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  »

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The Federal Court (the “Court“) in Habtenkiel v. Canada (Citizenship and Immigration), has certified a question that if answered in the affirmative would seem to pretty much shut the door on humanitarian & compassionate (“H&C“) appeals of s. 117(9)(d) refusals.  The certified question is:

In light of sections 72(2)(a), 63(1) and 65 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and the case of Somodi v. Canada (Minister of Citizenship and Immigration)2009 FCA 288 (CanLII), [2010] 4 F.C.R. 26 (F.C.A.), where the applicant has made a family class sponsorship application and requested humanitarian and compassionate considerations within the application, is the applicant precluded from seeking judicial review by the Federal Court before exhausting their right of appeal to the Immigration Appeal Division where the right of appeal is limited pursuant to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227?

That question is long and confusing, but lets break it down.

 » Read more about: Court Certifies Question on Judicial Review of 117(9)(d) Refusals – [Updated August 6]  »

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On April 25, I blogged about how the Federal Court had certified the following question involving s. 117(9)(d) of the Immigration and Refugee Protection Regulations (“R179(9)(d)”):

In light of sections 72(2)(a), 63(1) and 65 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and the case of Somodi v. Canada (Minister of Citizenship and Immigration), 2009 FCA 288 (CanLII), [2010] 4 F.C.R. 26 (F.C.A.), where the applicant has made a family class sponsorship application and requested humanitarian and compassionate considerations within the application, is the applicant precluded from seeking judicial review by the Federal Court before exhausting their right of appeal to the Immigration Appeal Division where the right of appeal is limited pursuant to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227?

On June 11, 2013, in Fang v. Canada (Citizenship and Immigration) (“Fang“), VB2-00332, Member Mattu of the Immigration Appeal Division (the “IAD“) issued a decision which raises similarly broad issues.  Andrew Wlodyka, the appellant’s counsel, has informed me that an Application for Leave to Commence Judicial Review is currently underway, as confirmed here, and I wouldn’t be surprised if the litigation resulted in a certified question.

The issue is whether the IAD has the jurisdiction to determine whether an officer breached procedural fairness in determining humanitarian & compassionate factors (“H&C“) under s. 25 of the Immigration and Refugee Protection Act (“IRPA“)  in an application where R117(9)(d) applies.

R117(9)(d) provides that a foreign national is not a member of the family class if (subject to certain exceptions) the foreign national’s sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application,

 » Read more about: The Jurisdiction of the IAD in Considering Procedural Fairness in 117(9)(d) Cases  »

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The following are some excerpts from the June 2010 RIMbits.  RIMbits are messages sent from National Headquarters to missions overseas.  The June 2010 RIMbits on admissibility consisted of six questions and answers.  I have reproduced two of them for free below.

Please note that the questions and answers below should not be viewed as legal advice.  Rather, they are simply reproductions of how CIC senior management answered specific questions from visa offices in May 2010.

Appeals Allowed and Resumption of Examination

Q. Our FC1 case went to appeal at the IAD and was allowed. The decision states that the Panel is disgusted with the behaviour of the appellant and the applicant and that their behaviour cries out for further investigation, but it is not within the mandate of this panel to carry out such an exercise.

In light of this written comment in the decision, we would like to know if we can re examine and refuse the application as a marriage of convenience. We originally refused under A40(1)(a).

A. When the application for admission of a member of the family class is refused, the sponsor may appeal to the IAD on either legal or humanitarian grounds. Since the refusal may occur at several different stages, the allowance of the appeal results in resumption of the examination by the visa officer, not outright approval of the application. The important limitation is that the visa officer cannot reconsider matters upon which the board has decided. The difficulty in some instances, however, is figuring out exactly what the board decided. So, for example, in the case of King v. Canada (1996 115 FTR 306), the dispute was over whether or not a visa officer could refuse an applicant following a ruling that an initial refusal for medical reasons was procedurally flawed.

 » Read more about: RIMbits Revealed (June 2010)  »

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The following are some excerpts from the May 2010 RIMbits.  RIMbits are messages sent from National Headquarters to missions overseas.  The May 2010 RIMbits on admissibility consisted of seven questions and answers.  I have reproduced three of them for free below.

Please note that the questions and answers below should not be viewed as legal advice.  Rather, they are simply reproductions of how CIC senior management answered specific questions from visa offices in May 2010.

Seized Travel Document

Q) We were notified by the authorities that a permanent resident travelling on a Canadian travel document has been charged with: (1) ______ (2) _____ and (3) _____. According to local authorities, the permanent resident has been released on bail with the condition that she surrender her travel document and that “Stop Orders” are placed with the Immigration exit controls at airports.  We have been formally requested not to issue a new travel document to this permanent resident “until the matters have been disposed.”  

As the charged person is not a Canadian, the Consular Section has referred this case to us.  Although she has not done so at this point, it is possible that in the near future, this permanent resident may request from the visa office a Permanent Resident Travel Document or other documents to facilitate her return to Canada.  Would you have any advice on what we may and may not consider if the permanent resident applies for a PRTD before the judicial proceedings have come to a conclusion? 

(A) The permanent resident’s Canadian travel document has been seized by local authorities in connection with a legal matter.  It is not lost or stolen, and she will get it back when the legal process is completed.  

 » Read more about: RIMbits Revealed (May 2010)  »

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The Federal Court has confirmed that s. 65 of the Immigration and Refugee Protection Act requires that the Immigration Appeal Division determine whether an applicant is a member of the Family Class before considering humanitarian & compassionate considerations (“H&Cs“).

Accordingly, people appearing before the Immigration Appeal Division in a Family Class appeal should be prepared to prove that the applicant is a member of the family class before arguing H&Cs.  This is the case even if the visa officer did not make a determination, or made a negative determination, regarding membership in the Family Class.

For example, if a visa officer rejects a spousal-sponsorship application on the basis of criminality, then at the Immigration Appeal Division the appellant must be prepared to demonstrate bona fides of the relationship prior to analyzing the inadmissibility, and any H&Cs to overcome it.

 

 » Read more about: Immigration Appeal Division Must Address Bona Fides Before H&C  »

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