Complex Immigration Scheme or Applicant in Impossible Position ?
Complex Immigration Scheme
Particularly in cases where a bad faith relationship pursuant to r.4 of the Immigration and Refugee Protection Regulations is being alleged, Minister’s counsel may begin on a process of what I call “scheme formulating.” A process by which they will theorize the primary purpose of immigration as an elaborate scheme.
First of all let me say flat out, I hate fake relationship schemes. As an immigration lawyer and someone who wishes to lawfully sponsor my genuine spouse down the road, nothing sickens me more than a fake sponsorship scheme. There are tons of companies out there that for a few hundred bucks can cook up a way to get someone into Canada – fake refugee claim, fake sponsorship. These individuals are the reason scrutiny is that much heavier on genuine applicants.
Because of the knowledge of these schemes, inevitably some individuals with genuine sponsorships have their relationship labelled schemes. Particularly at the Immigration Appeal Division (“IAD”), the schemes end up making up a large part of the written decision.
Placing the Applicant in an Impossible Situation
How is an application put in an impossible situation?
In Sandhu v. Canada (Minister of Citizenship and Immigration) 2014 FC 1061 Justice Montigny sets out as follows (emphasis added):
[29] It appears from a careful reading of the decision that the Board member was prone to speculation and disregarded significant portions of the evidence. For example, the Board member found that because the Applicant’s husband knew details about her life, including her address, that he “either memorized or read out the address of the applicant with its postal code in order to try to show he is knowledgeable” about her. Not only is this mere speculation, but it also puts the Applicant in an impossible situation: as was the case in Paulino v Canada (Minister of Citizenship and Immigration), 2010 FC 542 (CanLII), “[a] detail … that might support the genuineness of the relationship is turned around to support a negative finding because it is likely integral to a complex scheme of fabrication” (at para 58).
In Sandhu, the IAD decision both the stated knowledge of the Applicant about the Sponsor as well as an Affidavit from the Applicant nothing that an “uncle” was a family friend (the Board Member concluded was her ex-husband) were disregarded.
In Paulino v. Canada, cited in the Sandhu decision, provisions were made by the Applicant to support the Appellant’s son. The IAD member found that these provisions were part of a scheme. At the Federal Court, Justice Russell, in allowing the judicial review, wrote (emphasis added):
[57] For example, in paragraph 32 of the Decision, the Officer refers to different information which the couple gave “about the cause of the dissolution of the Appellant’s first marriage.” The Applicant has referred to a mental disorder and Mimi had referred to jealousy over the material possessions of neighbours and frequent arguments. There is nothing inherently incompatible about these explanations. Someone with a mental disorder can be jealous and initiate arguments. The Officer then goes on to speculate about the Applicant’s relationship with his ex-wife and mentions that he has made provisions for Mimi’s son. All of this is then subsumed by a general finding that whatever the couple says is all part of a general scheme of fabrication:
There is evidence that he has made provisions even now for the Applicant’s son. However, this is likely integral to the complex scheme the Appellant’s (sic) has fabricated; if he is to be believed, the full extent of which was not known to the Applicant. The panel finds that the couple’s shared knowledge, especially in the personal aspect of their lives, are not reflective of what one reasonably expects to be shared by a couple in a genuine relationship, who avers to be head-over-heel (sic) in love with one another.
[58] Based on the Officer’s approach, it is clear that the couple cannot win. A detail (here the provision that the Applicant has made for Mimi’s son) that might support the genuineness of the relationship is turned around to support a negative finding because it is likely integral to a complex scheme of fabrication. All of their supporting documentation, and even positive factors, are left out of account because they are, according to the Officer, part of a general scheme of fabrication. The Officer says that “their answer about their mutual feelings for one other and their plans are vague: nothing is specific.” Yet there was considerable documentary evidence before the Officer, some of it pre-dating the visitor visa application, that spontaneously reveals the couple’s mutual regard and love for each other. All of this evidence is discounted.
The following are several possible examples I have seen in addition to the two above cases:
- Appellant opens a joint bank account for Applicant (Canadian spouse) – Shows financial interdependence, but can be construed as a credibility concern because shows financial scheme -;
- Appellant provides financial support to Applicant (Canadian Spouse) – Sign of financial interdependence, but can be construed of evidence of ‘buying way into Canada’.
- Appellant has a child with Applicant (Canadian spouse) – Shows purpose of relationship and love, but can be construed as “tool” for immigration;
- Appellant states that they have no immigration purpose to be with Applicant (Canadian spouse) but lack of immigration purpose taken as negative credibility finding because “no other reason appears to exists” – Appellant being honest about purpose should be a positive factor, but honesty treated as dishonesty and grounds for negative credibility finding;
Some of these situations have not yet ruled on by the Courts but I strongly believe they fit the mold (assuming the finding contributed to the the unreasonableness of the overall decision and tainted the overall reasoning).
Challenges with the Argument
I think there are certain issues that will challenge the ability to rely on this decision as a blanket. First and foremost, the “reasonableness standard” still provides that the tribunal-member has discretionary jurisdiction to decide questions of fact. Decisions also generally will not be overturned on one or two unreasonable factual aspects if the decision as a whole is still reasonable. I believe that the difficulty will be in Counsel showing that the one interpretation of a positive primary purpose element as a negative primary purpose element had the effect of leading to the discounting of additional evidence which led to the negative finding.
Conclusion
Every negative credibility finding and negative primary purpose element should be carefully viewed in context. Is that element strictly a negative factor? Can it possibly be a possible factor construed to place the Applicant in a positive situation? It may be a difficult argument to establish (given only a few judicial precedents), but it is one that becomes increasingly important as marriages, relationships, and the ‘bad faith’ scrutiny gets stricter and more complex.
As a post-script, we used this argument in the above example involving bank accounts in recent Judicial Review and were successful. The decision was a brief one and it was only one of many factors the Judge considered, but we arguably ‘won’ on this issue. It has some legs for sure.
Opinion: Gentle Recommendation Not Firm Laws Should Guide the Citizenship Oath/Niqab debate
Introduction and Background
The debate between the place of niqabs in Canadian Citizenship ceremonies is a complicated one.
Well-reasoned arguments have been put forth by both sides, some like Omar Aziz who pointed out in his piece that while a woman’s freedom to dress as she wishes must be protected, the niqab itself challenges our foundations of liberal democracy in Canada. Gerald Kaplan, in his piece admits that he was first put off by the niqab but that having met several Muslim women (many of whom proudly wore the niqab), he changed his views and believed that both the infringement of a woman’s right to choose how to dress and the making of the niqab a political issue was not appropriate.
Just recently, through a last-minute Bill introduced into the House of Commons prior to its pre-election summer recess, Minister of Multiculturalism and State Tim Uppal, has solidified that the Government’s position that the niqab must not be worn at a Citizenship ceremony. Bill C-75, or the Oath of Citizenship Act, would make it a requirement for all individuals to have their face uncovered and be seen and heard taking the Oath of Citizenship. This comes in light of another recent development, which saw Tim Uppal support his fellow MP Lisa Raitt in a decision to waive a new CATSA requirement for individual who wear headgear (i.e turbans) to have them inspected during secondary screening.
What is very interesting about Bill C-75 is that it comes at a time where it has no possibility of being passed into law prior to the election in the Fall. It also comes at a time where the Federal Court of Appeal has yet to decide on the Federal Government’s appeal of the ruling of Justice Boswell of the Federal Court of Canada in Ishaq v. Canada (Minister of Citizenship and Immigration) 2015 FC 156.
In Ishaq, the Applicant filed a Judicial Review for declaratory relief of the requirement that she reveal her face during the Citizenship oath. She had completed all of her other obligations, and had even revealed her face prior in order for her identity to be confirmed. At the time there was both an Operational Bulletin and Manual which required as a matter of policy that an individual visibly reveal his or her identity during the oath. Justice Boswell found that this policy was unlawful both in light of the Citizenship Act and Regulations which required only that the oath be sworn and that a signature be signed and contained no language regarding visual identification. Justice Boswell did not, however, tackle the Charter issues raised and decided it was sufficient to find the policy unlawful.
Bill C-75 thus represents the Government’s steps to address many of Justice Boswell’s concerns regarding the pre-existing policy. As discussed the Federal Government’s appeal in the case is still in process.
My Perspective
I think the main challenge we are having with this debate is that the harm principle (as set out by famous utilitarian political thinker John Stuart Mills) appears to split us two different ways. The harm principle although not enunciated word for word within our legal texts find its way into our case law and into our legal tests (such as the Oakes Test to determine whether it is acceptable to uphold a Charter violation).
In one sense, the niqab represents to many Canadians (what the Government has stated is a majority of Canadians) something they culturally disagree with as un-Canadian – i.e. it doesn’t make us happy and doesn’t bring us utility. They see the niqab as a symbol of misogyny, of a religious/societal modus where women are not recognized on equal footing and where men subject to patriarchally-created rules. For the record, I do not conform to this over-simplified belief and know both individuals who wear the niqab and the hijab out of free will and as part of their complex, strong identities.
Moving to Mills’s second tenant of the principle, the niqab does not apply in the traditional harm principle sense as it does not create any harm to the freedom of any individual or the operation of the state. Ironically, wearing headgear through security is an issue that does possibly trigger the harm principle. The harm principle arguably came through and was applied in the 2009 case of Alberta v. Hutterian Brethren of Wilson Colony 2009 SCC 37 where a religious group argued its religious inability to appear in photographs exempted them from the requirement to take photo license pictures. The Province argued that highway safety and licensing problems were created for the Province and that it was a demonstrable legal concern. Within the Citizenship context is hard to say that the security of other individuals or the state is compromised. There is no harm to either fellow oath takers, the judge or the audience if an individual with a niqab does not show their face. The physical identity is revealed and confirmed in several steps prior to the actual oath taking. There are minimally impairing options that would allow an oath taker to reveal their identity right before in a private setting or through biometric technology.
On this point, I think the harm principle is not challengeable. It is difficult to buy an argument from the Federal Government that public safety is harmed by not confirming the individual’s identity at that exact moment they swear the oath. I don’t think anybody can put forth a strong argument that the niqab harms anyone’s freedoms other than the perceived “western-sensibilities” of Canadians.
The argument that the niqab harms the “liberal democracy of Canada” is also a little far-fetched (with respect to Omar Aziz’s argument). While the principles of democracy may have been formed in Ancient Greece through face-to-face talking circles of aristocratic white males, and arguably developed in Canada and North America by similar artistocratic white men in face-toface meetings, democracy does need to be spoken or expressed face to face. This is even more true in today’s diverse North American society. Individuals with disabilities, individuals from different religious backgrounds, from different countries of origin, can all participate in our democracy simply by wearing what they want, living where they want, and supporting politically whom they want. They don’t need to tell anybody or say anything, and importantly show their face and reveal their identities. Even the act of voting, once registered by name, is inherently private. If our only justification for the niqab requirement is anchoring on tradition, arguably we should be celebrating Citizenship ceremonies with Aboriginal traditions, dance, and drumming (by the way, which unrelated we should start doing).
What about the utility argument? What makes a majority of Canadians happy. The defense for the niqab-ban is that a majority of Canadians are supportive of this policy (in a sense, that it makes a majority Canadian’s “happy.”) This makes sense in the context of most decisions we have the unique democratic to vote on. We get to vote for elected officials, for transit reform, for support of certain policies. We vote for the individuals who bring us some utility.
However, there are two problems with this line of thinking. We don’t vote, and we shouldn’t vote, on issues that threaten to take away from the fundamental human rights of other individuals. This includes the Charter right of religion. Along this line of reasoning, the Government’s logic could be extended to things such as same-sex marriages. The Government could come out with a policy that banned same-sex individuals from taking the Oath simply because a majority of Canadians support it (which thankfully, which most Canadians no longer do). We cannot allow legal decisions to be made on the normative feelings of the tyranny of the majority and without a sufficient legal basis (which the Federal Court has yet to find in support of the policy).
Second, if this was indeed an issue where a “majority of Canadians” do not support the niqab, we need to ask ourselves where the statistical proof is coming from. Without any sort of reliable, independent census, we cannot rely on scattered polls of 1,000 individuals. Most immigrant families I know do not even bother or risk answering any of these questions by phone. I do not for one minute think that a small survey sample (regardless of whatever mathematical formula is used) can suddenly represent all Canadians. However, this same justification is being used time and time again to support new legislative change in immigration.
We are also forgetting, in all this debate (and that the Federal Court alluded to in Ishaq), that the Citizenship Oath itself is a celebration of the transition of an individual from one Country to another and many feel proud of being able to maintain both religious and cultural traditions. Individuals can choose to swear to the Queen of England upon any religious book of their choice, including the Quran. It is indeed a beautiful hybrid of our British tradition and our multiculturalism openness, one I hope is maintained (plus a little more Aboriginal perspective).
What I Think Should Be Done – Set Non-Binding Recommendations. A Woman’s Right to Clothing Preference is Not a Legal Debate.
Laws are different than policy. That was made clear in Ishaq. Policies are problematic when they are attempted to be enforced as laws or defended by institutions as the only way or traditional way things operate. Recommendations serve a different function. They seek to recommend that certain things are not done but that the ultimate “right” lies with the individual to choose or not to choose to follow the guideline. Recommendations may suggest normative guidelines (you should wear clothes that allow you to show your face) but do not ultimately impose normative laws. There are no consequences to an individual who does not follow a recommendation.
A recommendation could be made and disseminated as follows: “Applicants are recommended to wear to the Citizenship Oath, clothing that allows individuals and the Judge present at the Oath to visibly see them and to celebrate the important event alongside them. Individuals are permitted to wear religious clothing and are encouraged to do so in a way that is respectful to themselves and the other new Canadians who are in attendance.”
This recommendation achieves several goals. It suggests, without specifically pointing out a specific article of clothing, that what should be worn should be done […]
