The recent public policy regarding the non-application of s.117(9)(d) only applies to some Permanent Residents who fail to disclose family members before or upon landing in Canada. Enforcement action can still be taken against other sponsors that became Permanent Residents under different streams, like the economic stream. These sponsors who had failed to declare family members can be found inadmissible for misrepresentation. The person in question will receive a Procedural Fairness Letter, and the response will be evaluated based on the Ribic and Chieu factors. If the Officer writes a report, it will be referred to the Immigration Division. At the ID, the person will contest the allegations in the report, and if necessary, the case can be taken to the IAD. The IAD can consider humanitarian and compassionate grounds under s.67(1)(c) of the IRPA, considering the seriousness of the non-disclosure, reason for it, remorse, establishment and family in Canada, impact of BIOC, and hardship if relief is not granted.
The recently announced public policy regarding the (non) application of s.117(9)(d) only pertains to some Permanent Residents (that fail to disclose family members before or upon landing as Permanent Residents).
IRCC is still proceeding against PRs that have come under different streams (like economic). Individuals that fail to declare family members can be found inadmissible to Canada for misrepresentation. An Officer will send a PFL (Procedural Fairness Letter) to the individual in question. The response to the PFL essentially mirrors the Ribic and Chieu factors (discussed below).
If the Officer decides to write the report, a Minister's Delegate then refers it to the Immigration Division.
Generally speaking at the ID, the person concerned concedes the allegations contained in the section 44 report (that they are a PR of Canada, that they landed on x date, that they married on y date, and that they failed to disclose their marriage or the birth of a child on their application or at landing).
In a recent case that was heard in Edmonton, I conceded the allegations on behalf of my client but argued for a permanent stay of proceedings on the grounds of abuse of process. There is little oversight over the IRCC/CBSA in deciding to write/and waiting to refer the report; however the ID can and should curtail these excesses.
Most of the time, the powder is kept dry for the IAD -which can consider humanitarian and compassionate grounds under s.67(1)(c) of the IRPA (the so-called "Ribic and Chieu" factors). The IAD can consider the seriousness of the non-disclosure (arguably, the recent policy announcement undermines the "seriousness" of the non-disclosure. ), the reason for the non-disclosure, the person's remorse, the person's establishment and family in Canada, whether and how the BIOC impacts the decision, and the hardship if relief is not granted.
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