Last updated on February 11th, 2021
Last Updated on February 11, 2021 by Steven Meurrens
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.
Chieu was a Supreme Court of Canada decision in which the Supreme Court had to answer the question of whether the Appeal Division of the Immigration and Refugee Board, in the exercise of its jurisdiction to have “regard to all the circumstances of the case”, could consider the country (and its conditions) to which an individual would be removed. In determining that it could, the Supreme Court approved the usage of the factors articulated in Ribic v. Canada (Minister of Employment and Immigration),  I.A.B.D. No. 4 (QL), where the Board stated:
In each case the Board looks to the same general areas to determine if having regard to all the circumstances of the case, the person should not be removed from Canada. These circumstances include the seriousness of the offence or offences leading to the deportation and the possibility of rehabilitation or in the alternative, the circumstances surrounding the failure to meet the conditions of admission which led to the deportation order. The Board looks to the length of time spent in Canada and the degree to which the appellant is established; family in Canada and the dislocation to that family that deportation of the appellant would cause; the support available for the appellant not only within the family but also within the community and the degree of hardship that would be caused to the appellant by his return to his country of nationality. While the general areas of review are similar in each case the facts are rarely, if ever, identical.
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.
Ability to Visit Canada
In assessing the Chieu factors, the Federal Court has held that it would be unreasonable to assume that someone who is barred from Canada could simply return as a visitor. In Maharaj v. Canada (Citizenship and Immigration), 2019 FC 78, Justice Brown wrote:
The second unreasonable finding is the repeated assertion by the IAD that the Applicants once removed will have the capacity to continue to visit their grandchildren as they did in the past. With respect, this conclusion is not defensible on the facts and law in this case. As holders of skilled worker visas they were free to come and go from Canada. However, given the IAD’s Decision, each is required to request and obtain an Authorization to Return to Canada [ARC] from the Minister of Citizenship and Immigration before coming back to visit. This is the case because under subsection 69(3) of IRPA, a removal order was made when the appeal was dismissed by the IAD. Pursuant to subsection 224(2) of the IRPR, persons such as the Applicants against whom a removal order has been issued, must leave Canada within 30 day after the removal order becomes enforceable, failing which the departure order becomes a deportation order. Pursuant to subsection 49(1)(a) of the IRPA, the removal order comes into force the day the removal order is made, if there is not right to appeal. Because an application under section 72 of the IRPA for judicial review to this court is not a right of appeal under the IRPA or IRPR, removal orders against the Applicants became enforceable on May 15, 2018. Therefore, as of June 15, 2018, each of the Applicants was deemed to have been deported from Canada. Thus, each requires an ARC to return. While the IAD refers to their “capacity” to return, presumably with reference to their financial ability to pay the costs of travel, the fact remains that their ability to make return visits may be very significantly limited by the ARC process, regardless of their financial wherewithal. I have therefore concluded that the IAD’s finding is not defensible.
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), 2018 FC 600, 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.