Xun “Sunny” Wang

Award-Winning Canadian Immigration and Refugee Law and Commentary Blog

Blog Posts

New Can/Xun (Sunny) Wang and the Citizenship Revocation Process

The latest numbers show that Canada Border Services Agency (“CBSA”) is moving on the Xun “Sunny” Wang files. To date,  there have been 1632 Suspected New Can Clients and 503 Pending Investigations. The number of new cases has decreased and it is not expected that the total number will top 2500.

What is interesting now is the 219 citizenship revocation cases that CBSA has referred to Immigration, Refugees and Citizenship Canada (“IRCC”). IRCC is responsible for taking action on those files that they wish to pursue by initiating the citizenship revocation process. This is not in any ways unique, Similar citizenship frauds led to similar citizenship revocation proceedings in Eastern Canada in the past several years.

How the Revocation Process Works For These Types of Cases

Under the Citizenship Act, an individual can have their citizenship revoked for fraud, false representation, and knowingly concealing material circumstances:

Revocation by Minister — fraud, false representation, etc.
  •  (1) Subject to subsection 10.1(1), the Minister may revoke a person’s citizenship or renunciation of citizenship if the Minister is satisfied on a balance of probabilities that the person has obtained, retained, renounced or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances.

Worse yet, in the case for many of the 219 New Can/Xun “Sunny” Wang clients who fall under the fake employment to achieve PR category, if the false representation, fraud, or knowingly concealing material circumstances occurred in the context of obtaining permanent residence, the individual could fall under section 10.2 of the Citizenship Act. Under this section, the revocation proceedings could revert their status to foreign national.

Presumption

 For the purposes of subsections 10(1) and 10.1(1), a person has obtained or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances if the person became a permanent resident, within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, by false representation or fraud or by knowingly concealing material circumstances and, because of having acquired that status, the person subsequently obtained or resumed citizenship.

  • 2014, c. 22, s. 8.
Marginal note:Effect of revocation

 A person whose citizenship is revoked under subsection 10(2) or paragraph 10.1(3)(b) becomes a foreign national within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act.

  • 2014, c. 22, s. 8.

At that stage, s.40 (of the Immigration and Refugee Protections Act [IRPA]) misrepresentation could be initiated, for which a foreign national would have no right of appeal to the Immigration Appeal Division pursuant to s.64 and s.65 IRPA. Misrepresentation, if confirmed by the Immigration Division, would then lead to an exclusion and a five-year bar on entry and re-applying for permanent residence. Dependent family members (sponsored by the misrepresenting party) would also be caught by that provision rendering them inadmissible as well.

Expect Some Delay in these Cases

Putting my predictive lens on, I think that there will be some delay in IRCC pursuing those 219 cases. Currently, there is class-action litigation being launched by Lorne Waldman, BCCLA, et. al to challenge the constitutionality of the citizenship revocation process under the Strengthening Canadian Citizenship Act that was introduced under the Conservative government. Cases that are added to that class action litigation are being stayed by the Federal Court pending resolution of the legal questions. These questions, focused on claims that the revocation process violates s.7 of the Charter, will likely go up to the Supreme Court, it could be several years before those cases are finally decided.

Specifically, the revocation process is being challenged as summarized in Monla v. Canada (Citizenship and Immigration), 2016 FC 44 (CanLII) by Justice Zinn:

[79]           In each of the Initial Revocation Judicial Review Applications, it is alleged that the revocation procedure provided for in the Amended Act violates the rights to liberty and security of the person in section 7 of the Charter, and the right to a fair hearing under paragraph 2(e) of the Bill of Rights.  These claims are premised on the fact that the citizenship revocation process under the Amended Act does not require that the Minister to disclose to the affected person all relevant information in his possession, does not provide the affected person with a hearing before an independent and impartial decision-maker, and does not guarantee an oral hearing in all circumstances where it is required.

It is important to note that the Government did not amend the revocation process in Bill C-6, and I do not think that new government legislation changing the Citizenship revocation process is likely.

As it currently stands, those individuals if issued revocation intention notices by the Government would likely join in on the class-action litigation.

Pursuant to the Monla stay order, any case added to the class action will result in the Minister being enjoined from taking steps to act on notices to revoke Citizenship.  This is set out in British Columbia Civil Liberties Association v. Canada (Citizenship and Immigration), 2016 FC 1223 (CanLII).

[5]               By Order dated January 19, 2016 [the Monla Stay Order], the Court enjoined the Minister from taking any steps or proceedings under the notice to revoke citizenship in eight specific applications for leave and judicial review until they are finally determined.

[6]               Following a case-management conference held February 5, 2016, with respect to the Group 2 Revocation Judicial Review Applications, the Court issued an Order dated February 23, 2016, that effectively enjoined the Minister from taking any steps to act on any future notices to revoke citizenship provided the affected person brought an application for judicial review of that decision [the Case-management Order].  Paragraph 3 of the Case-management Order provided as follows:

The Minister shall take no steps or proceedings under a notice to revoke Canadian citizenship issued under the Citizenship Act as amended by the Strengthening Canadian Citizenship Act relating to an application for judicial review that is now or in the future included in the Group 2 Revocation Judicial Review Applications, until notice is provided to the applicant and the Common Legal Issues have been litigated on the basis of the Lead Cases have been finally determined.

However, failure to join the class action case can be detrimental to an Applicant who seeks to make similar arguments (abuse of process, s.7 Charter) at this stage.

In Chabanov v. Canada (Citizenship and Immigration), 2017 FC 73 (CanLII), Justice Strickland upheld the Minister’s decision to revoke the citizenship of an individual who was found to have obtained permanent residence status, and subsequently Canadian citizenship, by false representation, fraud, or by knowingly concealing material circumstances. In Chabanov, the Applicant did not declare a previous criminal record when applying for permanent residence of his dependent spouse, the principal applicant.

Justice Strickland set out early in his observation the following:

Preliminary Observation

[28]           In other, unrelated proceedings, the Revised Citizenship Act revocation process has been challenged on a number of grounds, including that it violates the Canadian Charter of Rights and Freedoms (“Charter”).  Eight of those challenges were heard together in Abdulla Ahmad Hassouna v Minister of Citizenship and Immigration (T-1584-15) on November 15, 2016, however, a decision has not yet been rendered in that matter.  In view of the challenges, this Court has also been proactively case managing applications for judicial review commenced by applicants who have received notices of intent to revoke citizenship under the Revised Citizenship Act, including the issuance of stays in certain circumstances.  In this case, citizenship was revoked pursuant to the procedure contained in the Revised Citizenship Act and prior to the filing of the application to review the revocation decision.  As the Applicant in this matter did not seek a stay, the matter proceeded (Monla v Canada (Citizenship and Immigration), 2016 FC 44 (CanLII); British Columbia Civil Liberties Association v Canada (Citizenship and Immigration), 2016 FC 1223 (CanLII)).

It is important to note however that in the same British Columbia Civil Liberties Association v Canada (Citizenship and Immigration), 2016 FC 1223 (CanLII)) that I cited from earlier above, Justice Zinn refused to issue an interlocutory Order staying the operation of subsection 10(1) of the Citizenship Act. The BCCLA had sought this order for the purposes of assisting those who had received a notice of intent to revoke citizenship and who did not commence an application for judicial review “either because they lack the knowledge, resources or skills needed to retain counsel.”

The order was barred in large part it appears from the fact the stay in Monla granted a way to avoid harm. Irreparable Harm is part of the tripartite test for a Stay.

Justice Zinn wrote:

[25]           Because the harm that may follow receipt of a Notice of Intent to Revoke Citizenship is now an avoidable harm, injunctive relief is not available and these motions must be dismissed.

Justice Martineau upheld a similar line of reasoning in a recent November 2016 decision in Al Madani v. Canada (Immigration, Refugees, and Citizenship), 2016 FC 1263 (CanLII)  where he dismissed a stay.

Ultimately, in the New Can group of cases should be prepared to receive IRCC’s  notice of intention to revoke and add themselves to the list of those cases where stays are being sought.

It does seem nonsensical, from a practitioners standpoint, that an individual who misrepresented and obtained permanent residence but not citizenship (who has the […]

Read More »
About Us
Will Tao is an Award-Winning Canadian Immigration and Refugee Lawyer, Writer, and Policy Advisor based in Vancouver. Vancouver Immigration Blog is a public legal resource and social commentary.

Let’s Get in Touch

Translate »