It was fun sitting down and having a conversation with my colleagues, immigration lawyers Steven Meurrens and Peter Edelmann in the beautiful city of Vancouver this summer. The main topic of discussion, now on their podcast, "Borderlines", was marriage fraud. This is a particularly pernicious problem in the Punjabi community; arranged marriages allow for both marriage fraud where both parties are complicit but also allow for one party to take advantage over a trusting spouse and sponsor.
Sometimes sponsors move on; sometimes they seek legal redress for being taken advantage off. I've been approached many times by a sponsor; I'm very aware that narratives change after the breakdown of a relationship. It is possible that "marriage fraud" may exist only in the minds of some sponsors as a result. However, there are many other occasions when the marriage fraud is clear. For many years victims of marriage fraud had no recourse, no right to even know the status of any investigation or outcome of same against a spouse or partner that simply used them to come to Canada.
A sponsor allegedly committed suicide here in the lower mainland; his community, and Canadians in general were incensed. Jason Kenney entered the fray with alacrity, indignation, sound and fury. There were legislative changes requiring cohabitation (on the chopping block for this new government). Still, little if any resources were provided to CBSA and CIC front lines. As far as I know our office was the first (perhaps the only) to try and force CIC and CBSA to give effect to the public pronouncements of Jason Kenney's supposed crackdown.
I was approached by a simple, hard working Albertan with his own story of betrayal; after demand and documentation of the fraud, I sought to force CIC/CBSA to take action by filing an application for mandamus at the Federal Court. This application ultimately ended up at the Federal Court of Appeal. The good news is that there is a ray of light for sponsors; there is some (little, admittedly) oversight of an officer's discretion whether or not to take action on an allegation of marriage fraud.
Transcript of our interview follows:
Steven Meurrens: Hey everyone, Steve Meurrens here. One thing that I've been asked a few times is to post a more substantive introduction to explain what we will be discussing during this podcast, so here goes. Our guest this week is Raj Sharma, a Calgary immigration lawyer who practices in just about every area of immigration law. As far as I know, Raj is the only immigration lawyer or lawyer period to have sued the government of Canada on behalf of a Canadian citizen who was trying to compel the Canada Border Services agency to investigate a marriage fraud. That's our topic this week.
Canadian immigration law provides that Canadian citizens and permanent residents can sponsor spouses or common law partners to immigrate to Canada. One of the requirements is that the marriage be genuine and that it not have been entered into for the primary purpose of immigration. During this podcast, we discuss many aspects of this bona fide marriage requirement, including changes that the previous conservative government of Canada introduced to combat marriage fraud. We also discuss Raj's recent case, Zaghbib v. Canada, public safety and emergency preparedness. This case went all the way to the Federal Court of Appeal. This is the case that I was talking about before, where Raj sued the Canadian government to try to force the Canada Border Services Agency to conclude an investigation into marriage fraud. The neutral citation for that case is 2016 FCA 182. Neutral citation for those who aren't lawyers is a way of looking up court cases.
After discussing marriage fraud, we switch gears and talk about the Minister of Public Safety and Emergency Preparedness, the current one, Ralph Goodale, has said that he may be open to changing how Canada detains people for immigration purposes. We talk about what those changes may be. Once again, my name is Steven Meurrens, I can be reached at [email protected] Peter Edelmann is the co-creator of this podcast. He can be reached at [email protected]; Raj can be reached at [email protected]
Interviewer: ... status, the plan is designed to target those who dupe Canadians into marrying them as a ticket to get into the country, but could people who enter a marriage legitimately get caught in the net? Will the new rules be enough to protect Canadians from marriage fraud? Joining me now is the Minister of Citizenship and Immigration, Jason Kenny. Thanks so much for joining us today.
Jason Kenney: Good to be here.
Interviewer: Appreciate your time. Now, how important is it that these new regulations on marriage fraud are put in place?
Jason Kenney: Very important. Too many Canadians are victimized by foreigners who they marry, who arrive in Canada, get stamped in as permanent residents, and then take off right away. There was a case that CBC just ran in Vancouver about an 82-year-old man who married a lady from Russia and the day she got her permanent residency she took off. Today I met a lady who was originally from India, a paraplegic, with cerebral palsy. Her husband came into Canada, he didn't even contact her. The new two-year conditional rule that we promised in the campaign will help us to weed out a lot of the bad apples that come in through fraudulent immigration marriages, and to shut down a lot of the commercial marriage transactions where Canadians frankly take a payment from someone from abroad in order to give them a fake spousal sponsorship application.
Interviewer: How big of a problem is that?
Jason Kenney: It's very big.
Steven: Hello and welcome to the Borderlines Podcast, the podcast for the discussion of immigration and citizenship law and policy. I'm Steven Meurrens.
Peter Edelmann: I'm Peter Edelmann. We're here with Raj Sharma, one of our colleagues from Calgary. We've known Raj, both Steve and I have known Raj for several years, doing a lot of interesting work in Calgary. Hoping to talk today a little bit about marriage fraud and in particular a case that Raj recently took up through the Federal Court of Appeal on that issue. I think there are a number of issues we'd like to talk about. How are things in Calgary these days, given the shift in the economy and the price of oil?
Raj Sharma: Things are good, Peter. Thanks for having me on. Vancouver's always good to come out to, I've got my little place out here. Some people have cottages or cabins, so I've got my little space out here and wish I could be here more, because my wife and I truly love the city. Calgary's fantastic, well, I guess it's a relative term. The oil and gas has affected a lot of people. There's a lot of opportunities, I think, as well, so we're busier than we've ever been. I don't think economic downturns necessarily affect immigration lawyers, as least those immigration lawyers that are not one-trick ponies. If you can do litigation and if you can do something other than a work permit, I think there's still lots of work in Calgary.
Steven: Marriage fraud, in the immigration context. I think a lot of people would be surprised to know how big an issue it is, in immigration, and that it does exist. Can you give some examples of ... can you provide a brief overview of what immigration officials are looking for when they are assessing the spousal sponsorship or common law partnership applications?
Raj Sharma: We can just do an overview. Marriage fraud exists because there's this massive advantage to be gained. When you have marriage fraud, you have individuals that want to come to Canada, but don't qualify to come to Canada, and one of the easiest ways of coming to Canada was simply marrying someone and being sponsored to Canada. Sponsoring someone, there's no income requirement to sponsoring someone, there's no medical inadmissibility issues for example. There's no language requirement or education requirement, so marriage fraud has been with us for a long, long time.
Steven: Just to be clear, it does exist. I know some people think the concept is completely made up or was made up by the previous government. I remember less than a year into practicing, a facilitator of marriage fraud came to my office saying that he was charging foreign nationals between $40,000 to $60,000 to find a Canadian spouse and arranged a marriage of which the Canadian sponsor would get a cut. We showed that person out of the office, but it was my first introduction to the fact that this actually is a real thing.
Raj: It's a real thing and it's actually more pronounced, for example, in my community, in the Punjabi community, because what you have is you have arranged marriages. You don't need to show the origin and development of a relationship, but you need to show someone's flight to India, you need to show someone's first meeting and the marriage and then a flight back out, and then a sponsorship. Marriage fraud has been with us, it's real, it's thousands, probably, of cases, it's especially prevalent in certain communities, including my own, because arranged marriage lends itself very well to marriage fraud.
Steven: When the government is assessing a marriage, do you want to provide a brief overview as to what they're looking for? For example, let's say if somebody originally got into a marriage because they intended to immigrate to Canada, it's clear from documentation that, say, cash was exchanged for the marriage to facilitate immigration, but now over time, that marriage has evolved into a loving relationship, is that person safe or will the marriage fraud provisions in the Immigration and Refugee Protection Regulations catch them?
Raj: That intent in terms of, there's of course the section four regulation in the IRPR, Immigration and Refugee Protection Regulations, so there's a two-pronged sort of test. One is, is the relationship genuine, and that is not locked in, so to speak, or doesn't crystallize. The intent provision of that regulation does in fact crystallize and is locked in. I've had that weird situation, because you could have a genuine relationship, but you could still have a marriage that is not considered, or is excluded, from sponsorship, based on the intent of the applicant.
Peter: I think it's important to point out to the listener the change that happened with the regulation. It used to be that [crosstalk 00:09:00] to demonstrate that there was a marriage fraud or that you were ineligible on that basis, if the marriage was not genuine and had been entered into for improper purposes, and what happens, and I don't know the exact date, but relatively-
Raj: 2010.
Peter: ... In the last few years, I guess it's been longer than I thought, six years ago, that the "and" was changed to an "or," and that's where we have the effect that Raj is talking about, and that Steve is talking about where you have a finding that a marriage was entered into for an improper purpose, was entered into primarily for the purpose of immigration, and then even if the person then goes on ... they go on to have four kids together, they go on to live together, presumably you can never overcome that initial reality that the marriage was entered into primarily for the purpose of immigration, or that there's been that finding. You can't un-do that finding. That's one of the big problems that we have with the Immigration Appeal Division, finding that it has no jurisdiction to consider these cases, because they've already been decided. It's difficult to argue against that with the disjunctive test. I don't know if you have any thoughts on that, or if that's ... that change has had some significant impact. I don't know if the two of you have noticed it at all.
Raj: Yeah, it's been the reality for the last six years. I think there's considerable overlap between whether a marriage is genuine, because let's say, especially with arranged marriages, there's always some aspect that the immigration status of the sponsor plays in that marriage. Again, when you're looking at arranged marriages, just go and open up an Indo-Canadian newspaper, and start looking at the matrimonials there, it'll list the height and it'll list the education and the complexion, and whether the person's a doctor. A doctor is a big deal in my community. Obviously immigration status in Canada plays a role in arranged marriages, particularly. It just can't be primarily. These are all interesting issues, but you got to get it right, at least at the ID, because there's very little hope for reprieve if the Immigration Appeal Division finds that the marriage is precluded.
Steven: That's a whole separate issue, is that if you do appeal and go to the Immigration Appeal Division, and lose, then the legal principle of res judicata can almost prohibitively prevent the person from reapplying in the future for a spousal sponsorship application unless there's been a decisive change. Just touching back on marriage fraud before we get to a further discussion on some of those, I would say, the three main conservative changes to Canada's family class regime. Raj, you happen to have what I think might be the only case where a Canadian sponsor who was the victim of marriage fraud took the Canada Border Services Agency to court for not ... well, why don't you explain it more. I can't recall if it was not completing an investigation or not taking concrete steps to remove someone where the Canadian sponsor came forward and said that he had been the victim of marriage fraud.
Raj: Right, so we all go to the federal court, all three of us. We all go to the federal court, and we use that court to hold immigration officers' feet to the fire, so to speak. Most of the time, when we go to the federal court, we use the remedy called certiorari, which is basically to set aside the decision and have it remitted back for re-determination by someone. There's another remedy that's called mandamus, and mandamus is a [inaudible 00:12:53] writ, mandamus is something that the courts can use to compel the executive to comply with the will of the legislature.
Basically, it's a democratic accountability tool. Just imagine, we have a bill, the bill says "The CBSA, the police, or whatever agency has to do X," and let's say that agency says, "Well, nah. I don't feel like doing X today." Mandamus is done, and we've used mandamus to compel, for example, years-long processing on citizenship applications. We've used mandamus on, there's an application for permanent residency and there's some sort of nonsense excuse as to why it's not being processed. Mandamus is a very, very flexible tool, and helpful tool in immigration. How else do you get overview or redress? The CBSA, as we all know, doesn't have a lot of internal review mechanisms. There's a lot of darkness and lack of transparency. We go to the federal courts for these various things.
When these victims of marriage fraud came to me, I tried to wonder, "What can I do for them?" All they can do, or all we can do, is draft up a fax to the CBSA Inland Enforcement Manager, send it off with a hope and a prayer that some officer will find it in his or her schedule to take a look at it. It's particularly egregious. Look, whenever a relationships falls apart, there's going to be two competing narratives. We all know the cases where, "I sponsored this lady or this guy to Canada, we've been together for five or six years, and the relationship's fallen apart, and I think he used me, or she used me for immigration, and now I want to get he/she deported."
It starts to be that these other cases are so egregious. Mr. Zaghbib's wife left him at the airport. They never spent more than four hours together in Canada. He had come to me, and I was contemplating using mandamus on these sort of marriage fraud cases, because I was seeing this specifically and particularly in my own community. Of course there was a gentleman here in Vancouver, in the lower mainland, who committed suicide, allegedly, because of being the victim of marriage fraud.
I thought, "Why not, I'll send a demand, they don't respond to me, why don't I use mandamus?" File an application for mandamus. Every time I did that, and I perfected it, the application would simply be dismissed. Lo and behold, Tarek Zaghbib, we were trying out mandamus, we were trying out different arguments, trying to figure out the meet this seven-part precondition test of mandamus, and lo and behold, we get leave on Mr. Zaghbib's case. The next step, what we saw was within 48 hours after that leave decision, the CBSA closes the investigation.
Obviously, I think any litigator, any lawyer, would be outraged at the fact that, okay, you are going to prevent or stymie the jurisdiction of the federal court simply by closing an investigation instead of doing your job.
Steven: When you say close the investigation, you don't mean that they decided to commence removal proceedings or to follow through with a possible referral to the Immigration and Refugee Board? They said, "This investigation's over, we're not proceeding any further."
Raj: Correct.
Steven: Once you got the mandamus order from court.
Raj: Once I got the leave, yeah.
Steven: Once you got leave, yeah.
Raj: At that point, I was like, "Okay, we have an affidavit now from the CBSA manager," and I then decided to cross-examine the manager. Of course, reached out to Peter because I'm not aware of anyone else in Calgary that's actually cross-examined the Inland Enforcement Manager. I reached out to Peter, who has done this before, and ended up examining him in my courtroom.
Peter: When were the notes? They closed it with some notes that said that there wasn't a case, etc. Did those get written after? After leave or were they already on the file before?
Raj: It was terrible. What had happened is, once we got leave obviously we got the CTR, the Certified Tribunal Records. The Certified Tribunal Record comes in. Certified Tribunal Record indicates that my guy, my client, went to CBSA right away to report this fraud. His employer assisted him in communicating with the authorities. A file was actually opened by the CBSA within days of him reporting being a victim of marriage fraud. A Calgary police service officer attended at my client's home, talked to him, and a CPS officer contacted CBSA and said, "This is my name. My name is Constable Yanko. This is my badge number. This is my telephone number. This is my cell phone number. This is my email address, and these are my shifts. I need to talk to you about Mr. Zaghbib, because I believe that he is a victim of a marriage conveniencing scheme."
Those are the words that Constable Yanko used. A file is opened, and it was open for more than, I think, two years. As soon as we file, we go to federal court, what we saw from the CTR is that there was a dated letter, a signed, dated letter of two days after leave, and it indicated that the manager decided to close the file. Obviously, the effect of that and why that's significant is that if I asked them for a decision, and they decided it, then my mandamus application is moved. At that point, that's when we cross-examined the manager, and now, this should be a warning to both of you guys. Experience is a great teacher.
I'm blogging about this, and the manager comes in to be examined, and says right before the examination, "Oh, sorry, I need to amend my affidavit." The file's actually closed before leave, and he doesn't know how the letter was dated after leave, and that was an error. I'd asked him later on, he's like, "Yeah," he learned of it when you'd [inaudible 00:19:24] my blog. Probably not a great idea to put that much information on the blog, particularly before a cross-examination. I don't know how you could actually fix that type of ... that answer doesn't get any better because that actually came up at the Federal Court of Appeal, and they said, "Well, what was his explanation as to the discrepancy in date?" Then the DOJ council in open court, "Well, there is no explanation." I don't know if I actually harmed anything there, but still, very, very interesting sort of case.
Peter: I recently had a Border Services officer under cross-examination, in a criminal matter, give an explanation as to why he didn't know about the contents of a memo with a signature under his name. It was because there's a practice, apparently, at that border office of other people just signing for each other.
Raj: How convenient.
Peter: Somebody else signed under his name on this. I was like, "Yeah, that doesn't make things better." The Federal Court dismissed the appeal, but they did certify a question. It went up to the Federal Court of Appeal, and ultimately, both courts said, "We're not going to touch this."
Raj: No, for different reasons.
Peter: You want to just briefly talk about why is it that the courts don't want to go there, in terms of saying, of telling CBSA that they have to do something about this?
Raj: Look, the courts are inherently reluctant when it comes to mandamus. There's a reason for that. The courts are okay with saying, "Your decision is wrong, your decision cannot be justified. Your decision is going to be set aside, and someone else is going to decide for this." Mandamus is, you're asking the court for a different supervisory function. Mandamus means you're going to say to them, and it's getting awfully close to the court telling an administrative agency how to do their job. That is not really the function of a court, given our sort of rule of law system, our separation of powers system.
There's this concept called justiciability, and I never want to really talk about this word because I've heard it far too often, but justiciability means that this is not a function for the courts. This is a function for the legislators, this is a function for someone else. The courts shouldn't be sticking their nose here. Justice Manson at the federal courts says it's not justiciable, but he doesn't justify why it's not justiciable. If this is not justiciable, which is the federal court having the jurisdiction to tell someone to do their duty or not do their duty, then I don't know what is. Justiciability again, this is a concept that has been expanded over the last few decades. Most things are actually justiciable.
The other thing that Justice Manson pointed out, and here was the interesting point, mandamus and certiorari are typically available only by the person who is directly affected by the administrative action. One argument that the DOJ was using over and over again was that if there is a public duty, it's not owed to Mr. Zaghbib, who was a third party to all of this. It's owed to the Attorney General, and they named a couple of police cases to that effect as well.
Oddly enough at the federal court, and I tried at the federal court, to get Justice Manson to maybe craft a different type of remedy, because I understood the limitations of mandamus, and I just needed some sort of recourse or redress for my client. The DOJ proposed a certified question. I did not the certified question. The certified question was, can a third party compel? Can a sponsor compel CBSA to investigate an individual for marriage fraud?
Steven: What was the answer?
Raj: Well, it was certified, and then it goes to the Federal Court of Appeal, and again, I reached out to Peter, and the panel was Justice [inaudible 00:23:41], and very interesting experience. What I was really interested in, and concerned about, was that I didn't want mandamus to be closed off as a sort of ... I didn't want to limit the reach of mandamus, and that's what I saw Justice Manson's decision as doing. I was very concerned about that, and I wanted mandamus to remain as a flexible tool for other lawyers in other circumstances.
I was happy that the Federal Court of Appeal said, "Well, Justice Manson misunderstood justiciability, that the jurisdiction of the court doesn't arise, for example, from section 72 of the act, but it arises from section 18.1 of the Federal Courts Act." That was important. The Federal Court of Appeal also pointed out that a sponsor was affected, for example, because a sponsor was a party to this, or a sponsorship agreement in undertaking, that the duty also was there, or relied from the CBSA to the sponsor, for example.
What they said, in essence, is they took the easy way out, which is, they said, "Well, it's moot. You asked for a decision, and the decision was made." By the way, in the decision, I was gratified to see that they shared my concerns as to the timing of closing this investigation on or near, or after, leave was granted. They just said, "You asked for a decision, decision was made, we share your concerns, but now mandamus doesn't lie here, you've got to go for certiori." On the main, I'm happy with the Court of Appeal decision, I'm happy that mandamus is still with us, and I'm happy that it remains a tool for democratic accountability when it comes to the CBSA, because frankly, there is no other review mechanism.
Steven: If somebody thinks that they have been the victim of marriage fraud, and they've listened to this and they're thinking, "Okay, well, if I want to compel CBSA to investigate the marriage, I'm all of a sudden going to have to hear about mandamus and justiciability." What would you tell someone who thinks that they've been the victim of marriage fraud, and they go to you and say, "Mr. Sharma, is there anything that we can do to, I've been the victim of marriage fraud, I'm on the hook for this undertaking, is there anything that we can do?"
Raj: Well, I've dissuaded individuals that have come to me, and I've tried my best to dissuade them. It's an issue of justice. It becomes an issue of principle, so it's hard to dissuade individuals that had an individual, nameless of course, and I asked, I asked them frankly. I'm like, "How much money do you make?" Then the person's like, "I make $13 an hour." I'm like, "You can't afford this, because this is the novel area and I don't think I can get you justice." The response was, "Mr. Sharma, I will eat Kraft Dinner every day to pay you whatever, a couple hundred bucks a month."
Your heart goes out to them. I think we all became lawyers not necessarily for the money. I think we became lawyers to help people, so it's very, very difficult when you've got an injustice, and you can't craft an appropriate remedy. Zaghbib is there. It is now, of course, possible. I would do it only in the clearest cases. I would suggest it only in the clearest cases, where there's clear evidence of no cohabitation, I think that even if there's cohabitation for a month or two, I don't think mandamus ... I don't know what the workload is for CBSA officers, but they push this pretty hard.
The ironic or the odd thing about this is that Jason Kenney was going up and down the country, talking about marriage fraud, and he was talking about marriage fraud because he knows that that plays well to certain communities. Certain voter bank communities, I should say. He made it out to be that this is an absolute priority. He made it out to be that CPS is cracking down on marriage fraud, and the reality turns out to be completely different.
The reality turns out to be ... again, the manager of the CBSA, the Inland Enforcement Manager, has my sympathies. He's got the same number of officers. He's got Jason Kenny saying, "Well, there's got to be a thousand cessate applications per year." He's got Jason Kenney saying, "Well, marriage fraud is a priority," but he doesn't have any more officers. He doesn't have any more resources. The reality, unfortunately, is harsh. What I would say is, prevention is the best cure. Before you marry someone and sponsor them to Canada, I would suggest that you really get to know them.
Peter: We have these discussion before you were bringing this forward, and from criminal law perspective, I've always been a bit skeptical of the direction that this was going in. I wanted to talk to you a little bit about the broader policy implications of what you were hoping to see happen, in terms of being able to force CBSA officers to investigate certain things, or to consider certain investigations. To give you an example, my office is in the pot block, we're next to Mark Emery's café.
Every day, there are hundreds of transactions that happen in the immediate vicinity. The Vancouver Police doesn't do anything about it. Doesn't investigate. There's a reason for that, and there's a general policy with respect to marijuana in this city, and the approach that's taken, but if I could litigate every single one of those, and say, "You're not investigating, you're not investigating, you're not investigating," the police would turn around and say, "Well, we've chosen to investigate other things. We focus our energy on heroin and cocaine, and domestic assault and whatever the situation might be."
I guess my question is, in the immigration context, I can think of all kinds of contexts that don't get investigated, just to take the example of when George Bush visited here, and there was a lot of uproar over whether or not he was a war criminal, and whether or not he should be found inadmissible. Do those things all become, then ... do I go and get mandamus from the federal court, and say the Minister hasn't considered whether George Bush is a war criminal, and before he's allowed to come and talk here, should Donald Trump be allowed in? There's allegations of fraud overseas, or whatever the situation might be. That could be on both sides of the spectrum. We saw with the British MP the same situation. The left-wing, I forget his name, offhand.
Steven: George Galloway.
Peter: George Galloway. I'm just wondering, from a policy perspective, what is it that you are hoping to achieve, or what is it that you would see in terms of people being able to push CBSA into investigations, especially when you're doing it from, and what you framed it as in part, on your client's part, was that he had a public interest in this. Which means that anybody, that I would have a public interest in a war criminal not visiting.
Raj: Right. I think our rule of law system needs the public interest litigants. Public interest standing, and so when you look at the preconditions of mandamus and you wonder why are these preconditions here, i.e., the duty has to be owed to the applicant, and it's got to be a public legal duty. Basically, what that is is that codification or ossification of standing. Standing, as an administrative law principal, was very rigid and sclerotic, many, many years ago, many, many decades ago. Standing has evolved and it's expanding so that many people can bring the types of actions that you kind of alluded to.
Mandamus of course was not. They codified standing, and so mandamus is this sort of frozen cave man in terms of protective writs. On the other hand, everything else outside of it has been expanding. Standing has expanded, and I guess my answer to your question is this, is that, yes, in our rule of law system, we can go to the courts and the courts will determine. I am not a fan, we're all lawyers, or we shouldn't be fans of fallacies. The slippery slope argument was something that the DOJ raised as well. Yes, we can go to the courts in these sort of ... if you fit the general criteria, you can go to the courts. The court will determine whether you have standing and the correct interest and whether the court's intervention is required or not.
In this particular case, I'm not asking and I did not ask, for the CBSA to do a particular specific thing. What I asked them simply to do was to turn their minds in terms of investigation, i.e., opening a file is not an investigation. What I asked them to do, and we went through it, and for example, it's really helpful because during that cross-examination, we saw that the manager closed this file without regard to INF five, without regard to the manual that actually tells a CBSA officer when and when not to write a report.
What that threshold is, for writing that report, because this manager thought that the threshold was on a balance of probabilities. He didn't understand that writing a report was based on the fact that if he had reasonable grounds, or he has reasons to believe. These are useful exercises to ensure that there's transparency. Sunlight is always the best disinfectant. In this case, I wasn't asking, I didn't ask them to write a report, I didn't say I want mandamus to compel this manager to write a section 44 report. I said, "Given these facts, there is an obligation on the CBSA to investigate in these specific circumstances." Of course CBSA, of course the police can prioritize their resources.
Steven: I think also, something that would distinguish, at least, a sponsor trying to get the Canada Border Services Agency to enforce the act, as opposed to, say, a person who's just upset that the Amsterdam Café exists, is the ongoing obligations on the sponsor. That sponsor has an undertaking in place, that depending in a marriage case is three years. During that time if the foreign national, who was in the fake marriage, goes on social assistance, that sponsor has to pay the provincial government back, as well as during the period of that undertaking, they can't sponsor anyone else.
I'm not sure where the line in general should be drawn in public interest standing, but I think in the immediate spousal sponsorship, possible victim of marriage fraud case-
Raj: For spousal sponsorship, we fit that narrow criteria for mandamus. This is not a busybody neighbor saying, "Well, I've got this lady with an accent in my street and I think she came here on a fake marriage."
Peter: Although by the time you got to ... sorry.
Steven: Oh no, go ahead.
Peter: Just quickly, by the time you got to the court, my understanding was the sponsorship obligation was finished.
Raj: That's the same thing, the CBSA couldn't hang their hat on their own laziness and run down the clock just to prevent me from a regress of the court. It doesn't lie well in their mouth, but they tried that argument as well.
Peter: I did want to raise just one quick example that we were recently approached by a company that says, "There's a company overseas stealing our IP. Guy's here, he's a business visitor. Can you get him thrown out of the country?" If you make a case for this IP theft, for example, can you force CBSA to then investigate? That's where-
Steven: This is in the foreign worker context, also, where companies are aware of fake LMIAs and everything.
Peter: There's a business interest in forcing CBSA to investigate certain people in a lot of contexts.
Raj: Now you're going to make me say the word that I didn't want to say, I don't think that would be justiciable.
Steven: I think this is that spectrum of where someone's interests lies.
Peter: Justice Manson will be proud.
Steven: Changing gears from the immediate case to the three reforms or changes to marriage and common law applications that the previous government made, the first we already talked about, was going from the conjunctive to the disjunctive test of whether an application is genuine, and whether a marriage is genuine, and whether its primary purpose was immigration. The second and most controversial change was the decision to create conditional permanent residence, which is that couples that have been married for less than three years or cohabiting for less than three years or two years at the time of application, the foreign national when they immigrate will be a conditional permanent residence for two years after they immigrate, subject to certain exceptions, like the existence of children during those two years they have to cohabit.
The other change was the five-year sponsorship bars of a permanent resident immigrates because they were sponsored by someone else, they can't apply to sponsor someone, a new spouse or common law partner for five years after they become a permanent resident. I think the Ministers committed to, through Prime Minister Trudeau's mandate letter to the Minister, to ending conditional permanent residency. There hasn't been any discussion to my knowledge about the sponsorship bar or the disjunctive test. Do either of you have any comments or thoughts on making changes to either of those Jason Kenney-era reforms?
Raj: I think the five-year ban on another sponsorship, and that was done to stop these marriage fraud rings.
Peter: Revolving doors is the term I use.
Raj: What I've seen, and I was involved in what appears to be now heading towards a criminal investigation, but a number of individuals were looking at 20 plus sponsorships between all of them. They sponsored people, those people then went and sponsored other people, and so you've got this logarithmic, exponential type of occurrence. The five-year ban put a stop to that. I think the two-year conditional PR, on one side, I welcomed it, because I did see a lot of immigration fraud, particularly in my community, and I met with a lot of devastated sponsors and their family members.
On the one hand, I thought the conditional PR was a good thing. On the other hand, it is a clumsy tool. Relationships do break down. They break down within two years. It incentivized strange behavior. I had my own radio show in Calgary on REDFM, and my cohost was a family law lawyer, and we saw many, many cases of EPOs, people that come to Canada in our community, largely women, immediately come-
Peter: Sorry, what's that, EPO?
Raj: Emergency Protection Order. Within weeks, we have calls to 911, we have a flabbergasted husband or sponsor whose family members we see, women pulling out their hair or spraying their face with hairspray and telling the police that they'd been beaten, because they know that abuse or physical abuse was the one exemption to the conditional PR requirement. It incentivized this sort of strange behavior. People underestimate, if you're willing to commit marriage fraud to come to Canada, you are then willing to of course make false allegations against the sponsor of abuse.
Steven: I ran across someone once. It was a couple, and they legitimately asked, "We are no longer interested in our relationship. How hard does he have to hit me?" They were serious. They were going to go through it. It was at that moment, I mean, I had concerns before, but I thought, "They did not realize that this is the extent that people would go."
Peter: We had talked about this last week with Deanna as well, is that it does create a very serious problem for the person in the relationship, on both sides. I have had couples who've come back to me afterward saying, "Look, things aren't working out between us, but I don't want her to be deported."
Raj: I think honestly, realistically, very simple cure to this. If there's no complainant, there's no marriage fraud. I think that that would have been the important sort of requirement, which is okay, if the marriage falls apart but the sponsor has not issue, why create these sort of-
Steven: Unless they received all that cash.
Raj: Yeah, right. Look, marriage fraud is either there's complicity, or there's a victim.
Peter: The tools are already there to deal with fraud, right? In terms of the misrepresentation, and when you talk about these marriage fraud rates, we have the tools both on the criminal side and within the immigration act to deal with full-on cases of fraud.
Raj: We're not talking about derivatives or securities fraud. We're not talking about anything complicated. This is very, very straight froward, to write a section 44 report, I think we could do that in less than five minutes.
Steven: The challenge is proving that they had the fraudulent intention before they arrived in Canada, and that they didn't just get here, or at the time of landing and that they didn't just get here and realize, "Oh my God, what is my life like now, who is this guy?"
Raj: Look, it goes back to my earlier point, prevention. We got to get these officers in these hot-spot countries like India, and China, and Vietnam, to do a really good job in terms of assessment. Whether that takes more training, or whether that takes more detailed processing, I'm not sure exactly, but we've got to prevent this before they come to Canada because after they come to Canada they have, of course, the rights as any permanent residents do to challenge the well-foundedness of a report at the immigration division, to appeal any removal order to the Immigration Appeal Division. Again, I'll go back to preventing this.
Again, let's go back to that sponsor. We can never prevent individuals that want to take $50,000 to do a fake marriage, because once there's complicity, it's hard to prevent that. If you don't want to be a victim of marriage fraud, make sure you know this person that you are making this commitment to, for the rest of your life. Prevention. That onus, I think, should be on the sponsor, and I think that should be on that visa officer.
Peter: I think one of the things that you've raised several times, though, and you talk about it in the context of the South Asian community, but I think one of the big challenges for an immigration system like Canada's, when you're dealing with a vast number of different cultures and countries and practices, for something as fundamental as marriage that's practiced very, very differently throughout the world. Everything from arranged marriages in India to telephone marriages in certain Muslim countries, to common law relationships where people stay together for 15 years and never get married in Canada or elsewhere.
The practices after the marriage are also very different. When you talk about the threshold for walking out of an arranged marriage versus the threshold for walking out of a common law relationship, or the threshold for walking out of a marriage if you come from a different culture, it's very different. Whether or not you have to wait until those levels of abuse reach a certain level, until the guy actually hits you, most of my friends, female friends, male friends, but when you talk about abuse you're usually talking about women, would walk out of a relationship long before the guy actually hit her.
That's not true in all cultures. That's not true with everybody's experience in the world. I think that's a huge challenge for our system. I don't know that there's going to be easy answers, in terms of screening.
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