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.
10 (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
10.2 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
10.3 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 right to appeal on H&Cs) has more procedural rights than an individual who misrepresented, obtained permanent residence, and then applied and was granted citizenship who can become a foreign national simply by Ministerial action.
The Question of Intent in the Context of s.10(1) of the Citizenship Act
What will be interesting, irregardless of the outcomes in the class action suits, is how the Federal Court continues to assess the question of “intent” in the context of misrepresentation for Citizenship Applications.
This was one of the important findings by Justice Strickland in Canada (Citizenship and Immigration) v. Zakaria, 2014 FC 864 (CanLII) where a summary judgment motion was brought by the defendant seeking to dismiss the revocation action against two dependent children who argued that there was no arguable case against them. Justice Strickland dismissed the motion.
I strongly recommend reading this case, particularly paragraphs 55 to 84. The issue was whether any of the three heads of citizenship revocation due to false representation, fraud, and knowingly concealing material circumstances did not require “intent.” This is an important issue, as there are material differences between the wording of s.40 misrepresentation under IRPA which does not require intent by the use of the wording “indirectly.”
As you will note IRPA section 40 is written:
Misrepresentation
Justice Strickland, disagreeing with the Minister’s position that intent is not part of false misrepresentation, finds that Parliament must have intended mental intent to be an element in all three (in the absence of language excluding intent from false misrepresentation).
However, he writes that this not preclude the fact false misrepresentation by a parent (who had requisite intent) could not be transferred to the child applicant, particularly where the Citizenship instructions appear to suggest they do. He writes:
[76] I have some difficulty with this position. It seems to lack logic that, if some but not all of these terms have been found to include intent by the Court, this demonstrates that Parliament would not have intended intent to be an element of the whole of the provision. It seems more likely that if intent is an element of one of these terms then, viewed in the context of the object of the section in whole, intent would be an element of all of them. I also note that none of the cases cited addressed this issue. Further, section 10 reads: “…obtained…citizenship… by false representation or fraud or by knowingly concealing …” (emphasis added) which appears to group false representation together with fraud, the latter of which clearly includes intent.
[77] In view of the foregoing, I find that sections 10 and 18 do include a mental element and, based on the evidence, that Sami and Karim Zakaria did not have intent in these circumstances. However, this is not the determinative issue on this motion for summary judgment.
[78] By way of section 5(2) of the Citizenship Act and section 4 of the Citizenship Regulations a parent is explicitly permitted to make an application on behalf of their minor child or children. Therefore, it has to be assumed that the information contained in that application is and was intended to be provided by the parent. In that event, the child clearly obtains citizenship based on that information, which is admitted in this case. Thus, in my view, as section 10 states that where the Governor in Council is satisfied “that any person has obtained…citizenship… by false representation or fraud or by knowingly concealing material circumstances, the person ceases to be a citizen”, it must be understood to mean that a minor is “any” such a person and that any false representation or fraud or knowing concealment of material circumstances, regardless of whether intent is a requisite element, must be that of the parent. Otherwise, the provision would read “that a person has obtained citizenship by…that person ceases to be a citizen”. In this regard, I agree with the Plaintiff that the focus of the provision is on how any such person obtained citizenship.
It will be interesting to see how this case (and the others in the class action litigation) play out moving forward.
What Should New Can/Xun “Sunny” Wang Clients Do?
Obviously there are no blanket answers and each case needs and deserves its own individual assessment. Some cases will include individuals who misrepresented to get permanent residence while others will include only those who misrepresented to maintain permanent residence. Those latter individuals will likely still have a right to appeal when all is said and done.
What is important, and what is often overlooked by practitioners, is the decision of whether and when to do a mens culpa (i.e. assume responsibility) and how to put together strong humanitarian and compassionate grounds to facilitate a defense against the removal of Citizenship or permanent residence status, as it later may be.
Too many practitioners have gone in with a view that their client holds zero responsibility. I would argue that this is a dangerous approach and that more care and thought needs to be put in at an earlier stage to properly chart out realistic outcomes for clients.
On the note of humanitarian and compassionate grounds, it is clear that best interest of the child and hardship need to be explored to a deeper level to avoid the possibility of a client’s situation being painted with the same brush as other New Can cases. Currently, the running tally at IAD is 4 cases brought before members, and 0 appeals allowed. More success, so far, as been obtained by those who CBSA has chosen not to refer.
I would suggest that there will likely be fact scenarios that do succeed, but that this will be determined by the efforts put in by counsel and Applicants to narrate the discretionary factors unique to individual cases.
