CBA National Citizenship and Immigration Law CLE Conference - May 16-17, 2008 Niagara-on-the-Lake, Ontario
May 15, 2008 <Enroute to Toronto>
I've just taken an opportunity to review some of the materials for the CBA Conference.
Between watching the movie "Charlie Wilson's War" (which inexplicably shut down a number of times during the flight) and flipping through some of the papers I printed off, I came across a paper by Shoshana T. Green "Consequences of a Misrepresentation Allegation".
Ms. Green basically confirms my experience that a dramatic trend has surfaced indicating both CIC and CBSA are pursuing permanent residents on grounds of inadmissibility arising from misrepresentation.
Ms. Green notes several scenarios that result in investigation, a finding of inadmissibility and possible appeal to the Immigration Appeal Division.
The first is the 'short marriage' which leads CIC to believe that the permanent resident originally arrived in Canada on the basis of a fraudulent marriage (aka 'marriage of convenience'). Once the now permanent resident divorces the partner of convenience (what Ms. Green calls a 'short marriage') and returns to their country of nationality for marriage and sponsorship - CIC attempts to move against the permanent resident for misrepresentation.
Another scenario that CIC/CBSA follows up on is the 'hidden marriage' - whereby a foreign national becomes a permanent resident (as a skilled worker or as a dependant under the family class) when in fact it was never disclosed to CIC that the foreign national was in fact married (and would, therefore been ineligible to enter Canada as a dependant, and member of the family class).
Green notes (which again dovetails with my own experience) that while CIC/CBSA investigates, the sponsorship of the second spouse is usually put on hold, for a period of 2 years or more.
Green recommends that counsel immediately request information pursuant to an Access to Information request. After that, the client should be thoroughly prepared to discuss the "subject matter of the investigation".
Green correctly points out that the responsible immigration officer has discretion not to refer the matter to an admissibility hearing (i.e. has the discretion not to write the s.44 report). This decision is based on a number of factors that can be found in the relevant Enforcement Manual.
In my practice, I have on one particular occasion seen an immigration officer decide to exercise her discretion not to refer the matter forward. In this case there was clear misrepresentation (the client has deliberately falsified documents indicating that an accompanying dependant was a biological child, when in fact the child had been informally taken in adoption some twenty years previously). The officer was kind enough not to proceed down the admissibility route. There were clear H&C's on the application, and the experience suggests that it is always worth an opportunity to canvass the possibility with the responsible immigration officer.
However, if the officer writes the report /refers the matter to the Immigration Division of the Immigration and Refugee Board, one of two things may happen:
Either the Division will find that there is insufficient evidence to support the allegation of inadmissibility, or the individual will be found inadmissible and the matter can be appealed de novo to the Immigration Appeal Division. The Immigration Division does not have discretion and cannot consider any equitable issues.
In my experience thus far, allegations of inadmissibility are usually well founded and, again, in my practice are usually conceded at the Immigration Division given that the Immigration Appeal Division can consider equitable grounds to rule in favour of the client.
At the appeal stage, the Immigration Appeal Division can do one of the following:
1. Allow the appeal;
2. Stay the removal order (for a period of time, criminality usually eliciting a stay of 3 years at which point the IAD will allow the appeal assuming any conditions imposed are met); and
3. Dismiss the appeal.
Given the above trends, it is probably good advice that any permanent resident that has been made aware that he or she is under investigation for possible inadmissibility should contact experienced immigration counsel immediately.