Increasingly, in my practice, I have begun to see clients who are having permanent resident (PR) card renewal problems.
Generally, these individuals can be classified into a few categories:
- Individuals who were not diligent in preparing their PR card extension applications and made errors/omissions;
- Individuals who put their PR card extension applications in the hands of someone they shouldn’t have.
Today’s post will focus on those under group 2. As I have re-iterated in several previous posts, s.40 IRPA – misrepresentation can rear it’s ugly head in many forms. Initially, at the stage of a PR who’s application is being investigated. Immigration, Refugees, and Citizenship Canada (“IRCC”) may launch an investigation and eventually this can lead to the issuance of an s.44 inadmissibility report and, eventually, a referral to Immigration Division for misrepresentation.
While the citizenship revocation process is still being dealt with at the Senate and (later) House of Commons level, citizenship can also currently be revoked on the grounds of misrepresentation for individuals that declared false dates on PR card applications and later used those dates as the basis for claiming their meeting of the citizenship residency obligation.
In this post, I will look at some of the recent permanent resident card fraud cases and hopefully my readers can arm themselves and ensure the individuals/representatives they are working with on their PR card applications will not put them at risk for misrepresentation.
Fraud/Misconception #1 – Passport Stamps are Not the Only Proof of Travel History
One of the common strategies I have seen some of the unethical practitioners take is recommend that their clients apply for a new passport with clean stamps and then claim no travel history. Individuals end up with new passports every few years to use to try and enter Canada on the basis of.
This is problematic in many ways. Passports are often, in reality, the least effective evidence for proof of travel history. From publicly available I-94 records (https://i94.cbp.dhs.gov/I94/) to Canada Border Services Agency (“CBSA”)’s own ICES Travel History to now increasing information-sharing powers with U.S. immigration authorities and Canadian tax authorities, there are so many avenues by which conflicting address history can be easily accessed.
Furthermore, should you be entering at a port-of-entry and subject to a flag or even raise concerns by your presence, the search and seizure of mobile devices and a review of your texts and emails would almost instantaneously give away your location. It is also not uncommon for CBSA to seize an individual’s passport and subject them to investigation at which time further cross-references will be made.
The only person you can really “trick” may be the Case Processing Centre-Sydney processing officer in issuing you a new card (if they don’t perform a diligent review on that present application), but your address history declarations will follow you on future applications.
On this note, be very careful as well with the provision of your passport to representatives. Ensure only to provide what is necessary (many times passport bio-data page and copies of stamped pages). Ask to see a copy of all material before it is submitted. It is a common fraud for stamps on passports to be altered or inserted. We have even seen this done, if you can imagine, on copies of passports. This, again, adds grave consequences to one’s application and ultimately will be uncovered sooner rather than later.
Fraud/Misconception #2 – Filing Canadian Taxes, Owning Canadian Property, or Taking “Employment” from a Canadian employer will resolve your residency issues
One of the common things I am told in consultations is that advice was received to “always file Canadian taxes” and that this would serve as some sort of shield against the residency obligation. Again, this is not correct. The filing of Canadian taxes is at the end of the day a voluntary driven process. Individuals can be deemed to be tax residents or clearly be tax residents, but it is ultimately up to the tax payer to file taxes in the right amount (or face CRA penalties). There are also very plausible situations where an individual meets the residency obligation by living in Canada for their first two years of their five year obligation, and then moves abroad and becomes a non-resident. Again, tax residency does not equal permanent residency.
The filing of “bogus” taxes many times can hurt rather than help an application. This is particularly true in the case of the “assignment abroad provision.”
Under Canadian immigration law, there is an exception that allows for a Canadian permanent resident to claim days outside Canada employed overseas while on a temporary assignment from a Canadian company as days in Canada. The legislative provision is written somewhat broadly, but in practice (and by Federal Court interpretation) the provision has been interpreted very narrowly. Needless to say, situations where an employee is maintaining their own employment or working in multiple positions overseas, while claiming that they are doing this on solely and on a full-time basis on behalf of a Canadian company that they have only ‘contracted’ with is unlikely to work for the purposes of renewing a permanent resident card. Indeed, even major companies that transfer their employees abroad (with no set term to the transfer) are cognizant in not over-promising that the transfer will work.
From a humanitarian and compassionate considerations perspective, trying to cover one’s trail with employment that is not legitimate will not serve well in either a residency obligation/removal order appeal and arguably can even be used as the basis for misrepresentation findings down the road.
Eventually, if you do go to appeal, Canada Border Services Agency hearing officers will usually do a pretty thorough job of sussing out your individual history. Claiming low income in Canada, while maintaining a millionaire lifestyle abroad will affect the Immigration Appeal Division’s assessment of factors such as establishment and efforts to return to Canada at the earliest time. Negative credibility assessments may be drawn against the Applicant affecting their overall chances of success.
That is not to say that there is not an exception. I have helped several clients navigate the exception, but it must be done with a collaborative effort (with the Employer) prior to the assignment and ideally when the permanent resident is currently working in Canada. The contract must be drafted very carefully and all parties must know the temporary nature of the transfer, and in most cases set a clear pathway for the permanent resident’s return to a local position.
Fraud/Misconception #3- My Friend’s Address Can Be My Residential Address
A residential address is supposed to be the address that an individual resides at. It is not supposed to be a mailing address. It is not supposed to be the address of friends who can serve as your “Canadian address.” Claiming a residential address in Canada while one is physically abroad creates major contradictions. The way the PR card form requires both travel history, address history, and work history creates three ways of cross-referencing addresses.
Creating too many false addresses (particularly where one is not aware of the addresses) is tantamount to putting unknown items of unknown providence into one’s luggage and attempting to fly to another country. Simply: don’t do it.
Fraud/Misconception #4 – Discretion/Humanitarian and Compassionate Grounds Don’t Exist
It is common for agents abroad not to advise on humanitarian and compassionate grounds. One of the reasons is these types of applications require a lot of preparatory work – explanation letters, supporting evidence, also occasionally case law. However, in many cases (particularly where there are Canadian children involved, major health issues in the family, or even genuine and honest mistakes, there may be some leeway. This leeway should always be pursued at the earliest instance (be it to the CBSA border officer writing up the s.44 report at the Port-of-Entry or to the IRCC upon a residency obligation review). There is a decent amount of discretion at the inland/IRCC level, if sufficient evidence exists. Waiting potentially years later (when much of the hardship dissipates or is backward looking) may hurt an overall application,
Fraud/Misconception #5 – My Children Can Always Save Me
Best interests of the child are required to be considered and to be given substantial weight. The Supreme Court in Kanthasamy and case law dating back to Baker, make this clear. However, a child is not a panacea for humanitarian and compassionate grounds. For children that are very young, IAD members have made decisions suggesting the hardship on the child’s return to their home country may be limited. For children that are older (and close to exceeding dependent age), IAD members may suggest they are independent enough to pursue their own immigration routes. If illness or circumstances requires separation from Canadian children, ensure that all efforts continue to be made to care for and follow the progress of the child in Canada. With the growing trend of younger international student applicants who study in Canada while their parents work abroad, it is easy for a Canadian permanent resident to be classified along the same lines.
Hope the above was useful!
Again, if at all there are concerns about the competency or the ethical practices of your immigration representative, seeking a second-opinion is always an option.
