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.


Buddhist Priest Inadmissible For Misrepresentation

The Federal Court has affirmed the reasonableness of Citizenship and Immigration Canada’s (“CIC“) decision to declare a Buddhist priest inadmissible to Canada for misrepresentation.  The consequence of being declared inadmissible to Canada is a two-year ban on entering Canada.

The priest, who at the time of the decision lived in Toronto, filed an application for permanent residency with CIC in 2009.  On his Schedule 1 Background Declaration form, the priest answered as follows:

The priest ticked NO to bullet points 2 and 3 despite having applied for numerous temporary resident visas in the past.  While most of these were approved, one of them was rejected.

CIC determined that the priest’s misstatement was material enough to result in the priest being inadmissible to Canada for misrepresentation.

The decision did not address whether a misrepresentation finding would have been reasonable if the priest had never been refused a visa.  In other words, if the priest had merely not disclosed that he had previously applied for temporary resident visas which were all approved, would a misrepresentation finding still be reasonable?

It may be that we never learn the answer.

To anyone who recently applied for permanent residency and is thinking “I don’t remember being asked this question and I checked NO to all the boxes in the Schedule 1..” don’t worry…  CIC recently changed the Schedule 1 Background Declaration form.

It now only asks if applicants have previously been refused a visa.


A Caution on Switiching from $400,000 to $800,000

The Canadian Immigrant Investor Program re-opened on December 1, 2010. The requirements for the program have increased. Applicants will now have to prove a personal net worth of CAD 1.6-million (an increase from the previous $800,000) and make a passive $800,000 (an increase from the previous $400,000) investment with the Government of Canada.
Continue reading →


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.


The “Innocent Mistake” Defence to Misrepresentation

On October 12, 2011, I wrote about how the Federal Court in Osisanwo had certified the following question:

Is a foreign national inadmissible for misrepresenting a material fact if at the time of filing his/her application for permanent residence or at the time of granting permanent residence he/she had no knowledge of the material fact that constituted such misrepresentation?

 

Ultimately, the Respondent in Osisanwo did not litigate to the Federal Court of Appeal.  However, on April 13, 2012,  the Federal Court issued several judgements in misrepresentation cases that establish a clear rule regarding whether innocent mistake is a defence to s. 40 misrepresentation allegations.  In essence, without explicitly stating so, the Court described misrepresentation as a strict liability offence, in which there is a “reasonableness” (or “due diligence”) defence.

An Overview of the Rule

Madam Justice Tremblay-Lamer, the author of the aforementioned string of decisions,  found that misrepresentation does not always require subjective knowledge.  In clarifying this, she first cited the following passage from Jiang v Canada(Minister of Citizenship and Immigration):

With respect to inadmissibility based on misrepresentation, this Court has already given section 40 a broad and robust interpretation. In Khan, above, Justice O’Keefe held that the wording of the Act must be respected and section 40 should be given the broad interpretation that its wording demands. He went on to hold that section 40 applies where an applicant adopts a misrepresentation but then clarifies it prior to a decision. In Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 1059, this Court held that section 40 applies to an applicant where the misrepresentation was made by another party to the application and the applicant had no knowledge of it. The Court stated that an initial reading of section 40 would not support this interpretation but that the section should be interpreted in this manner to prevent an absurd result.

She then further cited Baro v Canada (Minister of Citizenship and Immigration), where the Court held that:

Even an innocent failure to provide material information can result in a finding of inadmissibility; for example, an applicant who fails to include all of her children in her application may be inadmissible: Bickin v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No.1495 (F.C.T.D.) (QL). An exception arises where applicants can show that they honestly and reasonably believed that they were not withholding material information.

Accordingly, Madam Justice Tremblay-Lamer held that it is only in exceptional cases where an applicant can demonstrate (1) that he honestly and reasonably believed that he was not withholding material information, and (2) where “the knowledge of which was beyond his control”, that the applicant may be able to take advantage of a “reasonably innocent mistake” defence to misrepresentation.

And of course, simply trusting a representative is not due diligence.