Consequences of Misrepresentation – IAD Appeals of Removal Orders

Earlier this week, I attended with my client before the Immigration Appeal Division, to appeal an Exclusion Order by the Immigration Division.

The Exclusion Order was issued on the basis of a report by the Minister alleging misrepresentation on the part of my client. A report was prepared by CIC pursuant to s.44(1) of the IRPA. The matter was referred to the ID pursuant to s.44(2).

The allegations were conceded – in other words, not contested by the appellant at the admissibility hearing.

Essentially the Immigration Division found that my client was inadmissible in accordance with section 40(1)(a) of the Immigration and Refugee Protection Act.

The client arrived in Canada as a dependant (never married, no dependants) of his parents who were sponsored as members of the family class by his brother, a permanent resident of Canada.

Both at the time the client made application (on the IMM 008 – application for permanent resident and on the additional family information form) and when he arrived in Canada there was no mention of a wife or child.

Subsequent to his arrival in Canada, an anonymous complaint – a 'poison pen letter' addressed to Citizenship and Immigration Canada resulted in a field investigation back in India to his village and confirmed the existence of his wife and child.

The client would not have been issued a permanent resident visa had immigration officials been advised that he was married and had a child (ie., was not himself a 'dependant').

The appeal therefore, was solely based on s.67(1)(c) of the Act – whether (taking into account the best interests of a child directly affected by the decision) sufficient humanitarian and compassionate considerations warrant special relief (in light of all the circumstances of the case). In essence, we asked that while the exclusion order was valid in law, that the appeal nevertheless be allowed on equitable considerations. Humanitarian and compassionate considerations has been defined in Chirwa as those facts which would excite a reasonable man in a civilized community a desire to relieve the misfortunes of another.

The burden of proof in such circumstances establishing these H&C considerations rests on the appellant. The appellant must establish the existence of these considerations or factors on a balance of probabilities.

The dual cases of Ribic and Chieu guide the IAD in this assessment and notes the following (non-exhaustive) list:

1. The seriousness of the misrepresentation (was it advertent, deliberate/planned? Or was it inadvertent, careless/negligent?);
2. Rehabilitation (not a factor in misrepresentation matters) and remorse (relevant);
3. Length of time in Canada and degree of establishment;
4. The family in Canada and dislocation that removal would cause;
5. Available support that the appellant has in Canada (family/community); and
6. Potential hardship to the appellant in the country of removal.

The IAD has to be 'alert, alive & sensitive' to the best interests of a child likely to be adversely affected by removal.

An essential and important factor is the circumstances surrounding the misrepresentation. Other factors that may be explored is whether any family member is financially dependent on the appellant.

Such appeals are highly fact-specific, nevertheless, relevant jurisprudence should be brought to the attention of the IAD member.

In this matter, the decision of the IAD in Kular v. MCI [2005] IADD No. 1713 VA4-03017 was (in my opinion) relevant. In that case, the appellant arrived in Canada sponsored by his Canadian wife and failed to disclose his children and partner from a previous relationship. There was insufficient evidence as to a marriage (however, this is highly suspect given the dearth of children outside of marriage in Indian villages). While there was an assertion that the appellant was previously married, the Minister did not produce a marriage certificate. A field investigation was undertaken which confirmed the existence of the children. The IAD, finding the appellant had insufficient length of time in Canada and limited establishment, allowed the appeal even though it essentially found him to be a dead-beat father to his children in India (my wording). Apparently his lack of sophistication was sufficient for the IAD to find that the misrepresentation was not deliberate and his relationship to his wife in Canada was a strong factor for the IAD to allow the appeal.

As contrasted to Kular, my client was financially supporting his wife and child in India and was under the apprehension that once he arrived in Canada he would be able to sponsor them. In addition to the "Ribic factors", I argued that the Member should not consider that, if she allowed the appeal, that the appellant would be rewarded for the misrepresentation and his deceit – rather he would still be separated from his partner and child and would face a long road toward reunited with them in Canada. I also argued that the child's best interests was not the removal of his father – as his father was able to provide a better standard of living sending remittances from Canada (the child was at a private school, living at a rented residence in the city).

In any event, the matter was reserved and we are awaiting a decision. My sense is that we will be seeing more inadmissibility hearings, removal orders and appeals to the IAD requesting the exercise of their equitable jurisdiction.

An interesting development is this case: Laroche (see http://decisions.fct-cf.gc.ca/en/2008/2008fc528/2008fc528.html) where a Canadian citizenship was revoked because he obtained permanent residence by way of a marriage of convenience.

There are long term consequences of misrepresentation, and the reach of CIC/CBSA does not end when citizenship has been granted.