Sham Marriages – Removal from Canada

In a story that, as of writing, has a whopping 393 comments, Kathy Tomlinson of the CBC on June 14 reported about a Victoria woman who claims she was misled by a man from India who allegedly married her to get into Canada, and then did not contact her, let alone move in with her, after he obtained his visa.

The man apparently lives in the Vancouver area now.  Alone.  Because of this, his wife and her mother want him deported.

The story contains numerous allegations, including that the husband’s family is both threatening her and bribing her in an effort to keep her silent.  Somewhat interestingly and counter-productively, they also demanded that she sign a letter confirming that the marriage wasn’t real.  According to the story, police have even arrested one person for uttering threats.

An interesting part of the story, and the part that I want to focus on, are alleged comments that the man made on a website in India.  He allegedly wrote:

Her daughter said she later discovered several postings on an Indian social networking site that appear to be written by her husband, boasting the marriage was all a sham.

I don’t care. Immigration and police can’t do anything. My uncle is getting a lawyer ? if I lied to get in to Canada, once I get the visa no one can take it again,” says one posting next to a picture of Kanda.

My dad and my uncle tell me not to worry, lots of people lie and fraud with Canada.? If she put a case, then we will get a lawyer and try and make it her fault ? I don’t care, I like Canada. India is too hot.

India is too hot. If it came to it, I’d love to see a H&C application based on temperature.

But is the content of this internet posting accurate? Is it correct that once someone gets a permanent resident visa there is no way to revoke it?

Of course not.

Section 46 of the Immigration and Refugee Protection Act sets out the scenarios in which a permanent resident can lose his/her status. The section states that:

Permanent resident

46. (1) A person loses permanent resident status

(a) when they become a Canadian citizen;

(b) on a final determination of a decision made outside of Canada that they have failed to comply with the residency obligation under section 28;

(c) when a removal order made against them comes into force; or

(d) on a final determination under section 109 to vacate a decision to allow their claim for refugee protection or a final determination under subsection 114(3) to vacate a decision to allow their application for protection.

Division 4 of the Act contains 10 sections (and a whole lot more subsections) detailing the different ways that a foreign national and/or permanent resident can be found to be inadmissible.

The relevant section for the person who lies about a marriage being genuine is s. 40 of the Act, which states that:

Misrepresentation

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;

(b) for being or having been sponsored by a person who is determined to be inadmissible for misrepresentation;

(c) on a final determination to vacate a decision to allow the claim for refugee protection by the permanent resident or the foreign national; or

(d) on ceasing to be a citizen under paragraph 10(1)(a) of the Citizenship Act, in the circumstances set out in subsection 10(2) of that Act.

Here, if the allegations are true, then the material fact would have been that the individual entered into the marriage for the purpose of immigrating to Canada, which contradicts IRPA.  Another possible section would be the catch all “failure to comply with the Act” provision.

So it’s simply not true that “once the visa is issued the person is safe to stay”.  However, absent an individual confessing to, or making public, a sham marriage, it is difficult for immigration authorities to become aware of sham marriages. Yesterday I was at a hearing where an Immigration Officer noted that it is almost impossible to catch people who have engaged in fraudulent marriages. There simply aren’t enough resources to monitor and determine whether every spousal class applicant stays married to his/her sponsor.  Immigration authorities will thus be unaware that a marriage has failed until either the applicant or the sponsor tries to sponsor someone else. By that point, the applicant might already be a citizen.

Given this, some are suggesting reforms to the spousal sponsorship program.  Apparently, Minister Kenney, who as we have seen moves astonishingly quickly, is open to such matters. From the CBC report,

The minister said he’s considering suggestions from victims’ advocates who want Canada to adopt a probation period for arriving spouses, as in the U.S. and Australia. Under those systems, sponsored spouses don’t get legal status in their new country until they have lived with their spouses for a significant period.

I agree … that something has to be done to prevent this exploitation. Not only of individuals like her [Dhaliwall], but of our broader immigration system.

I’m open to ideas.

In the United States, permanent residence that is based on marriage is conditional if the marriage was less than 2 years old on the day that permanent resident status was granted. To remove the condition, an individual must file a Form I-751, Petition to Remove Conditions on Residence.  This condition may be removed if the immigrant is married to the same U.S. citizen or permanent resident after 2 years. There are some exceptions, including, but not limited to, if an immigrant can show that he/she entered into a marriage in good faith, but that the marriage was ended in divorce, or that the immigrant was either battered or subjected to extreme hardship.  If the condition is not removed in time, that being 2 years after obtaining conditional resident status, then the immigrant may lose conditional resident status, and may be removed from the country. For more information on these US regulations, visit the US Citizenship and Immigration Services website.

In Australia, the situation is even stricter.  An immigrant who is married to an Australian citizen, and is immigrating under that class,  will be issued a Temporary Partner Visa. This includes travel rights, access to Medicare, and an open work permit. After the two year period, the Department of Immigration will grant a permanent partner visa if the immigrant can produce evidence that the relationship is still active. A waiver for the two-year test period may be given if the couple were married for three years or more at the time of application, if the couple had been married for two years or more and had children, and other limited scenarios.  If a temporary visa has been issued, and, before the conclusion of the two years, the Australian partner dies, a child is born, or there is spousal abuse, then a permanent resident visa may be issued even if the relationship is terminated. For more information on the Australian system, please see the Australian Department of Immigration and Citizenship.

So what do you think? Is Canada’s current approach sufficient? Or should we move in the direction of the United States and Australia?


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