Immigration Trends – Page 4

Don’t misrepresent: honesty is the best policy when filling out applications

The following is an article that I wrote for The Canadian Immigrant magazine.

Prospective immigrants committing misrepresentation in their applications is becoming an increasingly big problem in Canada. In Vancouver, an individual was recently sentenced to eight years imprisonment for helping around 1,500 people lie in everything from permanent residency applications to permanent resident card renewals, including the use of fake passport stamps.

As well, thousands of Canadians across the country are embroiled in citizenship revocation proceedings.

Meanwhile, increased information sharing between government agencies, and improvements in the collection and analysis of data are resulting in a huge increase in immigration officials detecting everything from little white lies to complex fraud.

What is misrepresentation?

Canadian immigration officials interpret the definition of misrepresentation very broadly as the goal is to help maintain the integrity of Canada’s immigration process. The law is clear that the onus is placed on the prospective immigrant (or visitor, worker or student) to ensure the completeness and accuracy of their application.

Not all misstatements or omissions will result in an individual committing misrepresentation. The lie has to be material. In other words, the misstatement or omissions need to be ones that could affect whether someone is eligible for the immigration program that they are applying to, or whether they are inadmissible to Canada.

For example, even though being charged with a criminal offence that is ultimately dismissed does not typically render one inadmissible to Canada, the failure to disclose a dismissed charge would be considered misrepresentation. Not disclosing the charge prevents officials with the opportunity to confirm if and why the charge was, in fact, dismissed. On the other hand, mistyping a postal code is unlikely to result in an immigration official determining that someone committed misrepresentation.

Information Sharing Between Canadian Immigration Authorities and Other Countries

The Five Country Conference (the “FCC“), commonly referred to as the “Five Eyes” is a forum for cooperation and information sharing between the border and immigration agencies of Canada, Australia, New Zealand, the United Kingdom, and the United States.

Under the FCC, Canada participates in manual case-by-case and automatic information exchanges with other FCC partners.

In 2009, Canada began manually running a small number of fingerprint-based immigration checks with each FCC partner as part of the High Value Data Sharing Protocol, an immigration information-sharing arrangement that was introduced as a pilot for automated information sharing.

In 2011, the members of the FCC agreed to expand and automate the manual, low volume, and case-by-case exchanges.

Since 2013, under the Beyond the Before Initiative, Canada has been automatically sharing immigration information with the United States. Perhaps the most visible consequence of this information is the dramatically increased number of people who are determined to be inadmissible to Canada for not disclosing their United States visa applications, especially refusals.

In May, 2017, the Trudeau government expanded upon the Harper government’s initiative, and introduced regulatory amendments to the Immigration and Refugee Protection Regulations to allow for the automatic sharing of immigration information with Australia, New Zealand, and the United Kingdom.

Perhaps the most immediate consequence of the new information sharing agreements will be the automatic sharing of information regarding inland asylum claimants, overseas refugee resettlement applicants, and on visa applications for individuals from certain countries that the government has deemed high risk (including Colombia, Iran, and several other Middle Eastern countries that Canada collects biometrics from).

Ineligibility to Make a Refugee Claim

Section 101(d) of the Immigration and Refugee Protection Act states:

101. (1) A claim is ineligible to be referred to the Refugee Protection Division if

(a) refugee protection has been conferred on the claimant under this Act;

(b) a claim for refugee protection by the claimant has been rejected by the Board;

(c) a prior claim by the claimant was determined to be ineligible to be referred to the Refugee Protection Division, or to have been withdrawn or abandoned;

(d) the claimant has been recognized as a Convention refugee by a country other than Canada and can be sent or returned to that country;

(e) the claimant came directly or indirectly to Canada from a country designated by the regulations, other than a country of their nationality or their former habitual residence; or

(f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, except for persons who are inadmissible solely on the grounds of paragraph 35(1)(c).

Serious criminality

(2) A claim is not ineligible by reason of serious criminality under paragraph (1)(f) unless

(a) in the case of inadmissibility by reason of a conviction in Canada, the conviction is for an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years and for which a sentence of at least two years was imposed; or

(b) in the case of inadmissibility by reason of a conviction outside Canada, the Minister is of the opinion that the person is a danger to the public in Canada and the conviction is for an offence that, if committed in Canada,

The Atlantic Immigration Pilot Program

In March 2017 the Government of Canada created several programs to encourage immigration to Eastern Canada through the Atlantic Immigration Pilot Program (the “AIPP“).

The AIPP consists of the following three immigration programs.

Atlantic High-skilled Program (“AHSP“)
Atlantic Intermediate-skilled Program (“AISP“)
Atlantic International Graduate Program (“AIGP“)

In 2017 a maximum of 2,000 applications will be accepted, unless Immigration, Refugees and Citizenship Canada (“IRCC“) decides to increase the cap. Within the 2,000 cap, a maximum of 646 applications will be processed for people destined for New Brunswick, 792 applications applications will be submitted for people intending to live in Nova Scotia, 442 applications for Newfoundland and Labrador, and 120 applications for Prince Edward Island will be accepted for processing.

The main attractiveness of the program compared to federal immigration programs appears to be lower language requirements and the ability of people working in National Occupational Classification (“NOC“) C to participate.

Provincial Endorsements

In each of the programs listed above, applicants must receive provincial endorsement.

Provinces can only endorse individuals in support of applications for permanent residence made through the paper-based (non-Express Entry) process.Atlantic High-skilled Program.

The PEI designation process is described in detail here.

The Newfoundland designation process is described in detail here.

The New Brunswick designation process is described in detail here.

The Nova Scotia designation process is described in detail here.

Atlantic High-skilled Program

The AHSP is for foreign nationals who intend to reside in an Atlantic province who have the ability to become economically established in that province.

A person is eligible for the AHSP if at the time of their application for permanent residence:

they show that they have Canadian Language Benchmark 4 or higher in each of the four language skill areas (listening,

Canadian Immigration Law and International Law

Section 3(f) of Canada’s Immigration and Refugee Protection Act states that Canadian immigration law is to be construed and applied in a manner which complies with international human rights instruments to which Canada is a signatory.

In de Guzman v. Canada (Minister of Citizenship and Immigration), the Federal Court of Appeal articulated the following principles for what this means:

While previously international conventions to which Canada was party to did not give rise to rights and duties enforceable in Canadian courts, this is no longer the case.

The values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review.

Canadian immigration law does not incorporate into it “international human rights instruments to which Canada is signatory” but merely directs that the law be construed and applies in a manner that complies with them.

The words “shall be construed and applied in a manner that complies with” are mandatory and appear to direct courts to give the international human rights instruments in question more than persuasive or contextual significance in the interpretation of the Canadian immigration legislation.

Canadian immigration law must only be construed and applied in a manner that complies with international law where Canada has signed the international instrument creating it.

It is not necessary that each and every provision of Canadian immigration legislation comply with international law. Rather, the question is whether an impugned statutory provision, when considered holistically with others, results in the law complying with international law.

A legally binding international human rights instrument to which Canada is signatory is determinative of how Canadian immigration legislation must be interpreted and applied,

Addressing IRPR r. 117(9)(d)

Regulation 117(9)(d) of the Immigration and Refugee Protection Regulations provides that a foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined. An exception exists where the foreign national was not examined because an immigration officer determined that they did not need to be. Regulation 117(9)(d) typically arises where a person immigrates to Canada, does not disclose that they are either married or have children, and then attempt to sponsor for immigration the people that they did not disclose.

The Charter

If one has a regulation 117(9)(d) refusal and wishes to make a Charter challenge, they should know that the Federal Court of Appeal has already held that the law is constitutional.

In de Guzman v. Canada (Minister of Citizenship and Immigration), [2006] 3 FCR 655, 2005 FCA 436, Ms. de Guzman’s counsel argued that by preventing her from sponsoring her children, and keeping her apart from them, regulation 117(9)(d) deprived her of the Charter’s right to liberty because it restricted her right to make fundamental personal choices, and also that regulation 117(9)(d) deprived her of her Charter right to security of the person by subjecting her to the psychological stress of being separated from close family members.

The Federal Court of Appeal disagreed, and found that s. 7 of the Charter was not engaged because regulation 117(9)(d) was not the cause of Ms. de Guzman’s 12 year separation from her children.

10 Pieces of Advice Before Entering First Year

Half way through my second year of law school I drafted a list of 10 pieces of advice that I would give to anyone entering their first year. I passed this list on to between 5-10 people, and everyone seemed to appreciate it. After not having thought about the list for a few years someone who had heard of it recently asked me for a copy. It took me a fair bit of time searching through old Facebook messages to find it. I accordingly decided to publish the list here so that if I was ever asked again I could easily find my recommendations rather then spend time during a sunny Sunday looking for it.

Remarkably, while I have updated the rationale behind each suggestion, my recommendations for people entering first year law remain the same now as they did when I was a second year law student.

So here they are.

1) You Control How Intense Law School Is

First year law school is intense. There are typically mandatory year long courses, most of which are graded almost exclusively on a final exam. You will be surrounded by some of the smartest people that you have ever met and will (depending on the school) be graded on a curve against them. There will be a flurry of electives that you can choose from and if you’ve gone abroad for school it could be difficult to not become fully immersed in the study of law.

However, law school is only as intense as you want it to be. You could spend thirty hours a week in the library or just use other people’s summaries. For every student spending their weekend reading dozens of cases there is another student probably doing just as well who is rock climbing having just read a ten sentence summary of each case.

Withdrawing and Reinstating IRB Proceedings

Sections 5 and 6 of the Immigration Division Rules, SOR/2002-229 state:

Withdrawing a Request by the Minister for an Admissibility Hearing

Abuse of process

5 (1) Withdrawal of a request for an admissibility hearing is an abuse of process if withdrawal would likely have a negative effect on the integrity of the Division. If no substantive evidence has been accepted in the proceedings, withdrawal of a request is not an abuse of process.

Withdrawal if no evidence has been accepted

(2) If no substantive evidence has been accepted in the proceedings, the Minister may withdraw a request by notifying the Division orally at a proceeding or in writing. If the Minister notifies in writing, the Minister must provide a copy of the notice to the other party.

Withdrawal if evidence has been accepted

(3) If substantive evidence has been accepted in the proceedings, the Minister must make a written application to the Division in order to withdraw a request.

Reinstating a Request by the Minister for an Admissibility Hearing

Application for reinstatement of withdrawn request

6 (1) The Minister may make a written application to the Division to reinstate a request for an admissibility hearing that was withdrawn.

Factors

(2) The Division must allow the application if it is established that there was a failure to observe a principle of natural justice or if it is otherwise in the interests of justice to allow the application.

Application

The leading case on ss. 5 and 6 of the Immigration Division Rules is Canada (Minister of Citizenship and Immigration) v.

Borderlines #15 – Gordon Maynard on New Can Consulting and the Biggest Immigration Fraud in Vancouver History

Gordon Maynard is a Vancouver based lawyer who practices exclusively in Canadian immigration law. He is a past Chair of the Canadian Bar Association’s Immigration Section.

In this episode we discuss the biggest immigration scam in Vancouver’s history, which is still unfolding. Xun (Sunny) Wang was a ghost consultant who is estimated to have made $10 million by filing fraudulent immigration applications for clients of his two firms, New Can Consulting and Well Long Enterprises. Mr. Wang, who is currently serving an eight year jail sentence, and his staff, apparently put fake passport stamps in peoples’ passports in order to lie about having spent sufficient time in Canada to qualify for various immigration programs. The Canada Border Services Agency is now endeavouring through what the Department is calling Project New Can to remove over 1,500 former clients of his for having committed misrepresentation to obtain Canadian permanent residency and/or maintain it. All of the lawyers involved in this podcast have and are representing some of his clients in these removal proceedings.

Topics

1:39 – Gordon provides an overview of the timeline involved in Sunny Wang’s alleged fraud.

7:50 – What constitutes misrepresentation in Canadian immigration applications?

10:30 – We discuss some of the mechanics of what Sunny Wang is alleged to have done.

12:00 – Many New Can clients are saying that they signed blank forms and did not know that the applications were fake. Is this a defence to misrepresentation in Canadian immigration law? Plus Steven reads a summary of what a typical Project New Can procedural fairness letter or allegation looks like.

19:30 – What is the process for having a permanent resident or a foreign national removed from Canada for misrepresentation?

23:00 – What sorts of misrepresentations can actually lead to removal from Canada?

Establishing that Someone is a Refugee

Section 96 of Canada’s Immigration and Refugee Protection Act (the “IRPA) defines a refugee as being a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries. A refugee also includes though who do not have a country of nationality, but who are outside of their country of former habitual residence, and, because of the same fear, are unwilling to return to that country.

Refugee law is very complicated, and components of it are the subject of numerous blog posts on this website.

In this post, I hope to cover some of the major jurisprudence involving the interpretation of IRPA s. 96.

Past Persecution vs. A Future Fear

It is important to understand that refugees need to have a forward looking fear of returning to their country of origin. The existence of past persecution will not create a rebuttal presumption that someone have a reasonable objective or subjective fear of persecution.

In Fernandopulle v. Canada (Minister of Citizenship and Immigration), 2005 FCA 91, the Federal Court of Appeal explicitly held that a person establishes a refugee claim by proving the existence of a well-founded fear of persecution for one of the reasons listed in section 96 of the IRPA and that proof of past persecution for one of the listed reasons may support a finding of fact that the claimant has a well-founded fear of persecution in the future, but it will not necessarily do so. If, for example,

Don’t misrepresent: honesty is the best policy when filling out applications

Information Sharing Between Canadian Immigration Authorities and Other Countries

Ineligibility to Make a Refugee Claim

The Atlantic Immigration Pilot Program

Canadian Immigration Law and International Law

Addressing IRPR r. 117(9)(d)

10 Pieces of Advice Before Entering First Year

Withdrawing and Reinstating IRB Proceedings

Borderlines #15 – Gordon Maynard on New Can Consulting and the Biggest Immigration Fraud in Vancouver History

Establishing that Someone is a Refugee

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