Spousal Sponsor is Pregnant with Someone Else’s Child

When someone sponsors their spouse or common-law partner to immigrate to Canada, it can often be difficult to determine how detailed one’s application should be.  Should one include every aspect of their relationship history, including marital difficulties?  What about instances of fidelity?

Several Federal Court of Canada decisions involving cases of alleged misrepresentation against applicants offer guidance on this topic.

In Chen v. Canada (Public Safety and Emergency Preparedness),(“Chen“), Mr. Chen, a Chinese citizen, married Ms. Zou, a Canadian permanent resident. Ms. Zou then sponsored Mr. Chen for permanent residence.  While Mr. Chen’s application was in processing, a friend told him that his wife had been seen “in the company” of another man in Toronto.

When Mr. Chen arrived in Canada, he discovered that his wife pregnant with another man’s child.  According to Justice Harrington, Mr. Chen was willing to forgive his wife, 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. Ms. Chen “taunted Ms. Zou’s lack of manhood.”

As one would expect, the marriage shortly dissolved thereafter.

After the divorce, Mr. Chen married an old flame in China.  He then attempted to sponsor her for Canadian permanent residency.

Unfortunately for Mr. Chen, Canadian immigration authorities not only disallowed his new wife’s application, but also declared Mr. Chen to be inadmissible to Canada for misrepresentation in his own immigration application.

Essentially, the Canada Border Services Agency (“CBSA“) alleged that Mr. Chen’s first marriage to Ms. Zou was not genuine, that Mr. Chen lied to enter Canada, and that his permanent residency should accordingly be revoked.  Specifically, the CBSA was suspicious because Mr. Chen 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. Zou dissolved.

Justice Harrington, however, held 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. Chen’s failure to disclose to immigration officials the possibility of Ms. Zou having an affair, Justice Harrington noted that at the time of the interview Ms. Zou having an affair was only a rumor, and that the duty of candour did not oblige Mr. Chen to share mere worries.  As Justice Harrington wrote,

As to not sharing the rumours with the officer at the time of his interview, what material fact did he withhold? The only fact was that he had heard rumours. Even if they were true, it did not mean that the marriage was necessarily at an end. The Divorce Act specifically contemplates the possibility of reconciliation and the divorce papers jointly signed by the parties, which are to be found in the tribunal record, contain their joint statement that reconciliation was not possible.

In Osisanwo v. Canada (Citizenship and Immigration), a similar issue arose. There, a Canadian citizen filed an application to sponsor his parents to immigrate to Canada.  He included his birth certificate in the application to show that the people that he was applying to sponsor were his parents.  Ultimately, immigration officials required DNA testing, which showed that while his mother was indeed his mother, he was not his “father’s” son. Immigration officials determined that this constituted misrepresentation.

Justice Hughes, disagreed.  He noted that DNA testing proved that the mother was really the Canadian child’s mother, that the “father” had raised the child, and that the “father” had no reason to suspect that he was not the person’s biological father. As Justice Hughes noted:

History is replete with children born to and raised by a married couple, believing it to be their own. Must an applicant seeking entry into Canada disclose every extra-marital relationship conducted at a time where there is any possibility that a child might have been fathered by someone other than the husband? Surely our society has not found itself at that point.

The above two cases should not be taken to mean that applicants can never disclose extra-marital affairs when they apply to immigrate to Canada.  In Kawech v. Canada (Citizenship and Immigration)the Federal Court of Canada had to address a situation where someone failed to disclose the existence of a long-standing mistress.

Mr. Kawech, a Tunisian, married Ms. Charlotte, a much older woman who could not have any children.  Mr. Kawech also had a long-standing mistress with whom he had children.  Mr. Kawech did not mention the existence of this affair during the processing of his spousal sponsorship application.  When immigration officials eventually discovered it, they determined that his marriage to Ms. Charlotte was not genuine.

Madam Justice Gleason agreed, and determined that while applicants did not need to disclose every extra-marital incident, that a long-standing affair could reasonably cast doubt onto the genuineness of a marriage.

These three cases, and a string of similar cases at the Immigration Appeal Division, show that when completing their immigration paperworks applicants should keep in mind that in assessing the genuineness of a marriage there may be a difference between those who have one-night stands or flings, and those who are in extra-marital relationships that last close to one year.

As also shown above, the issue of extra-marital affairs in spousal sponsorship applications also goes beyond simply impacting whether a marriage is genuine.  A father who is informed by Canadian immigration officials that he is both not the biological parent of his child, which by itself would be devastating, may also discover that he is also banned from Canada for misrepresentation because he did not disclose what he did not know in his immigration application.

Fortunately, as long as applicants can show that they both (a) did not know that they were not the biological parents of their child and (b) that this belief was reasonable, the innocent mistake defence to misrepresentation would likely apply.



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.
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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.