Borderlines #15 – Gordon Maynard on New Can Consulting and the Biggest Immigration Fraud in Vancouver History

Gordon Maynard is a Vancouver based lawyer who practices exclusively in Canadian immigration law.  He is a past Chair of the Canadian Bar Association’s Immigration Section.

In this episode we discuss the biggest immigration scam in Vancouver’s history, which is still unfolding. Xun (Sunny) Wang was a ghost consultant who is estimated to have made $10 million by filing fraudulent immigration applications for clients of his two firms, New Can Consulting and Well Long Enterprises.  Mr. Wang, who is currently serving an eight year jail sentence, and his staff, apparently put fake passport stamps in peoples’ passports in order to lie about having spent sufficient time in Canada to qualify for various immigration programs.  The Canada Border Services Agency is now endeavouring through what the Department is calling Project New Can to remove over 1,500 former clients of his for having committed misrepresentation to obtain Canadian permanent residency and/or maintain it.  All of the lawyers involved in this podcast have and are representing some of his clients in these removal proceedings.

Topics

1:39 – Gordon provides an overview of the timeline involved in Sunny Wang’s alleged fraud.

7:50 – What constitutes misrepresentation in Canadian immigration applications?

10:30 – We discuss some of the mechanics of what Sunny Wang is alleged to have done.

12:00 – Many New Can clients are saying that they signed blank forms and did not know that the applications were fake. Is this a defence to misrepresentation in Canadian immigration law?  Plus Steven reads a summary of what a typical Project New Can procedural fairness letter or allegation looks like.

19:30 – What is the process for having a permanent resident or a foreign national removed from Canada for misrepresentation?

23:00 – What sorts of misrepresentations can actually lead to removal from Canada?

28:30 – What sort of flexibility is there amongst enforcement officers once they have found a misrepresentation to still not have someone removed?

34:45 – As a lawyer, if a client comes to you and says “I submitted an immigration application with fake stamps in my passport and I knew they were fake,” what would you recommend? Do they have a chance of staying in Canada?  And other issues representatives need to be aware of.

 


Borderlines Episode #14 – How to overcome systemic barriers in LGBTQ asylum claims, with Sharalyn Jordan

Sharalyn Jordan is an Assistant Professor in the Faculty of Education at Simon Fraser University.  She works with with community agencies that support LGBTQ and refugee mental health as they develop and assess their counselling practices and programs.

In this episode we discuss how to overcome systemic barriers in LGBTQ asylum claims.  Much of this episode is dedicated to establishing how LGBTQ asylum claimants must prove their sexual identity during their refugee claim.  How does someone from a country where being gay is illegal and who has been a closeted homosexual for their entire life prove that they are gay? What do Immigration and Refugee Board members expect?  How can counsel assist? Finally, we discuss whether LGBTQ asylum claimants should even be required to prove their sexual orientation as part of their asylum claim.

Topics

1:13 – Sharalyn provides an overview of the history of how Canada’s immigration and refugee system has restricted the ability of LGBT people to relocate to Canada.

5:12 – Canada’s immigration and refugee system often requires that people prove their sexual orientation. How can LGBT people prove their orientation?

20:00 – Are there circumstances in which an Immigration and Refugee Board member can reject a person’s claimed identity?

34:30 – What degree of membership in a LGBT community is required or the norm for an LGBT refugee claimant?

36:40 – What is the standard of persecution in the LGBT context?

44:10 – What changes does Sharalyn think need to be made to Canada’s refugee system?

53:30 – Steven expresses concerns with the idea of not questioning one’s identity, and has his concerns answered.

Post Show Notes

After listening to this episode one might want to see examples of decisions where the Refugee Protection Division engaged in reasoning that was not sensitive to LGBT issues. Isesele v. Canada (Immigration, Refugees, and Citizenship) is a good example. There, the Federal Court set aside a decision in which the RPD determined that a bisexual woman could avoid persecution if she simply kept a “low profile.”


Establishing that Someone is a Refugee

Section 96 of Canada’s Immigration and Refugee Protection Act (the “IRPA) defines a refugee as being a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries.  A refugee also includes though who do not have a country of nationality, but who are outside of their country of former habitual residence, and, because of the same fear, are unwilling to return to that country.

Refugee law is very complicated, and components of it are the subject of numerous blog posts on this website.

In this post, I hope to cover some of the major jurisprudence involving the interpretation of IRPA s. 96.

Past Persecution vs. A Future Fear

It is important to understand that refugees need to have a forward looking fear of returning to their country of origin.  The existence of past persecution will not create a rebuttal presumption that someone have a reasonable objective or subjective fear of persecution.

In Fernandopulle v. Canada (Minister of Citizenship and Immigration), 2005 FCA 91, the Federal Court of Appeal explicitly held that a person establishes a refugee claim by proving the existence of a well-founded fear of persecution for one of the reasons listed in section 96 of the IRPA and that proof of past persecution for one of the listed reasons may support a finding of fact that the claimant has a well-founded fear of persecution in the future, but it will not necessarily do so. If, for example, there is evidence that country conditions have changed since the persecution occurred, that evidence must be evaluated to determine whether the fear remains well founded.


Work Experience Under the FSWP and the CEC

Subsections 87.1(2)(b) and (c) of the Immigration and Refugee Protection Regulations set out the job duties that applicants must perform in order to meet the requirements of having experience in an eligible NOC.

Subsection 87.1(2)(b) provides that an applicant must have performed the “actions described in the lead statement for the occupation as set out [in the NOC]”, while subsection 87.1(2)(c) provides that an applicant also must have performed a “substantial number of the main duties of the occupation as set out in the NOC, including all of the essential duties.”

In Benoit v. Canada (Citizenship and Immigration), 2013 FC 185, the Court allowed the appeal where an officer rejected an application because the applicant did not perform two of the eight main duties for NOC 6211.  The Court stated:

The officer was therefore required to determine if Ms. Benoit “performed a substantial number of the main duties.”  However, the officer’s decision as disclosed by the CAIPS notes is merely the following:  “Duties listed in job letter do not match duties in NOC description; ordering and scheduling is done by manager with PA’s assistance.”  “Ordering” and “scheduling” are no more than mere components of the main duties listed in NOC 6211.  Thus, it is not clear if the officer at any point turned his or her mind to the real question, which was whether – on the whole – the duties were a substantial match.[1]

Another case worth noting is Ye v. Canada (Citizenship and Immigration Canada), 2012 FC 652.  There, an officer refused an application under NOC 6221 because the officer felt that NOC 6421 was more appropriate. The officer did this not withstanding that NOC 6221 contained the following example titles “technical support specialist”, “telecommunications sales representative”, and “telecommunications salesperson.”  Accordingly, the court noted that the Officer erred by failing to address the evidence before her that the Applicant’s responsibilities and work experience were described in terms of one of the example titles in the NOC 6221 category.


A44 Reports

Section 44 of the Immigration and Refugee Protection Act states:

Preparation of report

44 (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.

Referral or removal order

(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order.

Conditions

(3) An officer or the Immigration Division may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer or the Division considers necessary on a permanent resident or a foreign national who is the subject of a report, an admissibility hearing or, being in Canada, a removal order.

 


Service Canada Officers Fettering Discretion

As I have previously written in this blog, there is an increasing number of judicial review applications being filed against Labour Market Impact Assessment (“LMIA”) refusals.  There is also accordingly a growing jurisprudence on what constitutes the “fettering of discretion” in a LMIA assessment.  Those who have experience submitting LMIA applications will know that this is not surprising.

Paturel International Company v. Canada (Employment and Social Development), 2016 FC 541 (“Paturel“)

In Paturel, an officer with the Department of Employment and Social Development (“ESDC“) refused an LMIA application simply because the employer’s job offer did not have a wage that met or exceeded the median wage on ESDC’s Working in Canada website.  The Federal Court stated that:

While the officer has broad discretion to rely on the data that he considered to be most representative of the prevailing wage in the region, I find that the officer’s sole reliance on EI data amounted to a fettering of his discretion.

Justice O’Reilly went on to note that:

  • Canadian immigration legislation does not stipulate that a failure to meet the prevailing wage, alone, would be sufficient to defeat an employer’s application; and
  • Because the employer had provided evidence that the Working in Canada website was inaccurate, it was unreasonable for the officer to nonetheless rely on it and to ignore the additional information.

Seven Valleys Transportation Inc. v. Canada (Employment and Social Development), 2017 FC 195 (“Seven Valleys“)

In Seven Valleysan ESDC officer refused an LMIA application solely because the employer advertised with a job requirement that an internal ESDC Wiki deemed excessive, and the officer chose to ignore the employer’s reasons as to why the requirement was not in fact excessive.

While the Federal Court accepted that ESDC can have internal policies, it determined that the officer ignoring the rationale provided regarding challenging routes, public safety, and the high value of the trucks, and instead relying solely on the internal Wiki as being binding, constituted a fettering of discretion.


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 under no 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.

In Farooq v. Canada, 2013 FC 164 (“Farooq“), for example, 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 provide a comprehensive summary of the law on this issue, and I have reproduced them in full:

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 accordingly important to examine whether credibility may have been an issue leading to refusal.   In doing so, it is important to note that credibility assessments are often implicit, 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 they 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)