Last updated on April 14th, 2019
Last Updated on April 14, 2019 by Steven Meurrens
Several large scale immigration frauds in recent years have resulted in thousands of permanent residents facing removal of Canada for misrepresentation. Many are filing appeals based on humanitarian & compassionate considerations.
In assessing such appeals, both the Canada Border Services Agency, Immigration, Refugees and Citizenship Canada and the Immigration Appeal Division face the task of weighing an individual’s previous misconduct against the compassionate mitigating factors which may exist.
To quote Justice Russel in Yu v. Canada, the decision in Dowers v Canada (Minister of Immigration, Refugees and Citizenship, 2017 FC 593 at paragraphs 2 to 6, stresses the point that concern about the past must be separated from concern about the future:
A situation such as the Applicant’s, where a person comes to Canada and stays without adhering to the immigration laws, but, nevertheless, succeeds to be a positive, productive, and valuable member of society must be given careful attention. Section 25 has no purpose if that person is easily condemned for her or his immigration history. The history must be viewed as a fact which is to be taken into consideration, but within a serious holistic and empathetic exploration of the totality of the evidence, to discover whether good reason exists to be compassionate and humanitarian. The discovery requires full engagement:
Applying compassion requires an empathetic approach. This approach is achieved by a decision-maker stepping into the shoes of an applicant and asking the question: how would I feel if I were her or him? In coming to the answer, the decision-maker’s heart, as well as analytical mind, must be engaged (Tigist Damte v Canada (Citizenship and Immigration), 2011 FC 1212, para. 34).
The Federal Court of Canada has developed several other principles that immigration officials and administrative tribunals must apply when assessing humanitarian & compassionate factors in the misrepresentation context.
In (Canada (Citizenship and Immigration) v Liu, 2016 FC 460 Justice Zinn stated that “immigration cheats” cannot be placed “on equal footing with the person who has complied with the law” and that a person’s establishment in Canada must be considered in light of the misrepresentation. He stated:
I agree with the Minister’s submission that the decision is unreasonable because “the IAD, in considering the issue of establishment did not feel [Ms. Liu’s] misrepresentation was a relevant factor.” In my view, it is a relevant factor when considering a person’s degree of establishment. To do otherwise is to place the immigration cheat on an equal footing with the person who has complied with the law. Whether the impact of the fraud is to reduce the establishment to zero or to something more is a question for the discretion of the decision-maker based on the particular facts before him or her. But it must be considered.
Another case setting out this principle in more detail is Dan Shallow v Canada (Citizenship and Immigration), 2012 FC 74, where Madam Justice Snider stated that (citations removed for ease of reading):
As observed by Justice de Montigny in Serda v Canada (Minister of Citizenship and Immigration):
It would obviously defeat the purpose of the Act if the longer an applicant was to live illegally in Canada, the better his or her chances were to be allowed to stay permanently, even though he or she would not otherwise qualify as a refugee or permanent resident.
I agree that establishment in Canada is a relevant factor. However, merely managing to evade deportation for a lengthy period of time through various procedures and protections available through the immigration process ought not to enhance an applicant’s “right” to remain in Canada on H&C grounds. In this case, the Applicants’ stay in Canada was of their own choosing. They could have returned to St. Vincent at any time and chose not to.
For this factor to weigh in favour of an applicant, much more than simple residence in Canada must be demonstrated. And, it must always be remembered that the focus is on the hardship to the Applicants on applying for permanent residence from their country of origin as is required by s. 11 of the Immigration and Refugee Protection Act. Unless the establishment in Canada is both exceptional in nature and not of the applicant’s own choosing, this will not normally be a factor that weighs in favour of the applicants. At best, this factor will usually be neutral. On this question, the Officer did not err.
Double Counting the Misrepresentation
An area that remains unresolved is whether it is an error for an administrative tribunal to “double count” the misrepresentation when assessing other factors. The case of Shen v. Canada (Citizenship and Immigration), 2018 FC 620 summarizes the jurisprudence on this matter, stating that:
Mr. Zhang also argues that reasoning akin to that of the IAD in the present matter has been found to represent a reviewable error in other cases. He relies on the decision in Jiang v Canada (Public Safety and Emergency Preparedness), in which Justice Simpson concluded that the IAD erred in its assessment of an applicant’s degree of establishment by double counting the applicant’s misrepresentation. In that case, the IAD had used the misrepresentation to reduce the weight attributable to the establishment factor and then used it again as a negative factor in the final weighing of all factors. In Lin, in addition to the conclusions on remorse canvassed above, Justice Heneghan relied on Jiang in concluding that the IAD erred by diminishing the applicant’s establishment in Canada on the basis that it resulted from her misrepresentation.
In contrast, in Ngyuen v Canada (Citizenship and Immigration), 2017 FC 27 at paras 31 to 34, Justice Brown referred to a general principle to the effect that applicants should not be rewarded for accumulating time in Canada when they have no legal right to do so. Justice Brown upheld as reasonable the H&C decision under review in Ngyuen which assigned little weight to the applicant’s establishment on the basis that it could not have occurred without her acquiring her immigration status through fraudulent means. In the Decision in the present case, the IAD relied on passages from Ngyuen, including the following statement at paragraph 35:
… I do not see the breach permeating the decision; rather, it is considered where it is relevant. The consequence of ignoring it would be to allow all those who entered Canada illegally to be assessed as if they entered legally, which, according to this Court’s jurisprudence, is not the entitlement of such claimants.
Mr. Shen argues that Ngyuen does not conflict with Jiang and Lin but rather is distinguishable as a decision based on the particular facts of that case. The Respondent takes a similar position and relies on the decisions in Dhaliwal v Canada (Public Safety and Emergency Preparedness), 2015 FC 157 and Wang v Canada (Public Safety and Emergency Preparedness), 2016 FC 705, which expressly distinguish Jiang. In Wang, Justice LeBlanc acknowledged the principle in Jiang, that it is a reviewable error to double count misrepresentation, but relied on paragraphs 106 to108 of Justice Boswell’s decision in Dhaliwal in distinguishing Jiang. Justice Boswell explained that the weighing process contemplated by an H&C application is a qualitative, not quantitative, exercise and that it is not an error to compare positive and negative factors against each other rather than adding up the positive factors and then subtracting the negative ones.
In my view, Jiang is similarly distinguishable in the case at hand. In the relevant portion of the Decision, the IAD notes that it is a positive factor that Mr. Shen owns property in Canada. It then states that, had it not been for his misrepresentation, he likely would not have acquired permanent residence when he did and then be in a position to obtain the properties. Consistent with Ngyuen, such a statement is not in itself a reviewable error. The IAD continues by finding that Mr. Shen may well have contributed to some degree positively in his community in Canada, but it comments that any good deeds must be balanced with his serious violation of IRPA. The IAD states that, because of the seriousness of his actions, Mr. Shen’s positive contribution in his community does not remotely tip the scale in his favour. The IAD concludes that Mr. Shen’s accomplishments with respect to establishment at any level must be measured and assessed against the backdrop of the misrepresentation and that his establishment is not of such significance for the IAD to grant H&C relief.
My conclusion is that this analysis does not demonstrate the IAD double counting the misrepresentation. It does not assign weight to his establishment and then reduce that weight based on the misrepresentation before weighing the factors. Rather, the IAD weighs the establishment against the misrepresentation and finds that it does not tip the balance. It might have been preferable for the IAD to have assigned weight to and added up all the positive factors and then balanced them against the misrepresentation. However, as explained in Dhaliwal, it is not a reviewable error for the IAD to have conducted its analysis as it did.
Nor can I conclude that the misrepresentation permeates the Decision in a manner that renders it unreasonable or that the IAD elevated misrepresentation as a factor to a level that made it impossible to overcome on an H&C analysis. I appreciate that the IAD refers to the misrepresentation not only in the context of its establishment analysis but also in its consideration of Mr. Shen’s remorsefulness, in expressing its views as to the seriousness of the misrepresentation itself, and in arriving at its decision to dismiss the appeal. However, I reach the same conclusion as did Justice Brown in Ngyuen, that the misrepresentation was considered where it was relevant.