Tag Archives: misrepresentation charges

R v. Singh 2019 ABPC 37: The Case DLI’s Should Make Mandatory Reading For Students/Recruiters

R v. Singh 2019 ABPC 37 is an Alberta Provincial Court decision involving an international student Mr. Surinder Singh who appeared at the port of entry in Calgary with a study permit approval letter to pursue a Masters of Chemical Engineering program at the University of Waterloo for which a letter of acceptance was purportedly issued. The problem – the letter was fake. He was not admitted to the University of Waterloo.

Also, the impugned study permit application suggested Mr. Singh had a Bachelors of Engineering from Panjab University and that he was currently a Processing Engineer working at Jagdambay Manufacturing Company. In actuality, he had only completed grade 12 and was working at McDonalds at the time of the application – as he later testified.

Analysis

This case is fascinating for several reasons.

First, it highlights the type of fraudulent schemes that are growing all to common around international study permits. While it is India in this context, the similar pattern of coaching from unlicensed consultants and local liaisons occurs throughout different communities around the world and in Canada. It highlights challenges with no oversight with the letter of acceptance process and how hard it is to detect fraudulent documents in today’s day and age. You see an established process unfold by which Mr. Singh enters Canada and then is coached on how to continue his stay here under different grounds (schools) than those by which he entered. It is also notable that this event took place in 2014 – with the trial and conviction happening some 4.5 years after the events in question took place and almost 3 years after the initial CBSA investigation began. These type of cases and situation simmer for years before being subject to public knowledge

Second, Mr. Singh’s situation represents a step up in terms of prosecuting the actual international student for criminal misrepresentation as opposed to the usual process of simply finding them inadmissible and giving them a five-year bar. No doubt, somewhere down the line, there would have been some consideration as to whether to simply pursue this as an inadmissibility matter but instead significant legal and departmental resources were placed in this case.

The Finding of the Consultancy Agency and the Network Involved

Many of us find it preposterous that individuals would engage with unauthorized practitioners but this case highlights how powerful word of mouth can be. Mr. Singh’s brother heard a friend from an adjoining village had he had recently landed in Canada as a successful immigrant. Mr. Singh and his mother went to the village where they understood the boy’s family lived, went to a shop owner – who then directed them to the family who directed them to the consultant Vicky  (paras 14-17 of the Decision). Again, this sounds very centuries ago in description but is the reality of small town life and demonstrates the desire by which some individuals often wish to leave their current situations.

The initial payment in this case was equivalent to 500,000 Rupees (CDN $10,000) which would be an incredulous amount to charge for any individual permit but again, considered so normal in the context of this case. So was the 25 lakh total price and the addition CDN $40,000 he owed after approval.

The other thing that is very common is the extended informal network of Canadian/international contacts that benefit and participate from these types of operations. The Consultant Vicky sends Mr. Singh to a “Gurjant” guy in Toronto (a purported friend) who ends up advising on education strategy (para 82 of the Decision). Vicky’s mother also assisted in the operation from India (para 51-53 of the Decision).

Judicial Knowledge of Immigration Processes Increasing

In the past where I have looked at non-immigration decisions at various courts and tribunals, I have often noticed language that makes it clear the Court was slightly uncomfortable with the immigration context. In this case, it appears that particularly Crown’s framing of the situation was done very effectively.

Crown put together this summary that looks like it was directly transposed (and or paraphrased) into the decision at para 7 of the decision:

[7]               The following is an outline of the student visa and study permit process.  I am indebted to the Crown for providing this summary in her written submissions.  I accept it as accurate based on the testimony I have heard and accepted and my review of the relevant legislation.  I have attached as an Appendix to these Reasons, all relevant sections of the Immigration and Refugee Protection Act, SC 2001, c 27 and the Immigration and Refugee Protection Regulations, SOR/2002-227

•        A foreign national from India who wishes to study in Canada must first obtain both a student visa and a study permit.

•        The foreign national must successfully apply for the study permit before entering Canada and studying in Canada.

•        The foreign national must also apply for the visa, or any other document required, before entering Canada.

•        By law, a study permit will not be issued to a foreign national unless they have written documentation from the educational institution at which they intend to study that states they have been accepted there.

•        A study permit will not be issued to a foreign national unless they demonstrate they have sufficient financial resources for the proposed study period.

•        Canadian visa officers review applications for study permits from foreign nationals.  If an officer is satisfied an applicant meets the criteria for a study permit, the officer may issue a student visa to the foreign national, which is placed in the foreign national’s passport before they come to Canada.

•        Once the foreign national has received their student visa outside Canada, they may present themselves at the Canadian border.  At the border, the foreign national makes an application to enter Canada and to obtain their study permit.  In other words, the student visa is issued outside Canada and the study permits is issued at the Canadian border.

•        Every person seeking to enter Canada must appear for an examination to determine whether that person has a right to enter Canada, or is or may become authorized to enter Canada.

•        When a foreign national presents himself or herself at the border seeking a study permit, the Canada Border Services Agency officer must satisfy themselves that the foreign national meets all the criteria for the student class (the criteria that would originally have been assessed to determine that a student visa could be issued to the foreign national).

•        Every foreign national entering Canada must establish that they hold the visa or other document required under the legislation and will leave Canada by the end of the period authorized for their stay.

•        Foreign nationals are inadmissible to Canada for misrepresenting or withholding material facts relating to relevant matters that induce or could induce an error in the administration of the Act.  [Footnotes omitted]

Even though we dealing with very particular regimes within immigration, it appears that knowledge around immigration is becoming more widespread. It is important that defense counsel similarly work closely with immigration lawyers when working on cases with an immigration component to ensure they match the resources Crown can often bring with their access to intergovernmental resources and knowledge.

Common Areas of Consultant Fraud

In this decision you get the ‘Rolls Royce’ of ways consultants advise their clients on study permit applications:

  1. Non-disclosure of representative – In this case, in the study permit questionnaire [page 5 – of the document which at the time may (or may not) have looked like this] was declared N/A. It is common for unauthorized consultants to ‘ghost’ a file in that they assist and prepare it without their name or address ever showing up on the file.
  2. Misleading address – A Canadian address was indicated for Calgary on the fraudulent letter of acceptance;
  3. Creating fraudulent documents/letter of acceptance – The fraudulent acceptance letter contained a student number that did not follow standards. We have seen similar issues with fraudulent photos and copy and paste graduation certificates;
  4. Lack of procedural transparency/expertise –  Mr. Singh wanted a work permit and indicated that he believed he would have trouble with the IELTS. He never knew he was going to the University of Waterloo (para 62)
  5. Submitting fraudulent documents to IRCC -Mr. Singh submitted a fraudulent IELTS exams and fraudulent bank statement;
  6. False promises – Even after the consultant Vicky indicated Mr. Singh was ineligible for a work permit, she recommended a study route to learn English (“ESL”) and then ‘get work permit’ (para 59). He then mentioned that ESL was part of the pathway to permanent residence and citizenship (para 60).
  7. Advising  on questionable travel plans – Mr. Singh was advised to fly to Calgary first (where the mailing address was purportedly indicated to be Calgary) to meet with Vicky.
  8. Getting rid of evidence – Vicky asked Mr. Singh for his password to his email account and started deleting emails.
  9. Undisclosed fee splits to third parties – while not directly stated, it is reasonable to assume that Gurjant was a benefactor – either through Vicky’s direct fee payment and/or through the schools he recommended Mr. Singh to attend;
  10. Asking a client to sign without reading – paragraph 92 is an all too common scenario and thread through common refusals.

Flag on File – Tracking Down Subject of Investigation

Many of us have seen IRCC’s efforts to track entries and exits. In this case, at paras 35-36, we see how this can work in practice in the summary of CBSA investigator Jolene Northfield. Having had difficult tracking Mr. Singh in July 2016, he came to CBSA’s attention 2017 thanks to a flag at the Windsor border. Mr. Singh’s Calgary address was obtained and supported the arrest warrant.

Wilful Blindness

Before I go into wilful blindness, there are a few things worth pointing to in the preceding section of the decision titled “credibility.

Judge Skene impugns Mr. Singh’s credibility with a couple lines including  the following:

[139]      I accept that Singh did not fully read his Application, including his supporting documentation, for a student visa and a study permit, although it would have been hard to miss the statements in English directly above each of his signatures.  I find this was an intentional act on his part.  He had no intention of reading it. 

[141]      He signed under the statement “I declare that I have answered all questions in this application fully and truthfully.”  Did he read that declaration?  I am uncertain.  As stated, it is hard to miss.  If he did, he made a material misrepresentation on his Application.  If he did not read what he was signing, in this part of his Application, or any of the other signature lines, that act and those acts were intentional – a deliberate choice.  

I cannot walk into the shoes of the defense counsel in this case in terms of whether they should have pursued a different strategy – one involving preparing Mr. Singh in order to have him understand the mistakes he made and how he had been led into making these various mistakes. It is clear that the lack of sympathy the judge had towards Mr. Singh’s position of blaming the consultant and blaming the visa office for processing his visa did not win over sympathy or create reasonable doubt.

I do feel sympathetic for the manner in which Mr. Singh assumed the ghost consultants who represented him knew what they were doing were licensed. The process of figuring out is licensed is not easy, word of mouth referrals often accepted without background checks, and representatives (including the ghost consultants here) do not often do a good job of telling clients what it is they are actually signing and/or to review carefully materials before signing. Students, especially those eager to leave their situations for Canada at a younger age, have the tendency to be impatient.

For me this is a classic case of s.40 IRPA misrepresentation but to convict him also of the criminal provision s.128 IRPA seems heavy handed.

That being said, the wilful blindness sections of the decision from paragraphs 147 – 161 are an important read. It highlights the vulnerability students face but that those factors of vulnerability (lack of knowledge, dissociation, willingness to follow instructions) can be the very foundation of fraud and contribute to their own roles of perpetrators. Clients (and for students, especially their families) should be asking many questions along the way of those who purport to help them and pose difficult questions. Obeying or Acquiescing to instructions without any active efforts to challenge or clarify those instructions can lead to a judge impugning motives, intent, and wilful blindness. There is also a major benefit to documenting questions to your representatives or to those assisting you by email to clearly demonstrate your actions through your own paper trail.

Exposing a Major Policy Gap – Ease By Which Study Permits Allow Students to Change Institutions

In paragraph 106 of the decision, a major policy gap in Canada’s international study permit is exposed and pointed to by Mr. Singh to the Court. In his testimony Mr. Singh states:

“Vicky consultant told me you are coming here on study permit, you can go anywhere to study.”

Currently, there are no rules, regulations, or policy directives which limit or dissuade students from switching universities. In fact, many schools (especially privates) have continued to operate under a seat sale process where the offering of more letters of acceptance increases the chance of converting an enrollment. Indeed, one of the reason more letters of acceptance need to be issued is with the understanding that students are likely obtaining other letters of acceptance which they may (or may not) accept.

On the flipside, many students are being coached (as it appears Mr. Singh was here) that once you obtain one letter of acceptance a student is free to ‘change their institutions.’ In other cases, after a student enters Canada on a study permit they have been advised that they are able to switch to a work permit quite easily. While they attend classes, a consultant is busy securing them a labour market impact assessment. Not only is this application difficult (for someone who has limited work experience and is still a student), but the positions that the work is organized for almost never actually assists a student in obtaining permanent residence. Most are low-skilled food service/hospitality positions that have the actual effect of culling any academic progress the student may have wanted (or ultimately needed) to pursue.

IRCC needs to step in by creating some sort of compliance process before a student is automatically allowed to switch programs. While I understand the flexibility of issuing study permits that are not tied directly to a college or university, I do believe there needs to be more than an administrative ‘update’ to IRCC after the change and that changing primary institutions (with exceptions for cases where students cannot register because a program is full, for example, or unable to offer their required courses) should be an exceptional circumstance. Furthermore, I am a big proponent of centralizing Letters of Acceptance for international students so that they have some sort of unique identifier and cannot be simply recreated and copied.

There may be some benefit to looking into the Australia model on this particular point and their rules around this.

Anti-Fraud Initiatives

IRCC has since the decision was rendered in February 2019, introduced a new campaign in India to try and curb the use of unregulated consultants.

Unfortunately, heartbreaking stories of immigration fraud too numerous to document in one short blog post. The takeaway from Singh is that there’s not too much stopping the pursuit of the students for whom fraudulent study permit applications may be submitted for as a manner of future deterrence.

Take Away

Schools – private, public, PGWP eligible or not – need to take a hard and deep look at their practices in engaging agents. Regardless of who they have a contract with (could be someone like Gurjant), students are contacting friends and family for word of mouth advice. The process isn’t always clear and that is where schools (and their advisors) ultimately have an important role to play providing basic straight forward instructions so that student have somewhere other than their neighbourhood agent to get advice from.

I think IRCC can also take major steps to make their website much more intuitive and use click down menus to better organize the content. I have been reviewing website content in light of a talk and as someone who spends way too much time on the internet and searching for information, IRCC’s website is not among the best organized. Again, Australia has a lot to offer us in this regards.

I will be presenting this case (along with several other immigration-related cases on the 30th at a session I am facilitating called Taking Stock of International Student Regulations in Canada on July 30th and August 20th. I look forward to seeing everyone there.