Canadian Immigration Law Blog

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.

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.

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.

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.

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.