Category Archives: Canadian Immigration Law Blog

The Federal Court in Huang Challenges the Spousal Interview Process

I found Justice Boswell’s judgment in Huang v. Canada (Citizenship and Immigration) 2015 FC 905 to be a very fascinating read.

The background facts in Huang are not presented very extensively, as the decision turned mostly on procedural fairness. Ms. Huang was a 63-year old citizen of China who was being sponsored by her Canadian husband. This application came after a 2012 sponsorship via her daughter was refused regarding concerns about the biological relationship and misrepresentation.  They submitted their application through Hong Kong.

The interview led the Officer to find that the relationship did not “share a level of financial and emotional interdependence expected of a genuinely married couple. The Officer was also “not satisfied that this is not a bad faith marriage entered into primarily for immigration purposes.”

Interesting aspect #1 – Federal Court Affidavits Containing New Information

As it is well established in jurisprudence, affidavits filed in support of Federal Court proceedings cannot contain new evidence that was not in front of the officer/tribunal who rendered the initial decision on review.

Counsel Richard Wazana brought forward an argument through the Federal Court of Appeal’s decision in Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at para 20 that the new evidence should be admitted. Justice Boswell, concurred on this point in part, writing at paragraph 5 of his decision:

However, since the Applicant has alleged various procedural defects not apparent on the face of the record (Association of Universities at paragraph 20), some of this additional evidence adduced by the Applicant may be considered by the Court in reviewing the procedure by which the decision was rendered.

I have similarly used this argument in a Federal Court case (pending in decision) although we did not expand on it as much as we probably could of. The Association of University Colleges case has not been cited as much as I think it should and it can prove a good counterbalance to selective “recording” of GCMS notes that can often occur and needs to be disputed with affidavit evidence.

Interesting aspect #2- opportunity to meaningfully address Officer’s concerns.

I am sure many of you have seen the classic game show “The Newlywed Game” where newly-married couples are asked a set of similar questions which often reveal contrasting and contradictory answers.

While on the TV show this is a source of laughter and entertainment, in real life this is a major source of application refusals and arguably the very premise of the Immigration Appeal Division (IAD) Spousal Appeal witness testimony process. Differing answers, unsatisfactory answers, culturally unappealing answers can all lead to refusal or negative factors against the genuineness of the relationship.

I applaud Justice Boswell for being very open about his criticism of the current process in his reasoning.

I want to take out a series of interesting quotes from the judgment, as to rewrite them would not do his decision justice. I have also run into almost every single one of these issues in my spousal/judicial review work thus far. Emphasis has been added at several locations.

[7]               In the GCMS notes, the Officer listed numerous concerns, notably as to: the inconsistencies or discrepancies in the Applicant’s and her husband’s answers; the Applicant apparently receiving social assistance for housing; her frequent travel to Windsor to visit her daughter and grandchildren; the Applicant seeming to know very little about her husband’s private or personal life (e.g. his hobbies); her previous permanent residence application being refused due to non-compliance and misrepresentation, something which the Officer stated undermines the credibility of the relationship”; her husband’s economic plans and wanting someone to take care of him, which prompted the Officer to write that it seems that sponsor’s relationship to applicant is more like a caregiver; and, lastly, not being satisfied that the stated genesis and development of the relationship demonstrated they were in a genuine relationship.

[8]               I agree with the Applicant that it was procedurally unfair for the Officer not to apprise her of some of these concerns as they arose and not to offer her a meaningful opportunity to address such concerns.

[9]               Furthermore, I disagree with the Respondent that the duty of procedural fairness was satisfied in this case merely by granting the Applicant an interview and did not require the Officer to tell the Applicant whenever her story diverged from that of her sponsor. The Officer’s concerns in this case were not related to the sufficiency of the evidence but, rather, to the credibility of the Applicant herself and the genuineness of the marriage. The Officer here should have provided the Applicant with a meaningful opportunity to respond to the concerns in this regard.

A little later on Justice Boswell writes…

[15]           In my view, maintaining an arcane exception for spousal interviews is unwarranted in cases where an applicant’s credibility is an issue. There is nothing particularly unique about spousal interviews which would warrant such special treatment. Although applicants may present their spouses as witnesses to the genuineness of their marriage, this does not mean they should be presumed to know exactly how their spouses will respond to every question.

…….

[17]           A duty to confront the spouses with any inconsistencies would also not be unduly onerous. It would usually just add a few extra minutes to the end of an interview. This is something which appears to be not unusual (see e.g. Singh v Canada (Citizenship and Immigration), 2012 FC 23 at paragraph 7, 403 FTR 271; Rahman v Canada (Citizenship and Immigration), 2013 FC 877 at paragraphs 8 and 10; Ossete Ngouabi v Canada (Citizenship and Immigration), 2013 FC 1269 at paragraph 9; Lin v Canada (Citizenship and Immigration), 2015 FC 53 at paragraphs 9 and 31).

Why I believe this case has the potential to be VERY important

This case is important because it represents a real challenge of the status-quo of the interview process. Applicants and Sponsors are often put in a lose-lose situation with these interviews. Prepare too much, and sound scripted and not genuine. Prepare not enough, or just be a normal forgetful person, and be found to have differing answers and not genuine.

Furthermore, Citizenship and Immigration Canada in their OP 2 – Processing Members of the Family Class Guide has specifically removed the guidelines/instructions of determining genuineness of the relationship in order to protect system integrity.

Our only real sense of genuineness is (asides from previous case law) has unfortunately come from the controversy surrounding the CIC training manual applying very cultural and economically insensitive characteristics, an issue that I previously covered.

On that note I often find the use of the caregiver ground of refusal  (found in Huang as well) very frustrating and insensitive. Cases where there is discrepancy in the financial earnings, career aspirations, and mental/educational capacity of Applicants and Spouses are often chalked as “caregiver” rather than genuine relationships. The cases of this I seen have most often involved spouses from Mainland China. I equate it to an officer questioning “why the hell would you ever marry that person?” It can be quite hurtful.

Overall, what I think Justice Boswell is saying, is that this process needs to be fixed up. Offering an interview and trying to play “good cop/bad cop” to elicit different answers on very minute details in order to undermine credibility requires more procedural fairness.

It is a great decision that I hope visa officers begin applying. My perspective has always been – you never punish 99% of legitimate Canadian couples to try and get at the 1%. In truth, it is the 1% that probably has every single detail memorized and shared to a T.

Media Must Be Cautious Covering Individual Immigration Cases

This article has been reposted from my New Canadian Media piece: http://newcanadianmedia.ca/item/29342-media-must-be-cautious-covering-individual-immigration-cases

The media has recently served as a powerful platform for immigrants seeking to appeal negative decisions, such as deportation orders and permanent residency denials.

This year alone, a star American CFL football player used the media to obtain his Canadian permanent residence, a family was able to keep its deaf child in Canada, and a Nigerian family was able to remain in Canada with their American-born son.

It’s part of a growing trend that has seen immigration issues receive much better coverage in the Canadian media from articles discussing Bill C-24 to stories about immigrant applicants’ trials and tribulations.

Interestingly, the way recent reporting on individual immigrant stories has occurred contrasts greatly with coverage of other legal issues, such as major crime. Rather than prematurely vilify and convict, the media has been quick to defend many immigrants, and to criticize the Canadian government for its poor policymaking.

Ironically, this has injected the presumption of innocence into an immigration system where such a concept did not previously exist. In my view, this has helped to level the playing field for applicants and to bring awareness to the challenges of our immigration system.

However, several recent stories have also highlighted the worrying trend of the mainstream media being overused or improperly used to deliver specific, individualized Canadian immigration results.

Emotion alone should not guide decision-making

It may seem hypocritical for an immigration lawyer and freelance journalist to be writing this piece. Like some journalists, I, too, have taken off my lawyer hat and criticized the government for producing certain immigration results, sometimes prematurely.

The recent case of the U.K. man who was allegedly excluded from Canada for helping his girlfriend renovate her house is a great example. It was carried by two major British newspapers not necessarily known for balanced perspectives or understanding of Canadian immigration law issues.

I know I commented angrily based on my own experiences with clients with border issues, but admittedly both stories were short on the relevant facts needed to assess whether it was the correct decision by the border officers.

An immigration system cannot be based solely on who can present the most emotionally compelling case.

I find that an increasing number of stories that I read tread dangerously close to appeals to emotion, where incomplete facts are presented and an ideal outcome is then suggested.

Perhaps even more troubling is the fact immigration officials are responding to these cases, seemingly only as a public relations effort, but not in accordance with their own laws and policies. As a result, I have seen clients in similar situations left scratching their heads, contemplating their own media campaigns.

An immigration system cannot be based solely on who can present the most emotionally compelling case. Successful applicants should be asked to meet a baseline of legally clear requirements.

Some individuals have stories of hardship, but will have no immigration options. There are also Canadian immigration programs that specifically consider applicants’ hardship. This balance is necessary. Anything else would inject too much officer discretion and encourage too much exaggeration from applicants, both of which are deeply harmful to system integrity.

Media coverage also raises an underlying ethical dilemma (we can call this the “Conrad Black example”) – should we be giving preference in our system to high-profile immigrants?

Inaccurate reporting can dramatically impact applicants’ lives

Don’t get me wrong. Some journalists write on immigration issues carefully. The best present the facts of immigrants’ cases diligently, outline their basic legal issues clearly and ensure that both the immigrants’ and the government’s sides of the story are presented properly. They encourage dialogue and protect privacy and anonymity when appropriate.

However, I have also read several stories in the media recently where it was apparent that outside input and assistance was not sought prior to publishing.

It is vital that journalists seek some outside assistance when publishing pieces because their articles, while generally of limited evidential value in courts of law, can be relied upon as documentary evidence in immigration applications and appeals.

I would suggest that the recent case of the American-born child to Nigerian parents is an example of this. I do not want to comment on its substantive merits, given the case is still in progress. However, I found that some of the articles failed to adequately present the law and policy in the area, which although quite harsh in its consequences, is more clear in its application.

It is vital that journalists seek some outside assistance when publishing pieces because their articles, while generally of limited evidential value in courts of law, can be relied upon as documentary evidence in immigration applications and appeals.

The information contained in these reports can also serve as outside evidence considered by immigration officers who verify applicants’ information themselves.

Factual inaccuracies or ill-advised quotes in these articles could affect future immigration. Meanwhile, if too much personal information is revealed in these news stories, some immigrants’ abilities to obtain jobs or travel safely to their home countries may be compromised.

The media’s role moving forward

Rather than acting as a mouthpiece for individual applicants on an ad hoc basis, the media could speak up with a loud and clear voice when a high-level of wrongdoing occurs – either to individuals or groups.

I think the best case for media importance is the Lucia Vargas Jimenez suicide in 2013, which began the present day scrutiny of our immigration detention system and the push to end the practice of transit police reporting immigrants to Canada Border Services Agency (CBSA) simply for fare violations.

On the contrary, it is interesting to note that in the Jimenez case, CBSA’s internal response was muted due to fear of a media explosion over the issue. From the government perspective, more balanced media coverage may encourage proactive disclosure of negative news.

I believe the media can, and does, play a key role in uncovering and highlighting institutional challenges.

The media can also play an important role in probing key immigration stakeholders. By presenting more stories about the work of immigration settlement services, pro bono legal clinics and others serving immigrants, the media can help fund those resources.

Finally, the media is a key catalyst for access to justice. The fact that individuals have been increasingly willing to go to the media with their stories before engaging legal counsel and resolving issues with government officials highlights the inaccessibility of our immigration system. I believe the media can, and does, play a key role in uncovering and highlighting these institutional challenges.

Overall, the rise of media coverage that informs Canadians of, and holds government officials accountable on, immigration policy is a good thing for our democracy. What the public must do next is ensure the media is used to advance the integrity of the immigration system as a whole, rather than for just a few individuals.


Will Tao is a Canadian immigration lawyer and freelance journalist based out of Vancouver, B.C. He is the co-founder and lead-author of the Canadian immigration blog, Vancouverimmigrationblog.com.

This article was written with assistance from Abigail Cheung. Passionate about immigration since her undergraduate studies in Ethnicity, Race and Migration at Yale University, Cheung will enter her final year at Osgoode Hall Law School this fall.

 

Can I Lose My Open Work Permit If My In-Canada Spousal Is Refused?

As a relatively new (December 2014) immigration program, the One Year Pilot Project which provides an Open-Work Permit to In-Canada Spousal Sponsorship/Common-Law Applicants raises many interesting factual scenarios – particularly in relation to refused applications.

Under this pilot project, prior to first-stage approval, Applicants who currently are in-status and in Canada are given open work permits allowing them to work anywhere in Canada while their spousal/common-law applications are in processing. I was asked an interesting scenario, one that was brought up by the folks in the Canada Spousal Sponsorship Practitioners Facebook Group.

What if an in-Canada Spousal Application is refused? Can the individual continue to hold and work on their Open-Work Permit.

The relevant Immigration and Refugee Protection Act (“IRPA”)provision states as follows, regarding the circumstances in which temporary status (i.e visitor, student,  worker) may be lost (emphasis added):

Temporary resident

 A foreign national loses temporary resident status

  • (a) at the end of the period for which they are authorized to remain in Canada;

  • (b) on a determination by an officer or the Immigration Division that they have failed to comply with any other requirement of this Act; or

  • (c) on cancellation of their temporary resident permit.

Applying Section 47 of IRPA, there are currently no grounds to require a foreign national holding a open spousal work permit to leave Canada because the Spousal/Common-Law Sponsorship application has been refused.

When does the authorized period to remain in Canada end?

Section 183(4) of IRPA states (emphasis added):

  • Authorized period ends

    (4) The period authorized for a temporary resident’s stay ends on the earliest of

    • (a) the day on which the temporary resident leaves Canada without obtaining prior authorization to re-enter Canada;

    • (b) the day on which their permit becomes invalid, in the case of a temporary resident who has been issued either a work permit or a study permit;

    • (b.1) the day on which the second of their permits becomes invalid, in the case of a temporary resident who has been issued a work permit and a study permit;

    • (c) the day on which any temporary resident permit issued to the temporary resident is no longer valid under section 63; or

    • (d) the day on which the period authorized under subsection (2) ends, if paragraphs (a) to (c) do not apply.

  • Extension of period authorized for stay

    (5) Subject to subsection (5.1), if a temporary resident has applied for an extension of the period authorized for their stay and a decision is not made on the application by the end of the period authorized for their stay, the period is extended until

    • (a) the day on which a decision is made, if the application is refused; or

    • (b) the end of the new period authorized for their stay, if the application is allowed.

  • Non-application

    (5.1) Subsection (5) does not apply in respect of a foreign national who is the subject of a declaration made under subsection 22.1(1) of the Act.

  • Continuation of status and conditions

    (6) If the period authorized for the stay of a temporary resident is extended by operation of paragraph (5)(a) or extended under paragraph (5)(b), the temporary resident retains their status, subject to any other conditions imposed, during the extended period.

It also important to look at when an authorized stay begins.  The Immigration and Refugee Protection Act states (emphasis added):

Authorized period begins

(3) The period authorized for the stay of a temporary resident begins on

  • (a) if they are authorized to enter and remain in Canada on a temporary basis, the day on which they first enter Canada after they are so authorized;

  • (a.1) if they have become a temporary resident in accordance with subsection 46(1.1) of the Act, the day on which their application to renounce their permanent resident status is approved; and

  • (b) in any other case, the day on which they enter Canada.

On my reading, as long as the Applicant has a valid temporary resident visa allowing them to re-enter Canada, they cannot lose their open work permit simply by leaving Canada. This is not a case of implied status.

Of course, there may be challenges in obtaining a visa, which is another matter for another post. From my reading of the legislation, if you leave Canada during the duration of your Canada

Note, that there are several conditions by which an individual can apply for a visitor visa within Canada and holding a work permit in Canada is one of them. See: http://www.cic.gc.ca/english/visit/cpp-o-apply.asp 

Opportunities Created By an Open Spousal Work Permit

There are several potential opportunities created by a foreign national spouse-applicant who holds an open work permit. There may be several economic options worth pursuing if the required work experience can be obtained.

Also, an Overseas application can be initiated and the ability of the individual to travel back to their home country can facilitate any officer interview conducted overseas.

However, given the current uncertainty with Port of Entry examinations and Officer discretion leaving Canada while holding an Open Spousal Work Permit and a In-Canada Spousal Sponsorship refusal may not be the most desirable choice.

What I Would Do – Issue all Spousal/Common-Law Applicants Open Work Permits

I think Citizenship and Immigration Canada has really shot itself in the foot with making the open work permit option only for In-Canada Spousal Sponsorship applicants. Should this option exist for Overseas applicants as well (who by the way can be in Canada when applying). If there did so there would less of a burden and backlog of the domestic system – currently holding up families for 26 months +.

While well-intentioned, the Open Spousal Work Permit has become an emergency lifeline for Canadian couples with a foreign national spouse/common-law partner. It creates the potential for poorly prepared applications filed to save a relationship. If I were CIC I would encourage more individuals to apply abroad, put more resources abroad to boost those processing times, and encourage more spouses to stay and work in Canada on a dual-intention pending processing of their Sponsorship applications.

 

Increased Canadian Immigration Obligation on Transportation Companies (Pt. 1)

This is the first part of a multi-part series which will look at the effect of the Canadian Government’s increased security and information sharing measures may have on transportation to and from Canada.

On June 27, 2015, the Federal Government introduced new proposed “Regulations Amending the Protection of Passenger Information Regulations” through Part 1 – Canada Gazette.

While these regulations are several months away from being in force,  I thought it would be an interesting exercise to see how the Immigration and Refugee Protections Regulations are being amended by the new legislation. In essence, I wanted to ask the question – “what will change?”

You will see below in the embedded pdf that I have taken a particularly interesting snippet from the proposed regulations, those placing obligations on commercial transporters to report information about their passengers, and done a comparison.

IRPR-Proposed-Amendments-Transport

The highlighted portions represent major changes.

Lessons Learned from this Exercise

I think the one thing we can take away is that the legislation in this area is becoming much more specific. The broad language that governed previous rules is being replaced by specific steps that commercial transporters (with a heavy emphasis now on both air and ground transport) must take and when they must take it.

It is very interesting to note that the requirements will be placed on commercial transporters to provide information about not only who was on the vessel but who is expected to be on the vessel. While not clarified in the legislation, it can be reasonably assumed that the Government wants to know more about the entire process – from the reservation to who actually boards the flight.

Another very interesting revelation is that the proposed regulations suggest that there will be much more communication between Canada Border Services Agency (CBSA) and the commercial transporters. CBSA will let the commercial transporters know in advance who may be inadmissible and who may not have adequate documentation. This makes a lot of sense in the context of the electronic-Travel Authorization (eTA) requirement being implemented on August 1, 2015. Meanwhile, commercial transporters appear now to have increased obligations to guarantee the swift exit of those who are not authorized to enter Canada, including strict time deadlines.

What does this mean for the traveller? I think it means that much more vetting will occur at the front end with many airline/transport companies playing the role of a “quasi-2nd line CBSA officer.” I think travellers also need to be very careful when questioned by CBSA officers that they provide accurate information about their travel itineraries. What does this mean for the transport companies?  I think it is time to seek competent counsel (either in-house or external), as I expect the liabilities and compliance costs to increase drastically under several of these new regimes.

More to come in future posts on this topic!

Providing Your Social Insurance Number for Citizenship

social insurance

Introduction

Thanks to the new changes to the Citizenship Act, all of which are now officially in-force as of June 11, 2015, there are also new Citizenship Forms and Regulations.

Part of the changes to the Forms and Regulations are new requirements for Applicants to provide their Social Insurance Number. Unlike in the context of permanent residents, where Citizenship and Immigration Canada (CIC) has made providing Social Insurance Numbers an option, for Citizenship failure to provide a social insurance number if you have one and tax filings if you are required to file them will lead to your application being returned pursuant to s.13 of the Citizenship Act.

While reviewing the CIT0002E form, I noticed something that is worth knowing about providing your SIN number. I will explain this point in a series of screenshots (apologies in advance if they are slightly blurry). You can follow along with the form here.

Section H: Income Tax Information

In this section you are either asked to provide a SIN, a TTN, or an ITN. Canada Revenue Agency (CRA) has clarified what each of these are in here. In short, if you are not eligible for a Social Insurance Number and have submitted a T1261 you are given an Individual Tax Number. If you have immigrated to Canada or become a tax resident and are eligible to apply for a Social Insurance Number but has not yet received it, CRA will issue you a temporary Tax Number

SIN 1

The selection box is kind of confusing as you can see above. It appears the only thing that would trigger selecting no (which also exempts you from having to provide a part 9 consent to allow Canada Revenue Agency disclosure) is if you are not required to file taxes [ps form creators there’s a typo it says part 8].

Importantly, the form reminds you that with your consent CIC will use that information to determine if you meet the income tax filing requirement of the Citizenship Act. If you do not consent, it states that your application will be returned as incomplete and not processed. It also states that the information may be used to determine whether you meet the physical presence requirements. As a reminder those requirements are 4 years out of 6 years and 183 days or more in four calendar years out of the six calendar years being relied upon.

Again, with social insurance numbers and at the ability to trace your financial steps that is easily verifiable.

Part 9 (E) CANADA REVENUE AGENCY 

 

The section begins with another reminder that if you do not consent your application is not complete according to the Citizenship Regulations. Arguably, there’s no real consent being asked for and again the regulations make it clear it is a requirement.

What is very interesting about this section and that it is important to be aware of is that the sections being cited as the impetus for the disclosure are not the only purposes for which the information can be used.

Subsection 5(1)(c) is the grant provision. However, as the wording of the Regulation states there are other purposes that the information will be used for:

SIN 3

 

Section 26.6(2) of the Citizenship Regulations clearly suggests that the information can also be used to determine discrepancies of material circumstances made in the curse of an application. Not necessarily just the Citizenship Application and arguably also within the realm of other government programs.

What Does This All Mean?

MisrepresentationYou can kind of tell it is the theme of the posts today. With the new regulations, it is very possible that misrepresentations on any previously submitted application related to tax or immigration could trigger misrepresentation under s.40 and perhaps even the offense of misrepresentation under s.127.

Prior to submitting a Citizenship Application it is crucial that a full Access to Information and Privacy request to Citizenship and Immigration Canada, Canada Border Services Agency, and the Canada Revenue Agency is performed to ensure the consistency of past submissions and correct any inconsistencies before applying for Citizenship.

 

Forgetting A Period of Employment = Misrepresentation? Quite Probably.

Mr._forgetful

Introduction

Under Canada’s new Express Entry system for Economic Immigration, Applicants are required at the profile creation stage to list their entire employment history for the past 10 years or since the age of 18 in an electronic form.

Particularly for individuals who work contract on short term duration work, this record could be very long and it is very possible that inadvertent omissions could be made.

Upon accepting an Invitation to Apply (ITA), a pre-populated form will be created based on the jobs initially listed in the created profile. For positions not listed, a letter of explanation containing the omitted information is highly recommended. Ultimately, if there are serious discrepancies, such discrepancies should be resolved prior to accepting the Invitation to Apply as doing so begins to triggers the recording of information into CIC’s Global Case Management System (GCMS).

This all leads to a very interesting question:

Could failure to include a position of employment lead to misrepresentation? What if that period of work is not being relied upon to qualify for a specific program?

Paashazadeh v. Canada (Minister of Citizenship and Immigration) 2015 FC 327

Ms. Paashazadeh was a Federal Skilled Worker (FSW) Applicant who in her application failed to disclose two period of employment. Upon receiving a procedural fairness letter requiring her to provide a Social Security Organization certificate, she disclosed a part-time job with a tourist company and a respective full-time job. She wrote in response to the request/procedural fairness letter that she did not intentionally withhold the material and honestly considered the work to be insignificant, given she has already fulfilled her employment requirements for the FSW program.

The Program Manager disagreed, and upon receiving the Social Security Organization certificate refused Ms. Paashazadeh’s application and cited her for misrepresentation under s.40(2) of the Immigration and Refugee Protection Act. The Program Manager noted that the complete and accurate employment history was material to the assessment of eligibility and admissibility.

In denying the Applicant’s Judicial Review, Justice Zinn found that the employment history was material and added the following about the threshold and definition of materiality in the context of misrepresentation (emphasis added):

26     A misrepresentation need not be decisive or determinative to be material; it must only be important enough to affect the process: See Sayedi v Canada (Minister of Citizenship and Immigration), 2012 FC 420 at paras 26-27. I agree with the respondent that a failure (innocent or otherwise) to supply a “truthful, complete and correct” application is material because it prevents the reviewing officer from assessing all of the applicant’s personal facts and to verify all of the information concerning an applicant to determine whether he or she is properly admissible to Canada.

This idea that a misrepresentation only needs to be “important enough to affect the process,” appears to be much a much lower threshold than CIC’s own policy definition of materiality (emphasis added) from ENF2/OP 18- Evaluating Inadmissibility:

10.4. Materiality

With respect to relevancy and materiality, the following principles apply:

  •  What is relevant is a broader concept than what is material.

  • All material factors will be relevant. However, what is relevant may not always prove to be material:

  • (1) information requested from applicants will be considered relevant, otherwise this information would not be requested; but

  • (2) this relevant information will not always affect the process undertaken by an officer or the final decision. Only when it affects the process undertaken, or the final decision, does it become material. At this point, misrepresentation of the information means section A40 would apply, regardless of the decision outcome.

Conclusion

Perhaps with only one case and one definition, it is premature to suggest a trend that the threshold to misrepresentation is lowering. However, this is a very important question given we know the penalties and consequences of misrepresentation are certainly increasing.

Again, it is uncertain how misrepresentation will be applied in the context of Express Entry and in the context of misrepresentation.

A question and an answer that will be update for sure.

The New Direction of Misrepresentation in Canadian Immigration: Criminal Inadmissibility

misrep

Introduction

As I have covered in previous blogs on the topic, I believe Misrepresentation under s.40 of the Immigration and Refugee Protections Act [IRPA] is the new tool that CIC will be increasingly using to defend program integrity.

The penalty for misrepresentation used to be only two years, only a year greater than the penalty resulting from an exclusion order and almost negligible in the case of Applicant filing a Permanent Resident Application to benefit from processing during the two years.

Now with a 5-year bar and the inability to file a PR Application during the 5 years, a misrepresentation finding against an Applicant (or the spouse of the Applicant) has serious consequences and can act as both a punitive and deterrent measure of our immigration system.

It is also important to note that punishment for misrepresentation extends well beyond s.40 of IRPA. In fact, s. 127 of IRPA, creates the offense of misrepresentation. Section 128 clarifies that the offense is a hybrid offense, and thus by operation of s.36(3)(a) IRPA‘s criminality provisions is deemed an indictable offense. By operation, an offense of misrepresentation can trigger not only an s.40 inadmissibility but also a serious criminality or criminality inadmissibility. Criminal inadmissibilities have consequences that last far beyond the 5 year period.

What makes a misrepresentation the IRPA offense of misrepresentation?

Just recently, the Canada Border Services Agency (CBSA) in a news release, raised a very interesting scenario that caught many  of us in the immigration bar a little by surprise. Generally, misrepresentation cases that are brought to light by CBSA (or that we hear of in the media/case law) involve some sort of illegal human-trafficking or illegal immigration scheme. These individuals have generally not been the Applicants themselves and their wrong-doing has affected the general public in a detrimental way.

On June 29, 2015, a Senegalese resident Momar Diba, was found guilty of misrepresentation and charged under ss. 127(a) of IRPA. On June 16, 2014 Mr. Diba had attempted to gain entry into New Brunswick where he was referred to secondary inspection.  During that inspection, it was discovered that Mr. Diba had offered to pay a New Brunswick woman money to marry him so he could stay in Canada.

To many, this case seems like a classic s.40 misrepresentation case, where the individual would be referred to the Immigration Division and sent packing shortly thereafter with a 5-year bar in hand. So what made this more than that?

Comparing the legislative language, it appears that the main distinguishing factor between an s.40 inadmissiblity and an s.127 offense is knowledge of the misrepresentation.

S.127 of IRPA states (emphasis added):

MISREPRESENTATION – No person shall knowingly

(a) directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

(b) communicate, directly or indirectly, by any false or misleading information or declarations with an intent to induce or deter immigration to Canada;

(c) refuse to be sworn or to affirm or declare, as the case may be, or to answer a question put to the person at an exaination or at a proceeding held under this Act;

Knowledge of misrepresentation is not a requirement for s.40. Consequentially, I think the main differentiating factor between the inadmissibility and the offense is this mens reus element.

What does this all mean?

My assessment of the situation is that in cases where CIC believes the Applicant is knowingly misrepresenting or withholding material facts and where the facts are egregious, misrepresentation charges will be pursued in addition to the inadmissibility allowing for a deportation order to be made. A deportation order bars the return of a foreign national to Canada without authorization.

It is also important to note that just because a more serious punishment for the offense of misrepresentation exists, it does not make knowledge a requirement for the inadmissibility of misrepresentation to be made out. In the case of Paashazadeh v. Canada (MCI) 2015 FC 327,  Justice Zinn rejected the Applicant’s argument along those lines and reaffirmed that innocent failures to provide material information can lead to misrepresentation and intention is not a requirement of the provision.

“Bad” Google Searches as Extrinsic Immigration Evidence + A Possible Solution

Google_ban_AD

The recent Federal Court case of Chen v. Canada (Minister of Citizenship and Immigration) 2015 FC 771highlights a growing problem in the assessment of immigration applications, Immigrant Officer relying on poorly researched extrinsic evidence to reject applications.

In Chen, the Applicant, Zhaohui Chen had been convicted of manslaughter and found inadmissible to Canada for serious criminality under section 36(1)(a) of the Immigration and Refugee Protection Act. Mr. Chen exercised his statutory right to file a Pre-Removal Risk Assessment claiming a fear of persecution in China by being Baptist and possible retribution by the manslaughter victim’s family. Mr. Chen cited the risk of Double Jeopardy under Chinese Criminal Law.

The immigration officer (“officer”) in this case conducted his own internet, “Google” search of the term “Zhaohui Chen” and upon finding no results indicating his conviction, concluded that Double Jeopardy was unlikely. Justice Zinn found that failure to put the name search results to the Applicant for comment prior to rendering a decision breached natural justice and allowed the Judicial Review.

When is CIC Required to “Put Their Concerns to Applicants?”

Procedural fairness requires that Applicants have the opportunity to respond to an immigration officers’ concerns under specific circumstances. Two of those particular circumstances include where there are credibility concerns about the Applicant or where the officer relies on extrinsic evidence. Often these two areas are correlated, as a credibility concern can trigger the officers’ extrinsic evidence search or the extrinsic evidence search can reveal information which creates a credibility concern.

In these circumstances, the officer is generally required to contact the applicant laying out the area of concern . The burden of proof is on the applicant to put all necessary information in front of the visa officer and there is no requirement to inform the applicant of all application deficiencies. See particularly: Olorunshola v. Canada (Minister of Citizenship and Immigration), 2007 FC 1056. 

Responding to extrinsic concerns is particularly challenging in the context of Port of Entry examinations. Whereas, with procedural fairness letters one can be given 30-60 days, which upon application can be extended, similar luxuries do not exist at the Port of Entry. Officers in the process of gathering evidence to issue removal orders, can (and do) look through phone evidence, computer evidence, and Google search evidence. This evidence is asked and put to the applicant on the spot to disabuse them of their concerns.

This can be particularly difficult for the already panicking traveller, who is now shown a screenshot of their perceived wrongdoings or a third-party document they have never seen before. With new information sharing regimes coming in, I foresee the use of extrinsic evidence (particularly by CBSA officers) to increase in the near future.

Personally, I also think the amount of time and level of access to extrinsic materials that an applicant has to CBSA officer evidence should have some bearing on the procedural fairness analysis. Unfortunately, in the administrative law context, procedural fairness has become an all-or-nothing proposition. either it was provided or denied by the officer – with nothing in between. In very few Federal Court case law that I have read has procedural fairness been established on the totality of several small administrative breaches that have disadvantaged the Applicant, something that I believe is increasingly happening within the Canadian immigration context.

The Real Problem is the Google Search

Back to the root of the matter, I have a huge concern with Google searches as extrinsic evidence. In fact, in most Canadian legal contexts (notwithstanding the fact the ‘evidence’ rules are laxed in administrative matters and in particular immigration law administrative matters), Google searches are inadmissible.

In fact, as discussed in this great Canadian Lawyer Magazine article by Ontario-based lawyer Ben Hanuka. One particular judicial comment I quite like from the article, is a quote from then Ontario Supreme Court Justice George Strathy:

“[t]here is no evidence that one can extrapolate factual conclusions from the number of occurrences of a particular search phrase on Google.”

But outside of  a legal realm, it is worth assessing the utility of relying on mere Google searches factually and practically as well.

Why don’t we begin with the context of the Chen case, from a completely factual perspective. The Immigration Officer attempted to use Google, a North American search platform currently banned/unavailable in China, and insert the Applicant’s Alphabetized pinyin name, one that legally does not exist in China, to conduct investigative research.

Second, there is no evidence that Immigration Officers are even trained in searches. Having gone through multiple seminars of legal research training on Boolean searches and the proper use of connectors, etc, I still am clueless on how to properly conduct a Google search to give me optimum, specific results.

I have seen even worse than the Chen case. I have personally been involved in files where Google searches pull up outdated or incorrect results that have been used against applicants. Again, within the North American context we consider Google the central hub of our internet activities but in many countries and languages different search engines are used. Google results can be both outdated and limited when compared to these other engines. In fact, Google results can simply “not exist” for various individuals.

Solution – Technological Interaction

The number one way to limit the use of extrinsic evidence is quite logically for an Applicant to submit more, and better evidence. One of the major challenges I have seen with evidence submitted by the Applicants is that the quality and content can often be poor. Photocopies are often unclear. References (i.e. where the evidence was obtained) is often not cited. And often times, particularly if not included in the proper place within an application package or submission, can be difficult to tie to the underlying fact its trying to prove.

I foresee in the not so very future,  procedural fairness letters shifting to virtual form, an upload-able table where the Officer’s concerns are listed alongside the evidence considered – consider like an interactive/virtual foss note system.

I think one of the main solutions that CIC can employ is to implement such a system so that Appicants can also respond, or arguably even submit in advance relevant evidence in a logical way. My one concern, with the way the online portal is currently set up for such things as visa applications and express entry applications, is that it predefines your categories. Documents that do not fit certain categories have to be pdf’d into the “Explanation Letter” or put under an unrelated category where it may be possibly missed.

I like the idea of a using a virtual platform to interact with applicants on their applications and their office concerns.

For example, if an officer were to make a comment challenging the bona fide’s of an individual’s job title by relating to extrinsic evidence from a google search, the applicant would be able to “reply” back virtually through use of his own submissions and evidence. This back and forth could continue as much as would be required to give the Applicant a “necessary opportunity to respond” at which time both officer and applicant would be required to lock-in their inquiries on the matter.

Only time will tell whether this level of interactivity can be implemented or is even desirable from a cost-recovery perspective. Nevertheless, I do hope that Counsel in their judicial reviews take a stronger stance against extrinsic evidence so we may get better jurisprudence on this increasingly important issue.

Disclaimer: I am a chronic Googler who, outside of the legal evidence realm, believe it is the best search platform in the World, bar none.

BC Re-Opened July 2nd With New Programs and Criteria

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I apologize for the long period of no posts. Even checking twitter for #cdnimm news has become a bit of a luxury with several urgent client files on the go.

I wanted to update everybody on important changes that have been made to the BC PNP.

Note that the folowing post was co-written with (and, on that note, substantially written) by Steven Meurrens and can be found on his blog. We hope this piece serves as a good summary and breakdown of the information made available by the BC PNP. I have reposted it with his permission and ask that anybody who wishes to repost it does the same.

Introduction

On July 2, 2015, the British Columbia Provincial Nomination Program (“BC PNP”) re-launched with new program requirements and processes.  The BC PNP remains divided into the Skills Immigration stream and the Entrepreneur Immigration stream.

The most significant changes to the BC PNP include:

  • Introducing an online application process with an electronic payment system;
  • Streamlining the Business Skills and Regional Business programs into one Entrepreneur Immigration stream based on an expression of interest model similar to Citizenship and Immigration Canada’s (“CIC”) Express Entry program;
  • Capping the intake in the Skills Immigration program to 200 new applications in 2015 (Express Entry BC, the Health Care Professionals Stream, and the North East Pilot Project are excluded from this cap);  and
  • Requiring in the Skilled Immigration Stream that applicants with job offers in National Occupational Classification (“NOC”) B positions pass an English language test.

Skills Immigration and Express Entry BC

The Skills Immigration is divided into the following substreams:

  • Skilled Worker
  • Health Care Professionals
  • International Graduates
  • International Post-Graduates
  • Entry Level and Semi-Skilled
  • North East Pilot Project

As well, the Express Entry BC stream is divided into the following substreams:

  • Skilled Worker
  • Health Care Professional
  • International Graduate
  • International Post-Graduate

Most of the requirements to the Skills Immigration streams and sub-streams remain largely unchanged. However, in addition to requiring that applicants apply online, the following are new program requirements:

  • In the Skilled Worker substream the BC PNP has clarified that “several years of directly related work experience” means two or more years;
  • The “Market Rate” for a position is based on an applicant’s employment and educational experience.  It is unclear whether this mean that the Low Rate on the Working in Canada website remains the threshold; and
  • Applicants with job offers in NOC B occupations must demonstrate English language proficiency at Canadian Language Benchmark (“CLB”) level 4.

The BC PNP will only be accepting 200 new Skills immigrant applications in 2015 [Update: this filled up 24 hours after it opened].  This limit does not apply to Express Entry BC, the Health Care Professional stream, or the Northeast Pilot Project.   New applications from individuals residing in Metro Vancouver are restricted to employment offers above the British Columbia median wage of $22.00 per hour.

Entrepreneur Immigration Stream

While the Skills Immigration Stream remains largely unchanged, the Entrepreneur Immigration Stream has been completely overhauled.

The Entrepreneur Immigration Stream is an expression of interest program similar to CIC’s Express Entry.  Applicants must register with the Entrepreneur Immigration Registration (“EIR”), and registrations will be ranked using a points system.  The highest scoring individuals in the EIR will be invited to apply to the Entrepreneur Immigration stream.  The BC PNP anticipates processing Entrepreneur Immigration Stream applications within 3 months.   Successful individuals will be required to enter into a Performance Agreement with the BC PNP stipulating time-frames for the completion of their business commitments.  Once the entrepreneur satisfies the terms of the Performance Agreement, the BC PNP will issue the individual a nomination certificate which can be used to apply for permanent residency.

It is important to note that the BC PNP will only accept a maximum of 200 registrations per month.

To submit an EIR, a prospective individual must meet the following requirements:

  • Be lawfully admitted in the country that they reside;
  • Not be inadmissible to Canada or have an unresolved refugee claim in Canada;
  • Have a personal net worth of $600,000.00;
  • Have either:
    • a minimum of more than three years experience as an active business owner-manager;
    • more than four years of experience as a senior manager; or
    • a combination of at least one year of experience as an active business owner-manager and at least two years of experience as a senior manager;
  • Have a minimum of two-years of post-secondary education or experience as an active business owner-manager with 100% ownership of the business for at least three of the past five years;

When registering for the BC PNP Entrepreneur Immigrant stream applicants will also need to submit short business concepts that will have to demonstrate that their proposed business meets several requirements, including:

  • that the business be an eligible business established either through starting a new business, purchasing an existing business, partnering with an existing business, or partnering with a local or foreign entrepreneur to establish a new business;
  • that the individual make an eligible personal investment of at least $200,000 in the proposed business (or $400,000 if a Key Staff member is proposed); and
  • that the business will create at least one permanent new full-time equivalent job for a Canadian citizen or permanent resident in the proposed business.

The BC PNP has introduced very stringent and complicated requirements regarding what constitutes an eligible personal investment that are extremely circumstance specific and beyond the scope of this update.

Scoring in the Entrepreneur Immigration pool is as follows:

Scoring Sections Points
    1. Experience 24
    2. Net Worth 12
    3. Personal Investment 30
    4. Jobs 36
    5. Adaptability 18
    6. Business Concept 80
Total Points Available 200

Experience points are calculated as follows:

Experience Total Duration Points
Business Owner-Manager Experience Less than 12 months 0
12 to 24 months 4
25 to 36 months 6
37 to 48 months 12
49 to 60 months 15
61 months or more 20
Senior Manager Work Experience Less than 24 months 0
24 to 48 months 4
49 to 60 months 8
61 months or more 12
The maximum score available for this section is 24.
The minimum points requirement is 8.
Individuals cannot get points for both Business Owner-Manager Experience and Senior Manager Work Experience, but rather have to choose.

Net worth points are scored as follows:

Personal Net Worth Points
Total Current Assets (cash and liquid funds) Less than $50,000 0
$50,000 to $199,999 1
$200,000 to $399,999 3
More than $400,000 6
Total Personal Net Worth Less than $600,000 0
$600,000 to $799,999 1
$800,000 to $1,999,999 3
$200,000,000 to $4,999,999 5
$5,000,000 or more 6
The maximum score available for this section is 12
The minimum points requirement for personal net worth is 1.

Eligible personal investment will be scored as follows:

Eligible Personal Investment Points
Less than $200,000 0
$200,000 to $399,999 6
$400,000 to $999,999 20
$1,000,000 or more 30
Applicants must score at least 6 points, or 20 points if they are proposing key staff, to meet the minimum requirement for this section.
The BC PNP will not consider as eligible any investment made prior to the date that an individual is invited to apply for nomination.

Jobs will be scored as follows:

Number of Full-time Equivalent  Job Positions Created and Maintained Points
Less than 1 0
1 2
2 6
3-4 12
5-6 20
7-8 28
9-10 32
11 or more 36
The maximum score available for this section is 36.
The applicant must score at least 2 points, or 12 if there is key staff.
The jobs created and maintained must pay wages that are consistent with the skill level of the position created

Adaptability will be scored as follows:

Factor Points
English language proficiency None or minimal, similar to CLB 3 and below 0
Basic understanding, similar to CLB  4 2
Intermediate and advanced, similar to CLB 5 and above 4
Education level Less than two years of post-secondary education 0
Two years or more of post-secondary education 3
Age Less than 20 0
21-39 3
40-60 4
61-64 2
65 or older 0
Business Exploratory Visits to British Columbia No 0
Yes, 1 or more years ago 1
Yes, less than 1 year ago 2
Canadian work experience, business experience, or studies from within Canada for at least 12 months No 0
Yes 5

The scoring for Business Concepts remains unclear.  12 points out of a possible 80 are based on the location of the proposed business as follows:

Population of BC Regional District Points
More than 500,000 people 0
200,000 to 500,000 1 point
100,00 to 200,000 3 points
70,000 to 100,000 6 points
60,000 to 70,000 8 points
35,000 to 60,000 10 points
Less than 35,000 people 12 points

The remaining 68 points are based on a variety of factors whose exact point allocation has not been released, and will be based on a 1,000 – 1,500 word business concept that EIR registrants must submit.  The points will be based on commercial viability, transferability of skills, and economic benefits.  Applicants must score a minimum of 32 points, based on what at this point appears to be an unpublished checklist.

As noted above, the highest ranking applicants in the EIR will be invited to apply for nomination. Those applicants that are invited to apply will need to engage a qualified supplier to review their personal net worth and accumulation funds as part of the nomination process.  Once the nomination is approved, the applicant and the BC PNP will enter into a Performance Agreement, and the entrepreneur can start their business.  The BC PNP will support the entrepreneur in a work permit application to facilitate this.

Once the entrepreneur completes the terms of the Performance Agreement, he/she can submit a Final Report to the BC PNP to be issued a nomination certificate.  The entrepreneur must demonstrate to the BC PNP that they:

  • are actively managing a business (i.e., be accountable for the day-to-day operations of the business) in British Columbia;
  • reside within 100 kilometers of the business;
  • have been physically present in British Columbia for at least 75% of the time that the individual was on a work permit; and
  • have complied with any other terms of their Performance Agreement.

The nomination certificate can then be used to support a permanent residency application.

More information about the Skills Immigration and Express Entry BC programs can be found here: http://www.welcomebc.ca/Immigrate/About-the-BC-PNP/Skills-Immigration/Skilled-Workers.aspx

More information about the Entrepreneur Immigration Stream can be found here: http://www.welcomebc.ca/Immigrate/About-the-BC-PNP/Entrepreneur-Immigration/Program-Requirements.aspx

Please contact us if you have any questions or concerns about his upcoming change.

Protecting Yourself From Canadian Immigration Employment Fraud – Three Preliminary Steps

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Introduction

Unfortunately, as I have blogged and written about on numerous occasions, there are way too many cheaters currently operating in the global world of Canadian immigration consulting, recruiting, and employment of foreign employees. There’s a whole other issue of incompetent practitioners, but in this post I want to tackle those who purposely are operating fraudulent schemes.

I feel for the victims. Being cheated on is absolutely devastating, regardless of what context. Immigration cheating is another level – individuals quit their jobs, take their kids out of school, and prepare several steps in order to begin what is expected to be a hopeful journey to Canada. All of this to find out there is no job, no position, no work authorization, and no prospects of anything other than heartbreak and financial loss.

This blog post is not a panacea to those challenges. Excellent, well-operated schemes may require competent legal experts to untangle. However, a majority of schemes are so bad and so illegal that a few steps should be able to get to the bottom of it.

So here goes….

1) Read the Contract and Research the Company (Get Advice if Necessary) – In many countries, contracts don’t carry that much legal weight. They carry a lot of weight in Canada. They especially do in the Employment Context.Fraudsters try and put together something fancy looking and expect that you will sign it without reading because it “looks official” and “Canadian.” Especially for non-English speakers, a fancy seal or clauses may immediately give you a false sense of trust. Every clause needs to be read and advice sought on every clause that smells fishy.

Prior to signing your name, consider some of the following (basic W’s)

  • Who are you contracting with? An employer or an agent? What is there name? Do you have any independent proof they exist?
  • What is the content of your contract? Many of these fake contracts are doctored up by individuals with no legal or business experience. Are the terms of the contract even feasible? For example I’d be very concerned if a contract contained clauses that didn’t clearly set out a salary, a location of employment, or necessary immigration steps that needed to be taken prior to effecting the contract.
  • Where is the contracting party located? Start with a basic google/baidu/whatever your country uses search? Where are their offices located? Do they have any other employees? Are they listed in local business guides? Have you performed a Linkedin search? Is the same contracting party the one hiring you? A related issue is whether your work is to be performed at a specific “location”, but that will be a topic of a whole separate future post.
  • When are you expected to start? Begin your immigration process? Hiring a foreign worker is not easy. Any job that states you can come next week with a simple “visa” or “work visa” should raise red flags. Any company that asks you to pass over money to assist in your own hiring is an absolute red flag! There are strict rules against employees paying for their own Labour Market Impact Assessment fees. Companies that ask you to pay a “lump sum” to the company for your own work permit or visa processing fees in the contract should be viewed with some suspicion.
  • Are there third-party agents involved? This should be an immediate red flag, particularly if the agents are from a foreign country and not located in the country you are getting your job in. Recruitment agencies are regulated (although not enough) in Canada, but arguably roam free globally. Be very careful when dealing with them and their purported job offers.
  • How are the companies aesthetics? Do they have a reputable website? Are there pictures of corporate executives/employees listed? Does the contract have a corporate letterhead? Is the signatory page properly effected?

2) Key = Find a Local Canadian Liaison

You don’t necessarily need a lawyer but you need someone knowledgeable and trustworthy on the ground who can make inquiries. At the very least, they need to be able to go to the company that offered you the job, knock on the door, and confirm that the company exists and that you are indeed the chosen candidate of the company.

I would not sign a contract until I have at least that personal knowledge or knowledge of a trustworthy individual.

3) Watch Your/The Communication

As giddy as you may be to get an awesome job offer from a company, make sure to protect your own personal identity. Don’t send information to anyone, definitely without solicitation and always cautiously when solicited. My general rule is I want at least a phone call or a Skype meeting with an individual before I sent personal information outside of my email signature.

Carefully track the communication – who is responding to the emails? Are they professional (do you know their name?)? Are they asking for reasonable requests?

If you have any doubts, remember a simple Google search is your friend (although not always a perfect one). If it is indeed a fraud or a scam there are likely other experiences. If the individual has provided fake contact information, it will likely come up as spam in a Google search. Several consumer protection sites exist that also look at the roots of domains. If a website purported to be a well-established Canadian business is showing up as a recently created site from the United States, red flags should definitely be raised!

Here’s to a fraud-free Canadian immigration system 🙂