Summary: The author is a Canadian immigration lawyer who has dealt with several refusals of work permit applications for spouses seeking to join their partner in Canada. These refusals were made by the same officers at the same office (CHC Delhi) and resulted in findings of misrepresentation, which posed significant obstacles for the intended future application for permanent residence. The author notes that these findings are very serious and can only be reviewed by the federal court, with no de novo appeal to the Immigration Appeal Division. The author argues that the officers made an error in equating Section 4 of the IRPR with Section 40 of the IRPA, and that the officers rely on their own stereotypes about marriages in India and rely on an unrecorded interview to make their decision. The author states that there is a lot of jurisprudence on this issue and that findings of misrepresentation must be supported by compelling evidence and that the legal tests to determine misrepresentation and bona fides are two different things. The author believes that the officers at CHC Delhi are under a misapprehension regarding spousal work permit misrepresentation and wants to raise awareness of this issue at the federal court.
I was counsel on several refusals of work permit applications made by a spouse [overseas] seeking to join their husband/wife/partner in Canada [the spouses here were international students]. The refusals were strikingly similar; the decisions were made by the same officers in the same office [CHC Delhi]. Officer "AP" who made the initial decision -that she wasn't satisfied or that there was insufficient evidence provided regarding the bona fides or genuineness of the relationship and then recommending a finding of misrepresentation, which was affirmed by Officer "TS". A finding of misrepresentation on the overseas spouse not only results in the refusal of the work permit application, but it also poses an impediment to the intended and likely future application for permanent residence by the spouse in Canada.
A Canadian PR or citizen spouse who seeks to sponsor his or her partner to Canada under the Family Class has (generally) an appeal on the merits, a de novo appeal to the Immigration Appeal Division. There is no such fulsome or substantive review in cases involving a finding of misrepresentation by an overseas spouse on a work permit (or visitor visa). This very serious finding of misrepresentation can only be reviewed by the federal court.
It seemed very odd to me to have been contacted by clients from different parts of Canada, all involving findings of misrepresentation by spouses in India and all dealing with the spouses of international students. When we obtained the GCMS notes, we then saw the same officers involved in each of these refusals.
To begin with, the officers have made an error by equating Section 4 of the IRPR with Section 40 [a] of the IRPA. Not providing sufficient information or just because an officer finds that there is insufficient evidence of a relationship does not mean that the couple is engaged in misrepresentation. This decision-making process by these officers is extremely disturbing and we felt very strongly it should be nipped in the bud.
Unfortunately, some individuals get bad advice and are simply told that the overseas spouse can apply again. The consequences of the five year ban and the consequences of that or the impact of that on a subsequent application for PR for the five years may not be understood by everyone.
In the cases that we have seen, all of the applicants, the overseas spouses, were called in for an interview. The officer, Officer AP, acts as an interpreter, and of course, as the judge and jury. This in itself, I believe, is problematic.
The officer, who is Punjabi, relies on her own stereotypes regarding marriages from India. In one case, she felt that the photographs didn't depict a well-attended wedding, "which is not within cultural norms for the community to which they both belong." The notes didn’t indicate a true question and answer format -I have said this many times before, I have no idea why these officer interviews are not recorded. The officer goes on in the case above, and finds that the spouse provided "insufficient evidence or explanation to the limited details he could provide about her visit." She felt that he was not able to provide a adequate explanation as to "why he was married prior to his unmarried eldest brother, which is not within cultural norms." She also felt that the applicant provided "insufficient evidence or information or explanation regarding the progression of their relationship, the wedding; time spent after marriage, and the spouse's day-to-day activities in Canada ..."
Finally, by way of a convoluted reasoning process, Officer AP felt that because the applicant hadn't provided sufficient evidence/explanation to support that the marital relationship is genuine or that it was not entered into primarily for the purpose of acquiring a status or privilege, that "had the applicant been considered a spouse, it could have induced an error in the administration of the act, as the officer may have erroneously issued a work permit to the applicant, believing that they met the eligibility requirements of the program. Therefore, I am of the opinion that the applicant is admissible to Canada under Section 40 of the act... "
Findings of misrepresentation carry heavy consequences, and the evidence supporting such a finding must be clear and the officer's reasons must reflect this reality [TOKI 2017 FC606 at paragraph 38].
There is a lot of jurisprudence on this issue. The federal court has stated time and again that findings of misrepresentation must not be taken lightly, and they must be supported by compelling evidence of misrepresentation -given the significant and long-lasting consequences associated with a misrepresentation finding. One case that we relied on was Seraj 2016 FC38 at paragraph 18, where the court finds that "the officer appears to have confused insufficiency of evidence with misrepresentation ..."
The officers here seem to have missed a very simple and elementary issue which is that the legal test to determine whether someone is caught within the ambit of Section 4 of the IRPR and whether they have committed misrepresentation under Section 40 of the IRPA are two different creatures. If these tests truly overlapped then sponsors/applicants under the family class would be refused on bona fides and be found inadmissible for misrepresentation, as well. That is obviously not the case.
It seems that these two crusading officers are under a misapprehension when it comes to determining misrepresentation on the basis of spousal work permits, and it seems that this misapprehension has somehow become institutionalized at CHC Delhi. It was important for us to make this point at the federal court because there are wider implications and a ripple effect, and we don't know how many individuals' lives have been impacted by these two officers.
The other cases and the notes that were provided with respect to the other decisions are quite similar. Again, it is Officer AP doing the initial interview, acting as the interpreter, and making the recommendation that a finding of misrepresentation be made against the applicant [and by extension, the international student in Canada/the couple]. In another case, the Officer AP found that the applicant provided "insufficient explanation why they did not marry until after the applicant submitted her study permit" and that the couple didn't provide photos that depicted an exchange of rings [at their engagement]. Again, Officer AP notes that the photos provided didn't depict "such a large gathering."
Officer AP states in her notes that "the applicant provided inconsistent information and insufficient explanation regarding the progression of their relationship, the marriage and time spent together after marriage ..." and the applicant was unable to provide clear and consistent information about ... her day-to-day activities after marriage."
This seems almost like a cut-and-paste from the other decisions.
The same officer relies on the same stereotypical assumptions about Punjabi culture and weddings. For example, there is no requirement for an exchange of rings for an engagement within the Punjabi culture. An “engagement” could simply consist of gifts given to the couple, gifts given by family or gifts are exchanged by family or the families. The officer also took issue with the fact that the marriage was done at a marriage palace in Faridkot which was a halfway point for both families. The officer had an issue with this: "I told them I do not find this convincing as there are palaces in every district in the Punjab."
Picayune and microscopic findings such as this should not be used to gainsay a marriage and relationship. As an aside, even if there were palaces in every district in the Punjab, the applicant and his spouse and their families are free to select whichever palace they found most suitable for their requirements. I would imagine that suitability is not dependent on location alone, that there are other factors that come into play, such as aesthetics, availability and cost.
Officer AP also took issue with the fact that the couple did not go on a "honeymoon." [take a look at the ATI response which I've posted earlier about cultural training at the Delhi/India visa offices where there was a throwaway line perhaps that there was no concept of a honeymoon in the Punjabi culture, and that honeymoons were done simply for the benefit of the officers].
The officer also gets it wrong in this other case when she finds that the spouse in India didn't have enough knowledge about his wife's studies in Canada (he knew exactly, within a month of when her studies ended, and the Officer got it wrong). The officer also found that their chat messages to each other, that they love and miss each other, as not being indicative of a bona fide marital relationship. WTH?
I'm glad that we were able to intercede and assist these couples. The Department of Justice consented after receipt of the applicant's record and our memorandum of argument. Their future APR should now be unimpeded from this very serious finding of misrepresentation. I hope that this problematic decision-making process will be addressed. It may be necessary to provide my thoughts or an overview of my concerns to the program manager of that particular visa office.
I know that there will be other couples that may not understand the impact of this finding, and the repercussions of Officer AP/TS decision-making unfortunately will reverberate for some years, as the full implications may only be realized by some couples when the spouse in Canada makes an application for permanent residence, and are advised that they are inadmissible to Canada as a result of their spouse's "misrepresentation" on a previous work permit application.