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.

The Test

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.

Remorse

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,

 » Read more about: Misrepresentation Cases at the Immigration Appeal Division  »

Read more ›

Disclaimer

in Pages

Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be dated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.

 » Read more about: Disclaimer  »

Read more ›

Although you should hire representation if you want to file an application for judicial review of an immigration decision, you should also understand the basics of judicial review.

Read more ›

On June 10, 2010, the Federal Court of Appeal (“FCA“) issued its decision in Canada (Citizenship and Immigration) v. Arif, 2010 FCA 157.  The majority and concurring opinions discussed two procedural rules that will interest immigration practitioners  The first issue was when a Federal Court determination regarding a Citizenship Judge’s decision can be appealed. The second was the relationship between section 399(2) of the Federal Court Rules and the principle of functus officio.

When can a Federal Court Order Regarding a Citizenship Judge’s Opinion be Appealed to the Federal Court of Appeal?

Section 14 of the Citizenship Act regulates appeals from Citizenship judges. Subsections 5 and 6 provide that:

Appeal

(5) The Minister or the applicant may appeal to the Court from the decision of the citizenship judge under subsection (2) by filing a notice of appeal in the Registry of the Court within sixty days after the day on which

(a) the citizenship judge approved the application under subsection (2); or

(b) notice was mailed or otherwise given under subsection (3) with respect to the application.

Decision final

(6) A decision of the Court pursuant to an appeal made under subsection (5) is, subject to section 20, final and, notwithstanding any other Act of Parliament, no appeal lies therefrom.

Subsection six clearly states that the FCA is precluded from hearing appeals from Federal Court decisions pursuant to an appeal of a citizenship judge’s determination. But, does the FCA have jurisdiction to hear appeals from decisions of the Federal Court reconsidering, or refusing to reconsider, its decisions?

In answering this question, the Court applied the test that it articulated in Canada (Minister of Citizenship and Immigration) v.

 » Read more about: Functus Officio  »

Read more ›