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R. v. Eustaquio, 2018 ABPC 55 – Lessons Learned About Misrepresentation as an Immigration Offense

This case comes from the Provincial Court of Alberta, with the judgment having been released in March 2018.

Ms. Eustaquio  (“Ms. E”) is a 60-year old Canadian citizen with no criminal record. She has two elderly parents who are in their mid-to-late 80s. The deterioration of Ms. E’s father led to Ms. E supporting her niece. Mari Ann Gantuangco (“Ms. G”) to apply for a work permit.

In 2015, Ms. E supported Ms. G’s permanent residence application as part of the live-in caregiver class per s.133 of the IRPR. Ms. E supported the applications through an employment letter – signing a statutory declaration and declaring hours of work.

In reality, Ms. E’s representations were not true. Ms. E’s parents were out of Canada in the Philippines for six months and the United States for thirteen days, contrary to what was stated on the employment letter.

In this matter both Crown and Defence supported relatively lesser penalties, with Crown suggesting a suspended sentence (with probation0 and the Defendant’s counsel suggesting an absolute discharge was appropriate.

Justice Fradsham reviewed several recently cases (nationally) from 2013 to present day and as well looked the appropriateness of a conditional/absolute discharge.

Notwithstanding the personal circumstances of Ms. Eustaquio, which covered several difficult personal circumstances, Judge Fradsham determined that a conditional sentence was not consistent with the general sentencing provisions of the Criminal Code. He writes:

[71]           I am of the view that when all the factors are considered, it would be contrary to the public interest to grant a discharge to Ms. Eustaquio.  A discharge, in the circumstances of this case, would unduly undermine the immigration system as it relates to those seeking permanent residence status.  A discharge on the facts of this case would prevent the attainment of the sentencing objectives of general deterrence and denunciation.

Judge Fradsham also chooses not to follow Crown’s position and instead imposes a $1000 fine (with CDN $750 reduced due the 55 hours of community service performed.

Why this is important?

With auditing of Express Entry applications and other employer-based support letter becoming more and more frequent, it is foreseeable that there will be more cases of employers (especially where family or closely-held business) being scrutinized. While a majority of these cases will likely result in misrepresentation against the immigration applicant as the end of the enquiry, particularly where the employers are comprised of Canadian citizens and in order to denounce and deter this type of conduct, I do suspect more cases to be brought forward. Ms. E was on the generous end of sentencing – she did not seek to do this primarily out of financial gain but instead to help a family member. I don’t see as much generosity being shown where an Employer is actively reaping benefits from an individual (e.g. some sort of payment in lieu of work).

See the case here: http://canlii.ca/t/hqtzb 

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Trying to Understand the Media’s Obsession with Vilifying Some Canadian Immigrant Communities

Multicultural_festival,_East_Vancouver

Almost two years ago, I penned a widely-read piece on my belief that the media needed to be responsible in penning case of individual immigrants for fear of inaccuracies and long-term consequences for the immigrants involved. Some disagreed with my stance, but n sharing those different perspectives I felt it was a fruitful debate. Overall, the last two years has reaffirmed that, where possible, less public exposure to the sensitive situation of my clients is generally a good thing. In a few cases, where I believe media attention would further their case and shed light on gaps in the system, I have shared their stories, with their permission, and done so anonymously. Doing this, in my mind, has struck an effective balance of privacy and progressiveness.

Unfortunately, in the larger context – media attention, particularly on non-positive immigration stories has ballooned into a regular occurrence. In the past several months, I have noticed a somewhat modified trend of “news reporting meets commentary” that I believe has had an harmful effect on new Canadians and immigrants. This is particularly true in stories originating from Vancouver.

The context of these new “news meets commentary pieces” is entirely understandable. Economic uncertainty particular around jobs and education, gentrification and the crowding out of Canadian metropolitan cities, and a general and well-documented “anti-immigrant” sentiment have become accepted as part of our mainstream social psyche. These articles draw attention and are a catharsis for our own social challenges as local residents (whatever that definition is now). It gives us something to blame other than ourselves for our current predicaments.

Unfortunately, this process also creates “othering.” I am firmly opposed to this bandwagon/groupthink mentality – having recently written about why I believe international students, as a specific subgroup, should be better understood in context of their challenges rather than simply through lenses of the far-reaching social and economic stigma that have been applied through mainstream media.

Through reading these pieces, I have come to the conclusion that some journalism that is currently being produced about immigration is stoking the fire of outrage in a very, deeply irresponsible way.

I believe it does so in several ways and through several committed fallacies.

Flaws through Proof by Example (as well as Ignorance, and Repetition)

First, it is the logical fallacy of proof by example which also combines elements of arguments from ignorance (we have no proof otherwise so it must be true) and arguments from repetition (reusing and recycling of examples to paint a larger argument).

For those not familiar with immigrant communities or in interacting with several different immigrants rather than as one silo – it is easily to miss this point. In my practice, I have dealt with hundreds of cases – no two of which I can say are even remotely the same. As a practitioner, one of the first things I make sure to do when seeing a client is leave all my preconceptions, preconceived notions, and prejudices aside. I also take myself and my own background out of my analysis framework. Sure, I bring my experiences with other individuals who may be in similar shoes but I know that each individual immigrant and each narrative is different.

Without taking such a lens, it is easy to tag the issue of fraud (for example) to the individual’s country of origin, but when I dig deeper I realize it is the sub-issues – the age of the applicants, their family status, their marital status, even sexual orientation that play determinate parts in the unique situation an individual faces. It is through this lens that for many of my clients I fight their cases because I believe the Government made mistakes in their assessment. Often times, our review or challenge of immigration refusals is where we believe the individual circumstances of the case have not been considered by officers in deciding their case.

Stepping back to journalism, I see a similar logic taken by these authors in wanting to paint a picture that places the individual in a larger context. Unfortunately this creates larger, harmful generalizations that can be seen through calling something a “Chinese immigration” problem or automatically pinning one example to a larger cultural phenomenon such as East Indian arranged marriages.

Some media may think they are being cheeky in the manner in which they present this perspective, but it is all too visible for those of us that have experienced the subtlety of discrimination and prejudice.  For example, while it is no longer tolerable in mainstream media to go out and say that all individuals with Chinese citizenship are fraudulent or all East Indians arrange their marriages writers and editors now utilize bold “catch all” headlines, feature photos showing a particular ethnic group, or paint verbal pictures and links leading to the same conclusion for the reader. Actual discrimination and implied discrimination are the same thing.

Furthermore, it’s about the quality of these examples. An East Indian newspaper contains an advertisement seeking purported immigration fraud or one international student who owns a multi-million dollar house while not attending classes, cannot simply be deemed to be a representative of the larger whole. For example, if I opened any local newspaper’s classified section and saw the illicit services being advertised or trusted every single email I received from a Nigerian prince and believed the source as credible, I would probably have a serious distrust of most of the population.

As a counterpoint to the fallacy by example, I believe the media has a responsibility to do a better job of quelling this by reporting on more positive immigration stories and not just individuals who are facing deportation. Lost in the narrative are the fact that international students, many who came from poor upbringings, are in fact some of Canada’s leading students, starting up Canada’s next entrepreneurial venture, or are in marriages with Canadians that bring together culture and diversity in such ways impossible in other countries.

Sadly, these stories are becoming fewer and further between. It is becoming more convenient to paint a few bad apple as an infected orchard and for the writers to assume the position of farm owner and immigrants as the indentured workers. This narrative is unfortunately so far removed from the realities of not only what is happening on the ground but from Canada’s own history through indigenous roots.

Flawed Appeals to Authority – rather than to Immigrants Themselves

Second, for some reason there has been appeals to authorities that some journalists have weaved together in ways that stop making sense. One recent piece named as an immigration specialist on the issue of marriage fraud, someone who I have never seen at an immigration conference in my life and who I have spent the last two years digging a case out of the depths of hell, in part, because of that individual’s recommendation of a fraudulent marriage. It is simply not good enough for a journalist to find experts who share the journalist’s narrative on an issue without providing a deeper canvas of alternative opinions – unless they want to hold the piece out as a commentary rather than as a balanced news story.

Consequentially, I would suggest that, on the matter of immigration, we need to get back to reporting fact as fact and opinion as opinion. This molded opinion as fact/news story is simply not working for anyone. With the merger of metropolitan media where two papers essentially are owned by one, there has become less room for the progressive debate and opinion pieces.

Finally, to immigrant communities – it is time for you to speak up. If you read a piece that you believe has misclassified your community or your loved one’s community – starting writing, start challenging, and start sharing your perspectives.  The fear of silence, of your words leading to you being judged, are exactly the fears that the writers of these pieces are banking on to cement their own opinions. Don’t let this happen.

The best way to combat the experts and pundits, many of whom are so far removed from the actual lived experiences, is to provide those experiences. Through storytelling, we can also angle to those important decision-makers – who spend their days basing their political opinions on newspaper headlines, that there is far more to the stories than is currently, presently being told.

Writer’s end-note: I initially wanted to share this opinion in a mainstream media piece but I have decided against it as the content itself is critical of the current approach to immigration taken by several mainstream outlets. Should any of you wish to publish this in a mainstream outlet – contact me and I will give you full permission. This piece also is removed from any position I currently hold as an advocate for equality and diversity and represents my personal views only.

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Why Canada’s Electronic Travel Authorization Scheme Needs to Be Fixed By September 2016

eTA

In an earlier post last year I predicted that the Electronic Travel Authorization (eTA program) may end up being akin to “visas for the visa-exempt.”

True to form, even with the leniency period having been extended until September 29, I have started to see the eTA program became a major barrier for several foreign nationals seeking to enter Canada. These are individuals who prior to the introduction of the eTA had no problem entering Canada and are now flagged by the eTA’s computer-generated system.

The fundamental theory behind the eTA is I think an agreeable one. Up until recently, Canada had no way of tracking the entry of foreign nationals until they arrived at our Borders. Without information in advance, it was difficult for a Canada Border Services Agency officer to prevent individuals who were inadmissible to Canada, Specifically, I am a fan of asking an Applicant to self-disclose where inadmissibility issues are involved. This is preferable to solely using information sharing and creates a more transparent, fair system.

Whether or not you believe the eTA system is agreeable overall, the eTA also represents an important commitment made by Canada to the United States as part of the Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness initiative. Needless to say, it won’t go away anytime soon. Particularly with Canada having recently added several countries, most notably Mexico, to her visa-exempt list,  I suspect the processing of eTAs will only be more scrutinized and lead to more challenges moving forawrd.

That being said, I believe the eTA system needs to be fixed up before it is officially rolled out on September 29, 2016

My Issues with the Current eTA Application System

Currently, the eTA system runs like a self-declared online survey.

Here-in lies the first problem, in my mind. Given the importance of the information contained within, and the fact that an individual is expressly warned that they made be responsible for misrepresentation if they provide false and inaccurate information, I believe the system needs to require everyone to create a MyCIC account and to submit this application through a secure portal. Right not individuals who create eTA profiles and then wish to “link” it to their MyCIC accounts have to jump through multiple hoops to request the linking, often leading to long delays and sometimes even refusals.

The second issue, is that the questions themselves do not lend themselves to enough space for an individual to explain themselves. Under the current system, it appears that refusal of entries or visas to other countries are enough to trigger the longer process.

However, not enough space is provided to adequately explain situations, particularly for individuals who may have a long travel history with more than a few, non-consequential refusals. Similarly for criminal charges or arrests, there is little room to adequately explain why an individual may not be inadmissible. One must essentially submit an eTA to await a battle rather than be able to pre-empt the concerns as they would be able to in a temporary resident visa (“TRV”) application.

The third issue, once an eTA application triggers a request for further information, is that the time provided for such a response is painfully short. Seven days, particularly where linking an account itself can take two to three days, does not provide enough procedural fairness. – particularly where allegations of failing to disclose refusals or suggestions that the Applicant does not have adequate ties to their own home country or proof of funds comes to play.

The larger theoretical question, issue number four, is why for individuals who have refusals or inadmissibility that may not at all be related to Canadian immigration (e.g. a refusal from a third country with an entirely different immigration system), suddenly transforms the eTA into a Temporary Resident Visa application.

In my mind, an individual who has not found inadmissible to Canada should not have to submit the same (and in reality even more documentation) than an individual from a TRV-exempt country.  I don’t think, for example, that an individual’s history of refusals to the United States, Australia, or the U.K. should have an automatic baring on their entry into Canada.

This is where, I think it should be left up to Border Services Officers to allow the Applicant in after questioning at the Border. I have already been contacted by a few clients who had previously traveled to Canada on a regular basis with no problem, triggered now only by the eTA system’s survey of past refusals from other countries. I think if the eTA system itself already triggers a warning and advises the passenger that they will be asked further questions at the Port of Entry that this should be enough to serve the eTA’s dual deterrence and expeditious processing purposes.

I do also note that the way the eTA system currently works, there is no room for an Applicant to upload counsel’s submissions. There should be another column allowing for additional information to be submitted by the Applicant.

The fifth, and final issue, is timing and communication. The way the eTA is advertised now as a seven dollar application that should be processed in minutes gives the impression that an applicant can complete this process a day or at the most a week before their flight.

eta processing times

In reality, this process can be a battle of attrition and there are no clear timelines or processes to appeal or seek expedition. I don’t think judicial review should be the administrative solution to eTA refusals and I think IRCC should implement some sort of review/appeal process to ensure the eTA does not begin to hinder the important global mobility processes that occur every day.

Like any new system, I think the eTA is a work in progress. I think the rationale is fundamentally sound but the execution can be improved drastically.

Your thoughts on the above?

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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.

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