A permanent resident can lose their permanent resident status and be banned from Canada if they commit misrepresentation. However, they have a right of appeal to the Immigration Appeal Division (the “IAD“). At the IAD, the permanent resident can argue that the determination that they committed misrepresentation was based on a factual error or mistake in law. They can also argue that there are sufficient humanitarian & compassionate (“H&C“) to warrant relief.
In Wang v. Canada, the Federal Court of Canada set out the following factors (generally known as the “Wang” or the “modified Chieu” factors) to be the appropriate considerations in determining whether there are sufficient H&C considerations to justify not cancelling someone’s permanent resident status and banning them from Canada for five years:
- the seriousness of the misrepresentation leading to the removal order and the circumstances surrounding it;
- the remorsefulness of the permanent residence;
- the length of time spent in Canada and the degree to which the permanent resident is established in Canada;
- the permanent resident’s family in Canada and the impact on the family that removal would cause;
- the best interests of a child directly affected by the decision;
- the support available to the permanent resident in the family and the community; and
- the degree of hardship that would be caused by the permanent resident by removal from Canada, including the conditions in the likely country of removal.
As the IAD noted in Lin v Canada (Minister of Public Safety and Emergency Preparedness), 2017 26505 (CA IRB):
Remorse is defined as deep regret or guilt for a wrong committed, and a feeling of being sorry for doing something bad or wrong in the past. There are two components to remorse in the context of a misrepresentation: one involves the actions preceding the IAD appeal; and the other is the expression of remorse in testimony at the appeal itself. An expression of remorse at the IAD appeal is less meaningful, if the Appellant continued to perpetuate dishonest conduct during the section 44 investigation process and the ID hearing.
As such, permanent residents who have committed misrepresentation need to understand that it is not beneficial to them to continue to lie and deflect. This is obviously not to suggest that they feign remorse. It is possible to be remorseful and to continue to shift blame because one does not understand that the consequences of shifting blame are far worse than acknowledging their remorse.
Testimony vs. Documentary Evidence
People appealing to the IAD need to provide documentation to substantiate their claims wherever possible.
Character references, for example, are preferable to an appellant’s statements about their personality. For example, in Dhindsa v Canada (Citizenship and Immigration), 2017 FC 232 the Federal Court stated:
What the IAD did find to be significant was the fact that no independent evidence had been provided to establish the existence of Gurpreet, his dance troupe or Lovely University. Ms. Dhindsa submits that it was open to the IAD to call Gurpreet as a witness, if it had any concern in this regard. That is not the role of the IAD, however. The onus is on an applicant to present her case and to adduce whatever evidence she wishes to have considered.
Indeed, in Pu v. Canada (Citizenship and Immigration), the Federal Court even stated that it was permissible for the IAD to not believe, or assign little weight to the credibility of, an appellant’s testimony that China prohibits dual citizenship, even though this can be readily verified on Google, because the appellant did not provide documentary evidence.