Secret Evidence Used Against Me? (On Extrinsic Evidence) [Updated]

Where immigration officers have extrinsic evidence particular to an applicant, and that applicant is unaware that the immigration officer has that evidence, then procedural fairness requires that immigration officers disclose this evidence to the applicant.
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Responding to Procedural Fairness Letters

Where an applicant submits a complete application, but an immigration officer nonetheless has concerns regarding the application, the immigration officer will often provide a fairness letter to the applicant.

We often review applicants’ responses to fairness letters.  It is often apparent that this is either because the applicant did not understand the fairness letter, or because they simply did not know how to respond appropriately.

In this post, which will be updated frequently, I will be providing a series of tips for applicants on how to respond to fairness letters.

1) Address the issues that are raised in the fairness letter.  If the Fairness Letter asks you to provide detailed information as to what you were doing from 1996-1997, then provide detailed information. You can generally assume that you only need to respond to the concerns raised in the Fairness Letter, as the Federal Court has recently determined that it is a breach of procedural fairness for officers to engage in a “bait-and-switch.” (Jin v. Canada, 2014 FC 612)

2) If you are unable to include all the information that you require in a response to a fairness letter, but you would like to submit missing information a short period later, then make sure that your first response indicates that there is more information coming.  (Reznitski)

 


Presenting The Customs Enforcement Manual

The Canada Border Services Agency is responsible for the detection and prevention of border-related offences such as smuggling, fraud, and wilful non-compliance with immigration, trade, and tax law.  The CBSA Enforcement Manual, also known as the Customs Enforcement Manual, serves as the guide for CBSA officers in the execution of their enforcement related responsibilities.  It has been relied upon in several court challenges.

To the best of my knowledge, the CBSA Enforcement Manual is not publicly available.  However, we have obtained a copy of it through an Access to Information and Privacy Act request and have made it available for purchase on this blog.   The price for this document, which is a massive 1,274 pages, is $4.95.  Our goal in providing the CBSA Enforcement Manual is to help you save valuable research time, and to provide you with a comprehensive understanding of how the CBSA operates.

We have provided as a free preview the first page of the CBSA Enforcement Manual.  We have also provided an outline of all of the information, policies, and guides which are found in it.

The Customs Enforcement Manual is divided into parts as outlined below.

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Understanding the Three Levels of Customs Infractions

When a person has goods (as distinguished from monetary instruments and conveyances  seized at customs, the Canada Border Services Agency (“CBSA“) has established three “levels” or “degrees” of breach for the purpose of determining the penalty.  These levels are described in Part 5 Chapter 2 of the Customs Enforcement Manual.

Level 1

Level 1 applies to violations of lesser culpability.  It will be applied where a person’s efforts to hide something from CBSA were initial and effectual.  It is generally applied to offences of omission rather than commission.

In the context of Non-Report and Inaccurate Information, Level 1 will be applied when:

  • goods are not reported to CBSA or goods are reported to CBSA but inaccurate information is given concerning acquisition, entitlements, or description;
  • the goods are not concealed; and
  • a full disclosure of the true facts concerning the goods is made at the time of discovery.

In the context of Undervaluation, Level 1 is applied when:

  • goods are reported for a value less than their actual transaction value but no falsified documents were presented; and
  • full disclosure is made prior to the discovery of documentary evidence.

Level 2

Level 2 applies to violations where the circumstances demonstrate that the individual actively attempted to breach Canadian customs law.  It is also applicable to people who repeatedly omit information.

In the context of Non-Report and Inaccurate Information, it will be applied when the circumstances are the same as for level 1, but in addition:

  • the goods are concealed or disguised; 
  • inaccurate information is given concerning the goods following their discovery; or
  • the person has been the subject of a previous seizure action.

In the context of Undervaluation, Level 2 is applied when:

  • no falsified documents were presented however documentary evidence is found, revealing the actual value of the goods is more than reported before full disclosure is made; or
  • the person has been the subject of a previous enforcement action.

Level 3

Level 3 applies to circumstances where the evidence exists of a more sophisticated scheme involving devices to facilitate the violation or where the individual has been the subject of a previous seizure.

In the context of Non-Report and Inaccurate Information, it will be applied when the circumstances are the same as for level 2, but in addition:

  • false documents or receipts are presented for the goods; 
  • the goods are concealed within false compartments; or
  • the person has been subject to previous seizure action.

In the context of Undervaluation, Level 3 is applied when:

  • falsified documents were presented in an attempt to support the undervaluation; or
  • the person has been the subject of a previous enforcement action.

Penalties

The following two tables show the penalty amounts for each level.

Non-Report and Inaccurate Information

Good

Level 1

Level 2

Level 3

Clothing, footwear, textiles, towels, bedding, curtains, carpets, jewelry, and watches

30% of value

50% of value

70% of value

All other goods, except alcohol and tobacco

25% of value

40% of value

55% of value

 

Undervaluation

Good

Level 1

Level 2

Level 3

Clothing, footwear, textiles, towels, bedding, curtains, carpets, jewelry, and watches

30% of undervalued amount

50% of undervalued amount

70% of undervalued amount

All other goods, except alcohol and tobacco

25% of undervalued amount

40% of undervalued amount

55% of undervalued amount

The Customs Enforcement Manual contains several useful examples of undervaluation.

Example A

A traveller declares at primary that he bought a car for $1,000 and does not present a receipt.  At the secondary examination, the officer questions the traveller on the purchase.  The traveller admits that the car is undervalued, and voluntarily discloses that the actual value is $4,000.  This would be a Level 1 violation, and the amount of duty owing (assuming the correct duty had been paid on the $1,000) would be 25% of 3,000.

Example B

A traveller does not declare at secondary that be bought a boat even though it is on the back of his car.  The officer finds a receipt in the car’s dashboard for $418,000.  This would be a Level 2 violation, and the amount of duty owing would be 40% of $418,000.

To the best of my knowledge, the CBSA Enforcement Manual is not publicly available.  However, we have obtained a copy of it through an Access to Information and Privacy Act request and have made it available for purchase on this blog.   The price for this document, which is a massive 1,274 pages, is $32.95.  Our goal in providing the CBSA Enforcement Manual is to help you save valuable research time, and to provide you with a comprehensive understanding of how the CBSA operates.  Please note, however, that this document is current only as of 2012.

© All rights reserved. Canada Border Services Agency. Reproduced with the permission of the Minister of Public Works and Government Services Canada, 2013.


Important Tip for Immigrating to Canada

One of the most complicated topics in immigration law is determining when procedural fairness will require an immigration officer who is assessing an application to seek clarification in the form of a fairness letter or interview.

The breadth of procedural fairness must be adapted to the context in which it arises (Baker, SCC, 1999). When no extrinsic evidence is relied on, it is unclear when exact;y it is necessary to afford an Applicant an interview or a right to respond.  However, there will be a right  to respond under certain circumstances. (Li, 2008 FC 1284).

In Kaur v. Canada (Citizenship and Immigration), 2010 FC 758, the Federal Court dismissed a judicial review application of a visa officer’s refusal of an applicant under the Federal Skilled Worker Program. The application was deficient as it failed to include required information regarding the applicant’s salary and benefits. The applicant argued that she should have been told that this information was missing, and been given a chance to provide what was missing. However, the Court noted that there is no duty to advise an applicant of a deficient application. As the judge noted, the process is clear. An applicant must provide a complete application.

Contrast this with what happened in Sandhu v. Canada (Citizenship and Immigration), 2010 FC 759. There, the application was complete and sufficient. However, the visa officer rejected the application because he did not believe the genuineness of one of the applicant’s answers on the application. The Court noted that the duty of procedural fairness in the decisions of visa officers [is] at the low end of the spectrum. However, the judge also noted that where the application is adequate, but the officer nevertheless entertains a doubt on the evidence, there remains a duty to clarify the information. The judge thus allowed the judicial review.

This approach is similar to that recently taken in Grewal v. Canada (Citizenship and Immigration), 2011 FC 167.  There, an application was rejected because of a poor IELTs score.  The Court noted numerous factors that resulted in a duty to seek additional information including, 1) that the Manual specified that additional information would be required for doubts over AEOs, 2) that the language proficiency derailed the whole claim for permanent residence, and 3) that the consultant had thoroughly explained the reason for the poor test and had stated that another would be forthcoming.  Accordingly, procedural fairness dictated that a fairness letter or interview be provided.

In  Singh v. Canada, 2010 FC 1306, meanwhile,  an officer rejected a work permit application because the only documents which were submitted to support the applicant’s employment experience as a Ragi were letters.  The officer stated that she saw “many such letters which turn out to be fictitious”, and that she required “more than letters, for instance, newspaper cut outs, photos of them practicing or letters of reference, to properly corroborate claims of training, knowledge, and experience.”  The Federal Court, however, overturned this decision, noting that the applicant was not put on notice that the officer was considered with the veracity of letters, and did not request further documentation.

Conclusions

In 2011, the Federal Court released its decision in Kaur v. Canada, 2011 FC 219.  In three paragraphs, the Court provided what I think is an excellent articulation of the current jurisprudence, and what should be the starting basis for any analysis of whether procedural fairness required the providing of the applicant with an opportunity to respond to a given concern.  The Court stated that:

[24]           An officer is not under a duty to inform the applicant about any concerns regarding the application which arise directly from the requirements of the legislation or regulations (see Hassani v. Canada (Minister of Citizenship and Immigration), 2006 FC 1283, [2007] 3 F.C.R. 501 at paragraphs 23 and 24).

[25]           The onus was on the applicant to satisfy the officer of all parts of her application and the officer was under no obligation to ask for additional information where the applicant’s material was insufficient (see Madan v. Canada (Minister of Citizenship and Immigration) (1999), 172 F.T.R. 262 (F.C.T.D.), [1999] F.C.J. No. 1198 (QL) at paragraph 6).

[26]           However, the officer was obligated to inform the applicant of any concerns related to the veracity of documents that formed part of the application and the officer was required to make further inquires in such a situation (see Hassani above, at paragraph 24).

The message from the courts seems clear: visa applicants have one shot, and they should ensure that the effort that they put forward is their best, because if they do, procedural fairness will require that immigration officers provide them with the opportunity to address concerns.

If they don’t put their best foot forward, however, then their applications will be rejected outright.


When The Same Immigration Officer Keeps Rejecting Your Case

On June 7, the Federal Court released its decision in Delos Santos v. Canada (Citizenship and Immigration), 2010 FC 614. The applicant argued that it was a breach of procedural fairness that the same officer heard determined both the applicant’s humanitarian & compassionate (“H&C“) application as well as  applicant’s Pre-Removal Risk Assessment (“PRRA“).

The Federal Court found that there was no inherent bias arising from the fact that the same officer dealt with both a H&C application and a PRRA application for the same individual.

This decision was based on the Federal Court of Appeal’s (the “FCA“) decision in Oshurova v. Canada (Minister of Citizenship and Immigration), 2006 FCA 301, where the FCA answered the following certified question in the negative:

Is there an appearance of bias, in this case, because the same officer decided the application for a visa exemption on humanitarian and compassionate grounds as well as the Pre-Removal Risk Assessment?

Continue reading “When The Same Immigration Officer Keeps Rejecting Your Case”