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.Read more ›
Section 40 of the Immigration and Refugee Protection Act provides that a permanent resident or foreign national is inadmissible to Canada for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of Canada’s immigration laws.
The general consequence of misrepresenting is a five-year ban from entering Canada.
Canada is very strict on misrepresentation. In Bundhel v. Canada (Citizenship and Immigration), 2014 FC 1147, for example, Mr. Bundhel had been charged and convicted with an offence, which had been overturned on appeal. Mr. Bundhel would accordingly not have been criminally inadmissible to Canada. Because of this, he put on his immigration forms that he had never been charged or arrested. When it discovered thathehad been previously charged, Citizenship and Immigration Canada wrote to him and provided him with an opportunity to explain why he misrepresented. After the immigration officer reviewed the Mr. Bundhel’s explanation that it was an innocent mistake, the officer refused the application, and declared the person inadmissible to Canada for misrepresentation. The Court wrote (citations removed):
Mr. Bundhel’s complaint that the Officer should have considered the fact that he owned-up to the problem at the first available opportunity is also unjustified. Mr. Bundhel only acknowledged the true facts when he was confronted with them. This is not equivalent to a situation where an applicant owns-up to a mistake before it is brought to light or where the file already contains the correct information. In such a case, a favourable inference is more likely to be drawn because it is suggestive of an innocent mistake and not a wilful omission. The same point is made in Uppal v Canada (Minister of Citizenship and Immigration),Read more ›
Citizenship and Immigration Canada’s acknowledgements of receipts for permanent residence applications generally contain some variation of the following statement:
Please inform the visa office of any changes in your application (e.g. birth or adoption of a child, marriage or common-law relationship, new occupation or employer, change of address, change of e-mail address, change of immigration representative, etc). Please include a letter identifying what the changes are and any relevant supporting documents. If your documents are not in English or French, send a notarized (certified) translation with a copy of the originals.
It is generally clear to most applicants that failure to do the above can result in an application being refused for failure to comply with s. 16(1) of the Immigration and Refugee Protection Act (the “Act”), and s. 51 of the Immigration and Refugee Protection Regulations, which together state:
16. (1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires.
51. A foreign national who holds a permanent resident visa and is seeking to become a permanent resident must, at the time of their examination,
(a) inform the officer if
(i) the foreign national has become a spouse or common-law partner or has ceased to be a spouse, common-law partner or conjugal partner after the visa was issued, or
(ii) material facts relevant to the issuance of the visa have changed since the visa was issued or were not divulged when it was issued; and
(b) establish that they and their family members, whether accompanying or not, meet the requirements of the Act and these Regulations.Read more ›
In June 2012 I wrote about how the Conservative government had introduced Bill C-43, the Faster Removal of Foreign Criminals Act (“Bill C-43“). Amongst other things, Bill C-43 increases the penalties for misrepresentation, removes appeal rights for permanent residents who are sentenced to a length of imprisonment of six months or more, gives the Minister of Citizenship and Immigration Canada the power to let otherwise inadmissible people to Canada into the country based on his discretion, and prohibits visa officers from considering humanitarian & compassionate factors in certain scenarios.
On June 19, 2013, Bill C-43 received Royal Assent.
Citizenship and Immigration Canada (“CIC“) has now begun rolling out Operational Bulletins to instruct visa officers of its implications.
Operational Bulletin 532 – Coming into Force of Bill C-43 – Inadmissibility on Security Grounds (“OB-532”)
Subsection 34(1)(a) of the Immigration and Refugee Protection Act (“IRPA“) previously provided that a permanent resident or a foreign national is inadmissible to Canada on security grounds for:
engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada
IRPA 34(1)(a) has been reworded to provide that a permanent resident or a foreign national is inadmissible to Canada on security grounds for:
engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests
As well, a new IRPA 34(1)(b.1) will make a permanent resident or a foreign national inadmissible to Canada on security grounds for:
engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada
The question that arises from this change is what constitutes espionage that is “contrary to Canada’s interest”Read more ›
The Federal Court has affirmed the reasonableness of Citizenship and Immigration Canada’s (“CIC“) decision to declare a Buddhist priest inadmissible to Canada for misrepresentation. The consequence of being declared inadmissible to Canada is a two-year ban on entering Canada.
The priest, who at the time of the decision lived in Toronto, filed an application for permanent residency with CIC in 2009. On his Schedule 1 Background Declaration form, the priest answered as follows:
The priest ticked NO to bullet points 2 and 3 despite having applied for numerous temporary resident visas in the past. While most of these were approved, one of them was rejected.
CIC determined that the priest’s misstatement was material enough to result in the priest being inadmissible to Canada for misrepresentation.
The decision did not address whether a misrepresentation finding would have been reasonable if the priest had never been refused a visa. In other words, if the priest had merely not disclosed that he had previously applied for temporary resident visas which were all approved, would a misrepresentation finding still be reasonable?
It may be that we never learn the answer.
To anyone who recently applied for permanent residency and is thinking “I don’t remember being asked this question and I checked NO to all the boxes in the Schedule 1..” don’t worry… CIC recently changed the Schedule 1 Background Declaration form.
It now only asks if applicants have previously been refused a visa.Read more ›
Is a foreign national inadmissible for misrepresenting a material fact if at the time of filing his/her application for permanent residence or at the time of granting permanent residence he/she had no knowledge of the material fact that constituted such misrepresentation?
Ultimately, the Respondent in Osisanwo did not litigate to the Federal Court of Appeal. However, on April 13, 2012, the Federal Court issued several judgements in misrepresentation cases that establish a clear rule regarding whether innocent mistake is a defence to s. 40 misrepresentation allegations. In essence, without explicitly stating so, the Court described misrepresentation as a strict liability offence, in which there is a “reasonableness” (or “due diligence”) defence.
An Overview of the Rule
Madam Justice Tremblay-Lamer, the author of the aforementioned string of decisions, found that misrepresentation does not always require subjective knowledge. In clarifying this, she first cited the following passage from Jiang v Canada(Minister of Citizenship and Immigration):
With respect to inadmissibility based on misrepresentation, this Court has already given section 40 a broad and robust interpretation. In Khan, above, Justice O’Keefe held that the wording of the Act must be respected and section 40 should be given the broad interpretation that its wording demands. He went on to hold that section 40 applies where an applicant adopts a misrepresentation but then clarifies it prior to a decision. In Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 1059, this Court held that section 40 applies to an applicant where the misrepresentation was made by another party to the application and the applicant had no knowledge of it.Read more ›
People issued removal orders often want to know how long they can stay in Canada before they have to leave, and if there is a chance to defer removal.Read more ›
The Canadian Immigrant Investor Program re-opened on December 1, 2010. The requirements for the program have increased. Applicants will now have to prove a personal net worth of CAD 1.6-million (an increase from the previous $800,000) and make a passive $800,000 (an increase from the previous $400,000) investment with the Government of Canada.Read more ›
When someone sponsors their spouse or common-law partner to immigrate to Canada, it can often be difficult to determine how detailed one’s application should be. Should one include every aspect of their relationship history, including marital difficulties? What about instances of fidelity?
Several Federal Court of Canada decisions involving cases of alleged misrepresentation against applicants offer guidance on this topic.
In Chen v. Canada (Public Safety and Emergency Preparedness),(“Chen“), Mr. Chen, a Chinese citizen, married Ms. Zou, a Canadian permanent resident. Ms. Zou then sponsored Mr. Chen for permanent residence. While Mr. Chen’s application was in processing, a friend told him that his wife had been seen “in the company” of another man in Toronto.
When Mr. Chen arrived in Canada, he discovered that his wife pregnant with another man’s child. According to Justice Harrington, Mr. Chen was willing to forgive his wife, and asked her to get an abortion. She refused. On many occasions she made sexual overtures to him but he was both unwilling and unable to perform. Ms. Chen “taunted Ms. Zou’s lack of manhood.”
As one would expect, the marriage shortly dissolved thereafter.
After the divorce, Mr. Chen married an old flame in China. He then attempted to sponsor her for Canadian permanent residency.
Unfortunately for Mr. Chen, Canadian immigration authorities not only disallowed his new wife’s application, but also declared Mr. Chen to be inadmissible to Canada for misrepresentation in his own immigration application.
Essentially, the Canada Border Services Agency (“CBSA“) alleged that Mr. Chen’s first marriage to Ms. Zou was not genuine, that Mr. Chen lied to enter Canada, and that his permanent residency should accordingly be revoked. Specifically, the CBSA was suspicious because Mr.Read more ›