Life's but a walking shadow, a poor player
That struts and frets his hour upon the stage
And then is heard no more: it is a tale
Told by an idiot, full of sound and fury,
Signifying nothing.
Shakespeare, Macbeth, Act 5, Scene V
This is one of my favourite lines from Shakespeare and applicable to a lot in modern life, particularly the bloviation of politicians.
I have discussed the scourge of marriage fraud in previous articles. Marriage to a Canadian citizen or Permanent Resident is one of the easiest and fastest ways to get permanent residence in Canada. There is no income requirement on the sponsor; there is no requirement that the applicant pass a language exam or show any particular skill or funds to assist in settling in this country. That meant that people were deceiving their sponsors, or sponsors were complicit and taking money to facilitate fraud on Canada's immigration system. Where the sponsor was an innocent, fraud led to tragic consequences. In at least one case, a sponsor committed suicide after learning that he was used by his wife. Marriage fraud is not ad hoc or simply one off in many instances.
Our government has had to expend considerable resources combating marriage fraud in a cat-and-mouse game in India, China and other countries. Jason Kenney responded by introducing "conditional" permanent residency requiring sponsored individuals to live with their sponsor for 2 years after coming to Canada with exceptions.
However, these new rules obviously require enforcement.
Very few have been charged. I have discussed this myself on a number of occasions.
The then Minister of Immigration, Jason Kenney, appeared to listen to the concerns. Here's just some of the articles discussing the so-called crackdown on marriage fraud: Download 2015_01_20_15_39_14 articles
Victims of marriage fraud may have taken heart from these public statements, that the activist and transformational Minister of Citizenship and Immigration, the indefatigable and seemingly inexhaustible, Jason Kenney had heard their cries for succour.
I too, thought that the cavalry had arrived.
Victims of marriage fraud consult with me on a regular basis regarding their efforts to have their voices heard. I have helped dozens of individuals submit detailed complaints along with evidence establishing that the were the victims of marriage fraud; that they were used by their spouses simply to come to Canada. I was dismayed to see that very little was being taken on seemingly clear cases of marriage fraud. The reality, confirmed by affidavits from the CIC and CBSA officers, is that marriage fraud is the lowest priority for investigation and enforcement.
I cast around seeking a solution or another avenue for my client's to be heard. I contemplated action at the Federal Court, but hesitated, given a number of considerations including foundational principles of administrative law like standing and justiciability.
I was approached in the fall of 2013 by another victim of marriage fraud and after great thought filed an application for judicial review and for mandamus despite some misgivings. I knew that the Federal Court would be loathe to interfere in the investigation of any particular tool. That being said, my client evoked a great deal of sympathy. He is an unsophisticated individual and was taken advantage of. The application was perfected; I was pleasantly surprised to see leave being granted by Justice Mactavish. Interestingly, rather than taken action and write a section 44 report (which would have taken less effort) the government chose to contest the judicial review application.
The plot appeared to thicken after leave was granted. A further affidavit was filed by the Department of Justice, as well as the Certified Tribunal Record, indicating that the investigation was closed merely days after leave was granted. I decided to examine the responsible officer and filed a further memorandum of argument alleging bad faith (not a step to be taken lightly, since we are required to have a working relationship with this particular officer, and his colleagues at the CBSA and CIC).
The mandamus was heard last week; Justice Manson dismissed the application but certified a question. In his decision, Justice Manson dismissed my request for an alternate remedy (paragraph 19), found that it was "regrettable the Applicant appears to have fallen victim to a fraudulent marriage scheme" but found that this was not a "justiciable matter", as the question of "whether and how to investigate the complaint is not a decision, determination, order, measure or question arising from the IRPA..." He also disagreed with the allegations of bad faith, but did not elaborate. Justice Manson (justifiably) finds that "[P]rioritization of files is a necessary strategy employed by the CBSA to help manage the consistently significant workload of its officers".
The fact that Jason Kenney trumpeted his government's s0-called crackdown of marriage fraud also didn't persuade the Court that relief was warranted. In the Court's view "Given the above mentioned policy considerations and resource constraints, no matter what the government has stated about the seriousness of marriage fraud in public appearances, there is no a duty [sic] for the CBSA to act in any particular files involving it."
So there it is. The political and electioneering aspect of the Minister's statements were exactly that - giving rise to no greater responsibility by his officers to act on his puffery.
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