Sponsorship fraud will be a recurring issue for many immigration clients and immigration practitioners, notwithstanding Jason Kenney's recent efforts to curtail it, because marriage is often the fastest way to come to this country.
Types of Immigration Fraud
Sponsorship fraud occurs in the following ways:
- The sponsor and applicant are complicit in the fraud - IE both parties knowingly take part in pulling the wool over the eyes of the authorities;
- The sponsor is a dupe; and
- The marriage broke down for 'legitimate' reasons, but either the sponsor or immigration feels that the applicant committed marriage fraud (this is obviously not true marriage fraud).
Investigation
Investigation into the marriage fraud is sparked (unfortunately infrequently) by a complaint by the aggrieved sponsor, a 'poison pen' letter (typically by a 'friend' or relative of the parties) or a request for investigation by an overseas visa office (usually when the parties remarry, typically within a short period of time after their divorce).
Citizenship & Immigration investigates and looks for information, such as inconsistent information in a subsequent sponsorship application, or the statement of claim for divorce (which frequently contains prejudicial and usually inaccurate information as to the separation date). If they decide to proceed with an investigation, CIC will convoke an interview. In my experience, the majority of evidence for removal proceedings is furnished by the client when he or she shows up at the interview.
Important
It should be noted that, in some cases, there is no requirement or legal authority for an officer to question a sponsor or sponsored person in respect of a marriage investigation. If you are in receipt of correspondence requesting attendance at an interview, I would strongly suggest that you retain experienced immigration counsel immediately.
The Section 44(1) Report
If the Officer believes that there are reasonable grounds to believe that there was misrepresentation, he or she may write a s.44 report (note that the officer retains discretion not to write a report even if he or she believes that reasonable grounds exist for the writing of the report). If a manager concurs, the report is 'referred' to the Immigration Division for an Admissibility Hearing.
The Admissibility Hearing
The Admissibility Hearing is an adversarial proceeding. Again, I would strongly suggest retaining counsel if you find yourself in this unenviable situation. Both parties can call their own witnesses and cross-examine adverse witnesses.
In some cases, the party will concede the allegations given that they retain an appeal to the Immigration Appeal Division. Where the allegations arise from a marriage that took place years ago, there may be a Charter argument as to abuse of process given the prejudice that the party may face in reconstructing dates and events.
If the allegations are contested, after the hearing, the Immigration Division will either issue a removal order (if they believe the report is well-founded) or they will set aside the report and terminate removal proceedings.
If the report is found to be well-founded, the client (who is, after all, a Permanent Resident) retains the right of appeal to the Immigration Appeal Division.
The Immigration Appeal Division
The IAD can consider humanitarian and compassionate grounds in granting relief. The IAD will have regard to all the circumstances, including: the nature and extent of the misrepresentation, family support and dislocation to that family in the event of removal, establishment and time in Canada, hardship upon return and the best interests of any child affected by the decision.
Raj Sharma JD LLM
Partner
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