of how and when work is performed; whether the worker owns and provides their own tools, the degree of financial risk assumed by the worker; whether the worker is free to make business decisions that affect his or her ability to realize a profit or incur a loss; and other relevant factors.

The IRCC website specifically notes that individuals who own substantial ownership and/or exercise management control of a business for which they are also employed are generally considered to be self-employed. So simply incorporating a business does not shield small business owners from having their Canadian work experience determined ineligible for immigrating.

Options for the self-employed

Because of this, the best advice for temporary foreign workers in Canada who are employees and who wish to start a business is to wait. We once represented a Working Holiday Program participant who worked as a carpenter earning $25 an hour. He wanted to start his own business. We told him to wait until his permanent residency was approved. He did, got his PR status and now runs a multi-million dollar business employing more than 30 people. Incredibly, Canadian immigration requirements would have made his immigration very cumbersome and uncertain had he started his business while on a work permit.

However, foreign workers in Canada who own a small business should not be completely discouraged. There are many options to consider.

First, the federal skilled worker class permits self-employment. This means that self-employed individuals can still qualify for Express Entry.

Second, while Canadian work experience that is self-employment is not eligible for Express Entry points, small business owners can qualify for bonus points through qualifying arranged employment. They may also apply for recruitment exempt owner-operator Labour Market Impact Assessments, which also result in additional points.

Third, many provincial nomination programs contain entrepreneur programs, which vary from province to province.

Finally, the start-up visa allows certain businesses who will be participating in incubators or receiving venture capital funding to be eligible to immigrate.

None of these options, however, is completely satisfactory. What is further confounding is that while a foreign worker’s entrepreneurial experience in Canada is ineligible for Express Entry points, their foreign self-employment work experience is. As the Government of Canada looks to encourage small business growth, they may wish to address this paradox.


Addressing Concerns About Marriage Fraud

(The following is an article that I wrote for Policy Options.)

On April 13, 2017, the Trudeau government fulfilled a campaign promise from the 2015 federal election by eliminating the status of conditional permanent residency from Canada’s family reunification immigration programs. From 2012 to 2017, under rules implemented by the previous Harper government, immigrants who were married or in a common-law relationship with a Canadian citizen or permanent resident for less than three years before being sponsored by their partner for permanent residency would become conditional permanent residents. The “condition” was that if they separated from their partner within two years of immigrating, they could lose their status and be removed from Canada.

The Trudeau government’s decision to end conditional permanent residency was treated with jubilation by most Canadian immigration lawyers and observers; many stakeholders remarked how callous and draconian the Conservatives were to have introduced such a measure in the first place. Indeed, the Liberal government stated when it repealed conditional permanent residency that it was taking this action to uphold its commitment to family reunification, support gender equality and combat gender violence. The implication, of course, was that the Conservatives did not care about any of these things.

Although I supported the repeal of conditional permanent residency, I believe that some of the criticism of the previous government has been unfair. Now that the dust has more or less settled, I hope to offer a more balanced summary of why the Conservatives introduced conditional permanent residency, why its repeal was a good thing and why those who are concerned about marriage fraud should have confidence in Canada’s immigration system.

Why conditional permanent residency was introduced

When the Conservatives introduced conditional permanent residency in 2012, their objective was to combat marriages of convenience. According to a regulatory impact analysis statement published in 2012, Canada’s immigration department processed approximately 46,300 applications in 2010 from people who wished to immigrate because they were the spouse or common-law partner of a Canadian. About 16 percent of these were refused, mostly because immigration officials determined that the marriages were not genuine and were instead entered into primarily for immigration purposes. As shown in tables 1 and 2, the separation rate for recently sponsored immigrants was much higher than the overall Canadian divorce rate during the years following a marriage.

Although the two tables offer a flawed comparison in that they measure different things, it is apparent that the separation rate for recent immigrants under Canada’s family reunification program was high from 2000 to 2010. This was especially so for relationships that the immigration officials had initially suspected were fake but where the prospective immigrant had won an appeal before an independent administrative tribunal. Therefore, it seems at least reasonable for the Conservatives to conclude that many people were slipping through cracks in program integrity safeguards and immigrating to Canada through fake marriages.

These statistics also matched what the Conservative government was hearing from ordinary Canadians. Jason Kenney, then Minister of Citizenship and Immigration Canada, conducted a series of town hall meetings in 2010-11 in which Canadian citizens and permanent residents lamented the treatment they had received from the immigrant partners they had sponsored. Some appeared to have been victims of organized crime. At a town hall that I observed, one woman even showed a scar from a bullet wound that she had sustained when she confronted the extended family of the person she had sponsored. I left the town hall with the clear impression that, rightly or wrongly, many Canadian sponsors were angry at an immigration system that they felt left them vulnerable to being victims of marriage fraud.

The Conservatives, in response, researched ways to strengthen the integrity of Canada’s family reunification programs. Noting that many other Western countries, including the United Kingdom and the United States, had (and still have) conditional permanent residency programs for sponsored spouses and common-law partners, they implemented something similar.

How conditional permanent residency worked

In Canada, conditional permanent residency applied from 2012 to 2017 to spouses or common-law partners who were in a relationship of three years or less with their Canadian sponsor and had no children in common with their Canadian sponsor at the time that they submitted their sponsorship application. The condition required the sponsored spouse or partner to cohabit in a conjugal relationship with their sponsor for two years following receipt of their permanent resident status, regardless of how long the immigration application took to process. If they did not, they could lose their permanent resident status and be removed from Canada, unless there were significant humanitarian or compassionate reasons to let them stay.

Conditional permanent residency ceased to apply if there was evidence of abuse or neglect by the Canadian sponsor, or of a failure by the sponsor to protect their immigrant partner from abuse or neglect by the sponsor’s family members. Abuse was broadly defined and included physical, emotional and financial mistreatment.

2017 regulatory impact analysis statement reports that, from 2012 to 2017, 94,400 people were admitted as conditional permanent residents, representing approximately 52 percent of spousal and common-law partner sponsorship immigrants. During this time, 597 people requested an exception to the requirement to cohabit with their Canadian sponsor, due to abuse or neglect. Out of the 528 cases for which a decision had been made when the Trudeau government repealed the law, 78 percent of abuse exemption requests were approved.

Problems with conditional permanent residency

As soon as conditional permanent residency was implemented, it was clear that there were problems with the law, many of which were clearly unintended consequences. By far the most severe shortcoming of conditional permanent residency was that many people did not know about the abuse exception to the two-year cohabitation condition and, sadly, stayed in abusive situations to avoid deportation.

The second issue with the abuse exception was that some recent immigrants would make false allegations of abuse in order not to lose their status. In some cases the Canadian sponsors felt so terrible about ending a marriage or common-law relationship with a recent immigrant, knowing that this outcome would lead to the possible deportation of their partner, that they were even willing to participate in the fabrication. During one memorable consultation, a Canadian sponsor who wanted to amicably end his common-law relationship but did not want his partner to face removal from Canada went so far as to ask me how hard he would have to hit her in order for her to qualify for the abuse exception to conditional permanent residency. Frankly, I don’t think the Conservatives realized how far some people would go to stay in Canada, and how difficult it would be for immigration officials to adjudicate whether there was abuse.

Finally, the problem with conditional permanent residency that impacted the largest number of people was that it applied to those who were already inside Canada and who could have obtained permanent residency through economic immigration programs, but instead chose Canada’s family reunification stream because of faster processing times and the ability to work on open-ended work permits during processing.

For example, an international graduate who had been living here with her girlfriend for one year and working for a Canadian employer might have qualified under both the economic and the family reunification programs. From 2012 to 2015, however, the Conservatives frequently imposed application caps on certain economic immigration programs, and in some cases they even terminated whole classes of applications that were in processing. So it was not uncommon for many individuals to submit immigration applications under both economic and family reunification programs. Applicants who succeeded in being admitted through family reunification were then subject to conditional permanent residency, even though they had been working and living in Canada well before they had applied to immigrate. Unfortunately, the rules left some people trapped in relationships that they did not want to stay in. Such outcomes made it clear that the solution to marriage fraud should not be to impose hardship on all in order to catch a few.

Conclusion

While the repeal of conditional permanent residency might have caused some to think that the Liberals are soft on marriage fraud, it is important to note that the Trudeau government is maintaining two other significant measures that the Harper government introduced to address the issue.

The first Conservative reform that remains in place is the requirement that applicants must show that their marriage is genuine at the time of the visa officer’s assessment and that it was not entered into primarily for an immigration purpose. Before 2010, prospective immigrants had to prove only one or the other.

Second, in March 2012 the Conservatives introduced measures prohibiting immigrants who had been sponsored by a Canadian spouse or common-law partner from sponsoring a new spouse or common-law partner within five years after they immigrated. This change has prevented people from marrying a Canadian, immigrating to Canada, quickly divorcing the Canadian, travelling abroad, marrying someone else and then sponsoring that person to immigrate.

Given that both these reforms remain in effect, the Trudeau government’s approach to combatting marriage fraud can perhaps best be described as “three steps forward, one step back.” Supporters of both parties should have confidence that Canada currently has a system to combat marriage fraud that, while not perfect, generally works.

 


The Inside Canada vs. Outside Canada Sponsorship Process

One of the quirkier features of Canadian immigration law is the distinction between what is generally referred to as the “Inside-Canada Sponsorship” process and the “Outside-Canada Sponsorship” process.  The biggest myth is that if a couple is residing in Canada then they must use the “Inside-Canada Sponsorship” process.  This is not true.  However, each program contains advantages and disadvantages vis-a-vis the other, and I have provided a list of the key features and requirements of each program below.

 

Inside-Canada Process

Outside-Canada Process

The spouse/common-law partner must be in a genuine, conjugal relationship that was not entered into for the primary purpose of acquiring an immigration benefit. The spouse/common-law partner must be in a genuine, conjugal relationship that was not entered into for the primary purpose of acquiring an immigration benefit.
The spouse/common-law partner must reside together in Canada. The spouse/common-law partner do not have to reside together in Canada.  As well, once a common-law relationship is established, periods of separation will not change their common-law status if there is a short separation that does not sever the common-law partnership.
The applicant must live with the spouse/common-law partner inside Canada during the duration of processing. The applicant can live with the spouse/common-law partner inside Canada during the duration of processing, but does not have to.
The immigration paperwork is sent to a processing center inside Canada, and remains in Canada. The immigration paperwork is sent to a processing center inside Canada, and it then may be transferred to a visa post outside of Canada.
If the applicant has valid temporary resident status in Canada, and submits an application to extend that status inside Canada with the permanent residence application, then the applicant will have implied status during the processing of the permanent residence application, provided he/she does not leave Canada. If the applicant has valid temporary resident status in Canada, he/she must maintain his/her status. The process is separate from the permanent residence application, and there is no implied status for the duration of processing.
Immigration, Refugees and Citizenship Canada will process the application even if the applicant does not have valid temporary resident status in Canada.  If an individual has an application in processing, and is detained by the Canada Border Services Agency for being without status, then the applicant will generally benefit from a 60 day deferral period, and Citizenship and Immigration Canada will endeavour to process the permanent residence application within 60 days. Immigration, Refugees and Citizenship Canada will not process the application if the applicant does not have valid temporary resident status in Canada.
The current processing time is 12 months.  The Applicant will receive “first-stage approval” at around the half-way point if it is determined that the spouse/common-law partnership is bona fide, and the applicant will be entitled to an open work permit. Processing times vary depending on the visa post, and range from 4 months to 38 months.   There is no first-stage approval for the issuance of open work permits.
There is currently a pilot project in place to provide work permits to applicants who have valid temporary resident status after 2ish months of processing. The permanent residence application is completely separate from any ability to work in Canada.
There is no appeal right to the Immigration Appeal Division.  The only recourse is an application to Federal Court for judicial review. There is a general appeal right to the Immigration Appeal Division, except for refusals based on serious criminality, terrorism, national security, espionage, and similar serious matters.  The only recourse in those situations is an application to Federal Court for judicial review.
If the applicant leaves Canada and is for whatever reason denied re-entry by the Canada Border Services Agency, then the permanent residence application will be refused, and the applicant must start over from outside Canada. If the applicant leaves Canada and is for whatever reason denied re-entry by the Canada Border Services Agency, this will generally not impact the permanent residence application.

Labour Market Impact Assessment – Recruitment Requirements (2017)

(This post is a follow-up to my previous post on this topic here.)

Employers wishing to apply for Labour Market Impact Assessments are required to first conduct recruitment efforts to hire Canadian citizens and permanent residents.

The Ministry of Economic and Social Development (“ESDC” or “Service Canada“) is very stringent in its recruitment requirements, some of which are not publicly available.  I would like to thank Jacobus Kriek, an immigration consultant with Matrixvisa Inc., for providing me copies of the internal Service Canada directives and e-mails that he has obtained.

Please note that what I have reproduced below should not be viewed as legal advice by ESDC or Service Canada.  The reproduction of the material below has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada. As well, given the nature of relying on internal documents, some of the information may be out of date.

Continue reading “Labour Market Impact Assessment – Recruitment Requirements (2017)”


Labour Market Impact Assessments – Recruitment Requirements (2016)

Employers wishing to apply for Labour Market Impact Assessments are required to conduct recruitment efforts to hire Canadian citizens and permanent residents.  The Ministry of Economic and Social Development (“ESDC” or “Service Canada“) is very stringent in its recruitment requirements, many of which are not publicly available.  In this blog post I seek to provide a comprehensive overview of Service Canada’s recruitment requirements, including providing a summary of the publicly available information on the Service Canada website, as well as summarizing and reproducing internal ESDC directives.

I would like to thank Jacobus Kriek, an immigration consultant with Matrixvisa Inc., for providing me copies of the internal Service Canada directives and e-mails that he has obtained.

Please note that what I have reproduced below should not be viewed as legal advice by ESDC or Service Canada.  The reproduction of the material below has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada. As well, given the nature of relying on internal documents, some of the information may be out of date.

Continue reading “Labour Market Impact Assessments – Recruitment Requirements (2016)”


Undisclosed Criminal Records and Criminal Rehabilitation

A difficult situation that some prospective immigrants who are already inside Canada face is that they have a criminal record that they have not previously disclosed to Canadian immigration officials.

What is often especially unfortunate in such situations is that the criminal conviction can be really old, but the instances where someone failed to disclose their conviction to Canadian immigration officials more recent.

Having successfully represented several individuals in such situations obtain permanent residency, there are several legal principles that I think anyone in such a situation needs to understand.

1. An individual who has a foreign criminal record can apply to Canadian immigration officials for a determination that they are rehabilitated if it has been more than five years since the sentence was completed.  

Rehabilitation assessments are forward-looking. The test is whether a person is likely to commit criminal conduct.  Officers must consider both positive an neutral factors relevant to the application.

2. An individual not disclosing a criminal record to Canadian immigration authorities can be treated as a negative factor in a rehabilitation assessment. 

The Federal Court has in several cases (such as Tejada v. Canada) held that an individual’s past dealings with Canadian immigration authorities is a relevant factor in determining whether an individual is likely to commit a criminal offence in Canada in the future, with the logic being that a person who is willing to break immigration legislation might also be willing to break criminal laws.

3. In determining whether someone has misrepresented the existence of a criminal record, it is important to analyze one’s previous interactions with Canadian immigration officials on this issue. 

Prior to the introduction of the Electronic Travel Authorisation, people who could travel to Canada without a visa were often never asked if they had a criminal record.  This was especially true for individuals who applied for work permits at Canadian ports of entry.  Because these individuals were never directly asked whether they had criminal records, visa officers were more forgiving for their omission than they would have been for someone who had outright misrepresented.

Immigration officials are also generally forgiving where someone did not realise that they were charged with a criminal offence. The most frequent area that this occurs is in the drunk driving context, which in many jurisdictions is dealt with administratively rather than criminally.  Indeed, the Canadian province of British Columbia provides a good example of how complicated it can be to know whether one has been charged with a criminal offence.  Police officers in British Columbia can decide to issue someone roadside citations under provincial regulations rather than criminal ones.  If someone were later asked whether they had ever been charged with a criminal offence it is unclear what they should say.

4. It is better to disclose than be caught.

As a general rule immigration officials are much more forgiving to individuals who disclose criminal records than to those who are caught with them.


Procedural Fairness Where Credibility is an Issue

In any application to Immigration, Refugees and Citizenship Canada (“IRCC“) the burden is on the applicant to put forward a complete, convincing and unambiguous application which provides sufficient evidence to establish that the requirements of Canadian immigration legislation have been met.

Visa officers are not under an obligation to ask for additional information where the submitted material is insufficient.

However, where there is a concern regarding the credibility or the genuineness of the evidence submitted, as opposed to the sufficiency of or weight to be given to that information, then the duty of fairness generally requires that the applicant be given the opportunity to address the concern.

Examples from Jurisprudence

Farooq v. Canada, 2013 FC 164 (“Farooq“) is a useful example of how to distinguish a refusal based on credibility concerns vs. one of insufficient evidence. There, IRCC’s refusal letter stated:

He claims he worked from January 2005 to August 2006 as software developer and from 2006 to present as manager (software development) for Tricastmedia PVT Ltd in Lahore Pakistan. Such rapid promotion is not credible as computer and information systems managers normally require several years of experience in systems analysis, data administration software engineering, network design or computer programming, including supervisory experience. Some of the duties in his employment letter repeat verbatim the duties of NOC 0213 which raises the question of the credibility of that employment letter. The other duties are similar to those of information systems analysts and consultants (NOC Code 2171).

Although the NOC Code 0213 corresponds to an occupation specified in the instructions, the information submitted to support this application is insufficient to substantiate that applicant meets the occupational description and/or a substantial number of the main duties of NOC 0213.

Justice Roy’s reasons in determining that the failure of the visa officer to provide the applicant with an opportunity to respond to his concerns about credibility was a breach of procedural fairness provide a comprehensive summary of the law on this issue, and I have reproduced them in full, bolding the key points:

Justice O’Keefe was confronted to the same kind of situation in the case of Patelsupra. (“Patel“) Paragraphs 24 to 27 seem to me to apply squarely to the situation at hand. They read:

Regulation 75 clearly indicates that a foreign national is only a skilled worker if he can show one year of full time employment where he performed the actions in the lead statement of the NOC and a substantial number of the main duties.

As such, if the visa officer was concerned only that the employment letter was insufficient proof that the principal applicant met the requirements of Regulation 75, then she would not have been required to conduct an interview.

However, the officer states that her concern is that the duties in the employment letter have been copied directly from the NOC description and that the duties in the experience letter are identical to the letter of employment. I agree with the principal applicant that the officer’s reasons are inadequate to explain why this was problematic. I find that the implication from these concerns is that the officer considered the experience letter to be fraudulent.

Consequently, by viewing the letter as fraudulent, the officer ought to have convoked an interview of the principal applicant based on the jurisprudence above. As such, the officer denied the principal applicant procedural fairness and the judicial review must be allowed.

The narrow issue that needs to be decided here is whether or not this is a case regarding the sufficiency of the evidence, in the sense that, in the words of Justice Richard Mosley in Hassani v. Canada (Minister of Citizenship and Immigration), 2006 FC 1283, [2007] 3 FCR 501:

there is no obligation on the part of the visa officer to apprise an applicant of her concerns that arise directly from the requirements of the former Act or Regulations …

It is also certainly true that a visa officer does not have an obligation to provide a “running score” of the weaknesses in an application. However, where the issue is credibility, “the duty of fairness may require immigration officials to inform applicants of their concerns with applications so that an applicant may have a chance to “disabuse” an officer of such concerns, even where such concerns arise from evidence tendered by the applicant” (Rukmangathan, above, at paragraph 22). Justice de Montigny, in Talpursupra, finding support inHassani, summarized clearly what I believe is the state of the law:

It is by now well established that the duty of fairness, even if it is at the low end of the spectrum in the context of visa applications … require visa officers to inform applicants of their concerns so that an applicant may have an opportunity to disabuse an officer of such concerns. This will be the case, in particular, where such concern arises not so much from the legal requirements but from the authenticity or credibility of the evidence provided by the applicant.

Here, the visa officer indicates clearly that the credibility of the applicant, or lack thereof, is the fundamental concern he has. Contrary to other cases where an opportunity is given to the applicant to address the concerns, there is nothing of the sort in this case. It would seem to me that both Patel and Rukmangathanare dispositive of the issue and that the matter should be remitted to a different visa officer for the purpose of a re-determination of the matter.

Another example of this principle can be found in Madadi v. Canada, 2013 FC 176.  There, in determining that an applicant did not perform a substantial number of the Main Duties in NOC 0711, IRCC did not consider any duties in the applicant’s confirmation of employment which either copied the NOC descriptions or closely paraphrased them.  After not considering those job duties, the officer found that the applicant did not perform a substantial number of the duties listed in NOC 0711.  The Court determined that procedural fairness was breached, because the visa officer’s concerns related to the genuineness of the confirmation of employment.

Examining Whether Credibility is an Issue

When reviewing refusal reasons it is important to examine whether credibility may have been an issue leading to refusal.

Sometimes it is obvious.  For example, in Azizian v. Canada, a visa officer wrote:

 Given the availability of the information [about the CBI], I found it difficult to believe that the applicant has never heard of these concerns during his employment at CBI and since retiring… I do not find credible that the applicant would have not been involved in policy decision making and decisions concerning allocation of funds, especially since the PA held the position of Secretary General of the bank and because he indicated in his affidavit that his duty in 2003-2009 was to develop and supervise the implementation of the by-laws and guidelines for the Iranian banking system.

This was found to clearly be a credibility concern.

Credibility assessments are often implicit, however, rather than explicit. In Khodchenko v. Canada (Citizenship and Immigration), IRCC’s refusal reasons in part stated that:

REVIEWED INFO SUBMITTED FOR THE FILE. PI’S EXPENCES WILL BE PAID BY MR. NAZAREVICH – FAMILY FRIEND. IT IS NOT CLEAR WHY HE WOULD PAY SUCH AMOUNT OF MONEY FOR PI. NOT SATISFIED PI IS FORTHCOMING ABOUT THE PURPOSE OF THE TRIP. TIES TO UKRAINE ARE WEAK. REFUSED. (sic) [emphasis added]

The Federal Court found that the officer made a veiled credibility assessment of the benefactor and the applicant in questioning that the employment arrangement was what the applicants said it was, and that the officer accordingly owed a duty of fairness to the applicant to put his concerns directly and explicitly and give her an opportunity to respond.

In Rani v. Canada (Citizenship and Immigration), meanwhile, Madam Justice Strickland found that a visa officer’s  statement that “evidence of [the applicant’s] involvement with spouse’s business comes only from her own statements and that of her supporting relative in Canada. It is therefore not clear to what extent the context of English language use…could be considered familiar” to also be an implicit credibility assessment, and ordered the matter re-decided.

Another Helpful Summary of this Principle

Bajwa v. Canada (Immigration, Refugees, and Citizenship) contains another helpful summary of the distinction between credibility and insufficient evidence. There, Justice Russel wrote:

These words give rise to a familiar dispute in the jurisprudence as to whether the Visa Officer is questioning the credibility of the Applicants or simply deciding that the evidence is not sufficient to support the criteria that must be established in order to qualify for the status applied for. Justice Kane provided a summary of the Court’s approach to this issue in Ansari v Canada (Citizenship and Immigration), 2013 FC 849:

If the concern is truly about credibility, the case law has established that a duty of procedural fairness may arise [Hassani]. However, if the concern is about the sufficiency of evidence, given that the applicant is clearly directed to provide a complete application with supporting documents, no such duty arises. Distinguishing between concerns about sufficiency of evidence and credibility is not a simple task as both issues may be related.

The case law has established that each case must be assessed to determine if the concern does in fact relate to credibility. In several of the cases referred to, although the duties were copied or paraphrased from the NOC, there were additional factors confirming that the concern of the officer was about the authenticity or veracity of the document or the credibility of the author of the document. Simply using the term credibility is not determinative of whether the concern is about credibility, though the use of the term cannot be ignored.

Applicants often find it very difficult to understand this distinction. They reason that if their own representations are not accepted then they are not believed, so the officer concerned must be questioning their credibility and this requires an interview or an adequate opportunity to address credibility on grounds of procedural fairness.

I think the issue is best explained in lay terms by recognizing that applicants have a double obligation. First of all, they are under a duty of candor to tell the truth and not to conceal relevant facts. If an officer suspects that the duty of candour is not being met, then he or she must put the matter to the applicant and provide a reasonable opportunity – either in writing or in person – for the applicant to address the officer’s concerns. Where misrepresentation or breach of the duty of candor is the issue, then an application is usually refused on the basis of misrepresentation and s 40 of the Act.

But applicants also have an obligation – over and above the duty of candor – to support their applications with documentation that confirms their positions. Documentation is required by the legislation in all applications and a failure to provide adequate documentation can result in a refusal that is not based upon credibility. If this were not the case, then all applications would have to be accepted upon their own unsupported assertions. There will be situations where documentation is not available and the Act makes adequate allowances for this. Applicants are permitted to explain why they cannot provide documents that are required and/or expected in their particular situations.

In the present case, the treatment of the two letters from Mr. Singh has to be read in the context of the Decision as a whole in order to determine what the Visa Officer means by “satisfied.” Does she mean that the evidence is inadequate to support the application or does she mean that she questions the veracity of that evidence when she says that “I am not satisfied that the client is a bona fide worker under R 205 (D) or will leave after her authorized stay.”

In all work permit applications and extension applications, the officer has to decide on the evidence whether the applicant is likely to leave at the end of the period requested. And interviews and/or fairness letters are not required in most situations. As the Respondent points out, it is generally not a procedural fairness requirement that work permit applicants be granted an opportunity to respond to the concerns of officers. However, there have been situations in the context of work permit applications where officers have been required for reasons of procedural fairness to seek further clarification for credibility concerns in particular.

In Hamza v Canada (Citizenship and Immigration), 2013 FC 264, the application was rejected on the basis that the work experience letter mirrored the job duties of the NOC description, which the visa officer described as “self-serving.” Justice Bédard found that by stating the letter was self-serving, the officer was saying that he or she doubted the veracity of its content. It was thus distinguished from Kaur, above, because the applicant had provided sufficient evidence and a duty to provide the applicant an opportunity to respond was found. The decision quoted Justice Snider in Perez Enriquez v Canada (Citizenship and Immigration), 2012 FC 1091:

The first duty raised by the Applicant is the duty to seek clarification. When an Applicant puts his or her best foot forward by submitting complete evidence and a visa officer doubts that evidence, the officer has a duty to seek clarification (Sandhu, above at paras 32-33). Although this duty is not triggered in situations where an applicant simply presents insufficient evidence, it will arise if the officer entertains concerns regarding the veracity of evidence; for example, if the officer questions the credibility, accuracy or genuine nature of the information provided (Olorunshola, above at paras 32-35). On the facts of this case, a duty to clarify may have arisen but was discharged by the Officer’s questions to the Applicant during the interview. There was no breach of fairness.

The second duty raised by the Applicant is a duty to provide an opportunity to respond. When an applicant submits information that, if accepted, supports the application, he or she should be given an opportunity to respond to the officer’s concerns if the officer wishes to make a decision based on those concerns (Kumar, above at paras 30-31). Procedural fairness may require an interview; for example, if a visa officer believes an applicant’s documents may be fraudulent (Patel, above at paras 24-27). (…)

(some references omitted)

Justice Zinn’s decision in Madadi v Canada (Minister of Citizenship and Immigration), 2013 FC 716 at para 6 provides a succinct summary:

The jurisprudence of this Court on procedural fairness in this area is clear: Where an applicant provides evidence sufficient to establish that they meet the requirements of the Act or regulations, as the case may be, and the officer doubts the “credibility, accuracy or genuine nature of the information provided” and wishes to deny the application based on those concerns, the duty of fairness is invoked[.]

(references omitted)