Informing CIC of a Pregnancy

Citizenship and Immigration Canada’s acknowledgements of receipts for permanent residence applications generally contain some variation of the following statement:

Please inform the visa office of any changes in your application (e.g. birth or adoption of a child, marriage or common-law relationship, new occupation or employer, change of address, change of e-mail address, change of immigration representative, etc).  Please include a letter identifying what the changes are and any relevant supporting documents.  If your documents are not in English or French, send a notarized (certified) translation with a copy of the originals.

It is generally clear to most applicants that failure to do the above can result in an application being refused for failure to comply with s. 16(1) of the Immigration and Refugee Protection Act (the “Act”), and s. 51 of the Immigration and Refugee Protection Regulations, which together state:

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

51. A foreign national who holds a permanent resident visa and is seeking to become a permanent resident must, at the time of their examination,

(a) inform the officer if

(i) the foreign national has become a spouse or common-law partner or has ceased to be a spouse, common-law partner or conjugal partner after the visa was issued, or

(ii) material facts relevant to the issuance of the visa have changed since the visa was issued or were not divulged when it was issued; and

(b) establish that they and their family members, whether accompanying or not, meet the requirements of the Act and these Regulations.

It is also generally well-known that the failure to comply with the above may lead to a foreign national or a permanent resident being declared inadmissible to Canada for misrepresentation pursuant to s. 40(1)(a) of the Act, which states:

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

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

Pregnancy

What about informing Citizenship and Immigration Canada about a pregnancy?  Is there an obligation on applicants to inform Citizenship and Immigration Canada about a pregnancy if an applicant is not going to give birth until after becoming a permanent resident?

Regardless of what the legal answer may be (and I would argue that at this point it is unclear), both the Canada Border Services Agency, the Immigration Division, and the Immigration Appeal Division have found a permanent resident inadmissible to Canada for failing to declare her pregnancy at the time that she landed.  Alot of people on online forums are currently emphatically stating that there is no obligation for applicants to declare pregnancy.  Given that there has been at least one reported decision of a person being declared inadmissible to Canada for this, I would be cautious about making statements online.


Bill C-43 Comes into Force

In June 2012 I wrote about how the Conservative government had introduced Bill C-43, the Faster Removal of Foreign Criminals Act (“Bill C-43“).  Amongst other things, Bill C-43 increases the penalties for misrepresentation, removes appeal rights for permanent residents who are sentenced to a length of imprisonment of six months or more, gives the Minister of Citizenship and Immigration Canada the power to let otherwise inadmissible people to Canada into the country based on his discretion, and prohibits visa officers from considering humanitarian & compassionate factors in certain scenarios.

On June 19, 2013, Bill C-43 received Royal Assent.

Citizenship and Immigration Canada (“CIC“) has now begun rolling out Operational Bulletins to instruct visa officers of its implications.

Operational Bulletin 532 – Coming into Force of Bill C-43 – Inadmissibility on Security Grounds (“OB-532”)

Subsection 34(1)(a) of the Immigration and Refugee Protection Act (“IRPA“) previously provided that a permanent resident or a foreign national is inadmissible to Canada on security grounds for:

engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada

IRPA 34(1)(a) has been reworded to provide that a permanent resident or a foreign national is inadmissible to Canada on security grounds for:

engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests

As well, a new IRPA 34(1)(b.1) will make a permanent resident or a foreign national inadmissible to Canada on security grounds for:

engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada

The question that arises from this change is what constitutes espionage that is “contrary to Canada’s interest” that is not espionage against Canada or a democratic institution or process.  Espionage against a Province?  Industrial espionage?

Operational Bulletin 531 – Coming into Force of Bill C-43 – Obligations for Certain Persons Making an Application under IRPA (“OB-531”)

Individuals making visa and permit applications have always had the obligation to answer any questions truthfully.

Bill C-43 now also provides that a person who makes an application must, on the request of an officer, appear for an examination.

It also provides that a foreign national who makes an application must, on request of an officer, appear for an interview for the purpose of an investigation conducted by the Canadian Security Intelligence Service and to answer all questions truthfully.

Operational Bulletin 525 – Coming into Force of Bill C-43 – Changes in Appeal Rights to the Immigration Appeal Division (“IAD”) as a Result of Bill C-43 (“OB-525”)

This is the big one.

Permanent residents and foreign nationals with convictions punished in Canada by a term of imprisonment of six months or longer no longer have a right of appeal to the IAD. Previously, the term of imprisonment was two years or longer.

A new bar has also been introduced where those with a conviction outside of Canada or those who committed an act outside Canada which if committed in Canada would carry a maximum sentence of at least 10 years are also ineligible to submit an appeal to the IAD.

OB-525 elaborates on the transitional provisions.

Operational Bulletin 527 – Coming into Force of Bill C-43 – Changes to Humanitarian & Compassionate Requests (“OB-527”)

Individuals who are inadmissible to Canada pursuant to IRPA ss. 34, 36, or 37 can no longer overcome their inadmissibilities based on humanitarian & compassionate factors.


Court Cases Discuss on Misrepresentation from China [Updated]

We have recently noted an increased trend involving cases of misrepresentation allegations out of mainland China.  The success of litigants appealing these cases is extremely unpredictable.  In this post I have summarized two cases with very similar facts, and opposite results.

He v. Canada (Citizenship and Immigration), 2012 FC 33, provides a good example of how a finding of misrepresentation can occur, as well as how the Anti-Fraud Unit works to verify employment.

The facts of the case were:

  • H was a citizen of China who had been nominated by the province of New Brunswick to immigrate to Canada.
  • On March 8, 2010, H submitted an application to immigrate to Canada as a member of the Provincial Nominee Class.
  • In the application, H stated that she had worked as a sale manager at the Building Company.  The immigration officer assessing her application asked the Anti-Fraud Unit to verify her employment.
  • Officer R of the Anti-Fraud Unit called the Building Company.  He spoke to Huang, an individual at the Building Company responsible for maintaining the company’s list of employees.  Huang stated that he had never heard of H.
  • Officer R then spoke to the president of Building Company, Boss Deng.  Boss Deng stated that he had worked at the company for over 10 years, and had never heard of H.  Officer R thanked Boss Deng.  Officer R then called back two hours later to confirm what Boss Deng had said.  This time, Boss Deng stated that he had in fact heard of H, and could verify his employment with Building Company.
  • Officer R was suspicious, and reported his concerns to the immigration officer.
  • The immigration officer then sent H a letter stating that he was concerned about the authenticity of his employment, and asking H to address these concerns.
  • In response to the immigration officer’s letter, H sent the officer two faxes.  One as from Huang, who stated that he had made a mistake when he said that he had never heard of H.  The other was from Boss Deng, who stated that his first answer to Officer R was wrong, and that the second answer was right.  Both suggested that they answered the way that they did because they did not remember H, and that they did not believe that Officer R was really an officer with the Canadian embassy.
  • The immigration officer found that H had committed misrepresentation, and denied the application.  In the officer’s reasons, the officer stated that he found the original answers to Officer R’s questions to be more credible than the later answers.  He also wrote that Huang and Boss Deng may have been co-opted into changing their answers.
The Federal Court upheld the misrepresentation finding, and found that the immigration officer was entitled to give very little weight to the material which was submitted after the interview.The Court also found that it was reasonable for the Officer to find that the explanations contained in the faxes were unreasonable.

 

The He decision can be contrasted with the recent decision of Rong v. Canada, Citizenship and Immigration, 2013 FC 364. There, the Federal Court found an officer’s almost identical refusal to be completely unreasonable.  The Officer’s reasons, and the Court’s responses, were:
Officer’s Statement Court’s Answer
I gave more weight to the telephone verification report than to the information provided subsequent to the receipt of our procedural fairness letter, as this appeared to have been prepared for presentation purposes only. The officer failed to adequately explain why she preferred a telephone conversation with the employer’s receptionist over the information provided by the applicant and her employer in response to the fairness letter. By relying on the information Mr. Han provided over the telephone, the officer essentially found that the company’s December 2011 to March 2012 payroll records were falsified and that the company representatives were either not telling the truth in their letters or that the letters themselves were falsified. The officer did not explain why these documents were rejected. 

The officer’s focus on the information provided by Mr. Han to the exclusion of the documentary evidence suggests a closed mind with disregard for the documentary evidence and an absence of any true weighing of the positive and negative evidence (Paulino v Canada (Citizenship and Immigration), 2010 FC 542 at paras 59-62).

 

 

This reason does not make sense to me, given that the goal of the fairness letter was to allow the applicant an opportunity to address certain concerns and documentation issued by the applicant’s stated employer was the strongest and perhaps only way to address those concerns.

“under these circumstances verifying authorities may have been co-opted to provide false verifications” There was no evidence before the officer that the applicant may have co-opted the authorities who verified her work experience and the accuracy of the information she gave RHO over the telephone on March 26, 2012.
The payroll records she submitted indicated her time wage as RMB 3200 per month and did not list a real wage, while the applicant’s employment letter on file stated that she earned RMB 4000 per month. The officer’s CAIPS notes focus on minor inconsistencies between the information the applicant and Mr. Han gave over the phone, even though these inconsistencies were reasonably and consistently explained in the documents provided by the applicant and her employer. Moreover, many of the inconsistencies which concerned the officer were only peripheral to the core issue of whether the applicant had misrepresented her employment.
(Department of Justice) The officer was simply providing reasons as to why the applicant was not being afforded a procedural step to which she was not otherwise entitled. The excerpt above demonstrates that the officer’s decision was founded in part on the possibility that the applicant had co-opted the verifying authorities.
What this shows is that it is possible to challenge the misrepresentation findings out of visa posts.  I personally think that it is completely unreasonable for visa officers to write a fairness letter and then say afterwards that documents submitted in response to the fairness letter will be given little weight because they were in response to the fairness letter.  It completes defeats the point of a fairness letter, and I am glad that people are challenging it.

Spousal Sponsor is Pregnant with Someone Else’s Child

On May 27th the Federal Court (the “Court“) released its decision in Chen v. Canada (Public Safety and Emergency Preparedness), (2010 FC 584) (“Chen“)The decision involves a unique situation of someone who was sponsored by a wife who was pregnant with her lover’s baby.

Mr. C, a Chinese citizen, married Ms. Z, a Canadian Resident. She then sponsored him for permanent residence.  While Mr. C was awaiting his papers, a friend told him that his wife had been seen “in the company” of another man in Toronto.

When Mr. C arrived in Canada, he found his wife pregnant with another man’s child.  According to Justice Harrington,

He was willing to forgive, 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. She taunted his lack of manhood. (Paragraph 5)

As one would expect, the marriage shortly dissolved thereafter.

After the divorce, Mr. C married an old flame in China. He then attempted to sponsor her.  Unfortunately for him, Canadian immigration authorities not only disallowed this second application, but also declared him inadmissible to Canada for misrepresentation in the first application. Essentially, the Canada Border Services Agency (“CBSA“) alleged that Mr. C’s first marriage to Ms. Z was not genuine, that Mr. C lied to enter Canada, and that his permanent residency should be revoked.  Specifically, the CBSA was suspicious because Mr. C 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. Z dissolved.

The Court, however, noted 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. C’s failure to disclose to the interviewing officer the possibility of Ms. Z having an affair, the Court noted that at the time of the interview Ms. Z having an affair was only a rumor, and that the duty of candour did not oblige Mr. C to share mere worries.

Regarding Mr. C’s failure to go back to China after the dissolution of his marriage, Justice Harrington noted that:

As to not immediately returning to China when the marriage broke down, he said that as a cuckold he would be the laughing stock of his village. There was no evidence to contradict that statement.

Chen might not set any broad new legal precedents.  However, it is a good illustration of the parameters of the duty of candour that all applicants face in their applications to enter and/or immigrate to Canada.