Many international student applicants have been found to have used false documents to secure their student visas/study permits. Some are aware of the use of false documents. Some are innocent dupes and victims at the hands unscrupulous agents. Some are discovered at the visa office. Some are found out during an examination when they land in Canada. Some are here for years before CBSA and enforcement action catches up with them.
CBSA will allege misrepresentation -a broadly worded section of the IRPA. This results in a section 44 report which is the initiating document with respect to enforcement. The report is then forwarded to the Immigration Division (where the person concerned is in Canada). Here the Minister represented by a hearings officer bears the burden of establishing that the person concerned is not a Canadian Citizen and not a Permanent Resident; that they utilized a false document to secure a visa or entry to Canada; and that the false document was material to the application itself. This is usually a low bar.
I've handled a number of such admissibility hearings. Sometimes you get lucky --the Minister fails to provide actual evidence that the document in question is false. There is, also, the defence of "innocent" misrepresentation --that is, where the person concerned truly did not know of the misrepresentation.
Excerpts of a recent transcript will serve to illustrate what happens during such proceedings:
Member:
In your set of circumstances, the Minister is alleging that you are a foreign national in Canada as a temporary resident, that you presented a document being a letter of acceptance to xxxx xxx in Toronto to the
Canadian consulate in Mumbai in support of your application for a study permit and temporary resident visa. The Minister takes the position that this document that generated your status was fraudulent and they take the position that perhaps a different decision might have been made by the official granting you status had they been aware that this document was not genuine. So really, that is what this hearing is going to be about today. The Minister asked to establish on the balance of probabilities that you are a foreign national, that you made an application for temporary status to Immigration officials and that a document in support of this status was fraudulent, meaning not genuine.
The Minister must then make submissions on why any document that they believe that was not genuine is a material fact related to a relevant matter that induces or could induce an error in the administration of the Immigration Act. The Minister is successful in meeting their burden of proof today. I would have no discretion in the matter and would have to issue you with something called an exclusion order. An exclusion order is an order, if was to become enforceable, it would cause you to lose your permanent resident…sorry, it would cause you to lose your temporary resident status. You would have to leave Canada and you wouldn’t be allowed back into Canada for a period of five years. That five-year period would begin on the day that you confirmed your departure from Canada. When I say I have no discretion, by that I mean I can’t take into account, you know, humanitarian and compassionate factors that might exist. I can’t grant you leeway, you know, based on circumstances that I might be sympathetic to that type of thing and I am required to just make a finding about whether a misrepresentation has occurred in line with the statute and the jurisprudence, and then I am compelled to make a removal order if I am satisfied that the Minister has met their burden of proof.
Conversely, if I am not satisfied that the Minister has established their case today, I would be issuing something called a favourable decision, meaning that an exclusion order would not be issued and your status in Canada would remain unchanged. Sorry, I see my camera went off. This happens from time to time. Just give me a moment here. All right. I am back. So, those are the two outcomes that can occur over the course of today’s proceeding. If I issue an exclusion order and you wish to challenge it, you must do so by seeking leave for judicial review with the Federal Court of Canada. If I issue a favourable decision and the Minister wishes to challenge it, he may do so by going to the Immigration Appeal Division, in which case you would have a new hearing before the IAD.
The way that this will work is that the Minister is going to present their evidence initially based on documents. They don’t have any direct questions for you. Your Counsel will then call you as a witness. He can ask you questions. When he is finished, the Minister does have the right to cross examine you and I may or may not have questions for you depending on what I hear. Your Counsel will then also get the opportunity to make submissions. You can make arguments based on the documents put forward by the Minister and by the documents that you have forwarded.
In this case, I made a number of concessions, including the fact that the letter of admission was, indeed, false or fraudulent. Testimony was adduced from the person concerned. He testified in a credible and straightforward manner. The evidence showed that he had studied internationally in the past, that he had complied with the terms and conditions of those studies, that he had relevant prior studies, and had above average English proficiency. In sum, he had no reason to submit a false document, he only learned it was a false document after being advised by CBSA and was clearly a bona fide student (while he didn't attend the original DLI, did transfer and studied at another DLI after arriving in Canada). After learning of the false document, he and his family registered a criminal case against the agent in India that provided him with the false letter of admission.
In my submissions I focused on the issue of innocent misrepresentation:
...of course, it is the Minister’s burden. When you try to adduce reliable or, you know, evidence, how do you do that in a…from a hearsay point of view. I know that hearsay, you know, rules of evidence aren’t strictly applied in these sort of Tribunals, but we still have a sort of inadequate foundation. I don’t think the stat dec actually means much in this sort of situation. When you have actual testimony provided by the person concerned and available for cross examination, that really is much better evidence and so, that is one of the sort of issues that I wanted to highlight for you.
Now, what I am relying on is the exception to misrepresentations made by an applicant’s agent. My friend is correct. Normally, misrepresentations made by an agent bind the person concerned, the applicant. So, misrepresentation made by an applicant is indeed a problem for the person concerned. However, there is an exception to that. So, I have got a citation for you, Sir. So, it is…the case is a Federal Court of Canada decision on Goudarzi and would you like the citation, Sir?
MEMBER: Yeah. I know the case, but it will just make it easier for me to look it up if you give me the citation.
COUNSEL:Should I spell that?
MEMBER: G-O-U-D-A-R-Z-I, right?
COUNSEL: Yeah. And, it is [2012] FCJ 474. So, Goudarzi, of course, you know, that is where I think submitted a false IELTS test. And even when the applicant had no need of that false IELTS test, they provided subsequent IELTS test. It was still found to be a misrepresentation. Now, the issue is paragraph 46, which is cause of the exception. So, the fraudulence of a consultant doesn’t bind an applicant who has acted with care. So, there, they were relying on Doe that is 2010 FC 284 at paragraph 28, but paragraph Goudarzi at 46, as long as you have…the individual has taken responsibility for the contents of their application, they have reviewed it before it was submitted. You have to exercise diligence. So, that is Goudarzi. So, now, when we then look…so, there is that sort of exception.
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...Brar is 2016 FC 542. So, here that misrepresentation won’t be applied who have made reasonable increase and for whom knowledge of the misrepresentation still remains beyond their control. It doesn’t require applicants to exhaust every single avenue of investigation, but to act reasonably. So, we have to gauge the applicant’s contact behaviour increase at the time of application for example and an examination let us say.
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for a person to be responsible for the actions of his agent, the person must have authorised the agent to do what the agent has done. And in an Immigration context, the jurisprudence appears to require that the person concerned exercised due diligence and not be wilfully blind. So, here, for example, let us say, you know, a lot of these sort of cases that I have seen are like, oh! I just signed the application and the agent filled it out. Well, that is not acting with due diligence, that is not…that’s clearly you are essentially wilfully blind and you can’t then now plead ignorance.
So, conclusion, if the person concerned can demonstrate that the agent had not been authorised to make the representations, then he or she should be able to resist a finding of inadmissibility. In order to succeed, the person will have to demonstrate due diligence and that he was not wilfully blind to the actions of his or her agent. So, that is the case law. That is my argument in a nutshell.
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P2 is a very, very interesting article, but this gives you the backdrop. So, was he acting reasonably in his particular circumstances? Well, P2 explains that context. Why do individuals rely on agents in India, for example? Well, it’s all…it’s all in this article. So, for example, just you know, page 2, foreign students are lied to and exploited on every front. You know, page 5, Canadian education is being sold like hotcakes. Page 8, mortgaging land to cover tuition has become common with more and more families literally selling the farm to send their children to community colleges. Page 10, agents connect students with post- secondary institutions. They often find the school, complete the paperwork, and apply for the visa. Page 12, agents were double charging, taking money from students as consultants and then taking commissions.
They were falsifying grades, faking English proficiency tests, anything to get kids into Canadian school. Goes on and on and on. So, that is why we put in P2 to show that this is the circumstances.
So, now, what do we have here? We have an individual who used an agent, who went to New Zealand, very similar Commonwealth country as ourselves, went through that process, applied for studies, has a good IELTS score, language proficiency scores, went to New Zealand, studied in New Zealand, completed his program of studies in New Zealand, couldn’t get a work permit, returned to India, did not overstay, respected the rules, regulations, laws, policies of New Zealand as an international student.
Why would an individual like Mr. XXXXXXXX use a false letter admission to xxxx College? There is no conceivable reason, why he would need a false letter of admission? The man has gone to school in New Zealand in business, in probably a college very similar to xxxx College. He has good English skills. He testified in front of you. We have his IELTS scores. It is academic IELTS. He had no…and the program of studies is commensurate and logical with his prior study.
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But that’s not what happened. He got swindled. The guy is a crook. And so, should he pay the price for being taken advantage of? No. Was he part of this? No. Clearly, this is a scam done by a fraudster in India and this is very, very common. Again, it is in P2. So, we have someone who is being exploited, he has been lied to, his family has been ripped off of money. He sought a request. So, we have a request for an FIR right here. So, again, that tends to prove what Mr. XXXXXXXX is saying that he got scammed. P2 tends to prove what he is saying. It is corroborating what he is saying. He got scammed. P1 proves that he is what he says he is, his proof of prior international studies related to his studies in Canada.
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...he is clearly not wilfully blind. There is nothing on that document that would raise any suspicion. Obviously, it is good enough to get you a student visa. There is nothing…there is no way that, you know, Mr. XXXXXXXX in 2017 looks at this letter and says, oh! I think there is some problem with this letter. There is a receipt. There, the number matches, the number on the letter of admission. Everything appears to be…nothing would raise any suspicion whatsoever. It is not a situation where Mr. XXXXXXXX can’t do an IELTS and his agent obtains an IELTS for him. It is not a situation where he can’t get admission to xxxx College and somehow his…his agent obtains a letter admission from. So, very unusual set of facts Sir.
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I know that this has happened in the past. I know that there is other individuals stuck in sort of…you know, these sort of circumstances. Criminal charges have been made against some of these students, but those facts and those other cases are very different. So, you will have someone completely unqualified with inadequate IELTS purportedly as a letter of admission to the University of Waterloo for Master’s in Civil Engineering. You have other cases where, you know, you have individuals that came as a student, never studied at all in Canada, immediately attempted to obtain an LMIA and get a work permit and working without authorisation and the whole gamut of things, but those are not the facts we have here. The facts are actually very, very different.
The Member was able to render his decision the same day, and while it was close, he didn't find the exception to apply. The reasons however give us some hope that we will be successful at judicial review at the Federal Court:
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Your Counsel did not argue the way that the facts were incorrect in this case, but rather made a very strong argument that the exception to misrepresentation should apply in your case. So, the question that I have to answer is whether you had both an honest and reasonable belief that the documents that were being filed on your behalf were not the product of a misrepresentation or were not genuine. I have no problem with the first prong of that test. I do find that you honestly believed that these documents were genuine and that you honestly believed that you were not committing a misrepresentation.
You testified today at the proceeding and you were very credible. You are an educated person. You previously used the services of a consultant to get status in New Zealand. There were no issues with that. So, you had a good experience using consultants to research schools and make applications on your behalf. You did not allow your status in New Zealand to lapse. So, you took your immigration matters seriously. So, that gives me, you know, a reason to believe that that’s your general approach to these types of things.
You don’t try and skirt the law or get around the regulations or, you know, acquire anything through lies or misinformation. And again, I have no trouble believing you when you said that you had complete faith in this second consultant that you hired through recommendation from your family. It was a steep fee to pay. It was about $30,000. It was one of these, you know, I will use the slang, one-stop shop in terms of getting status in Canada as a student and by that, I mean all of the necessary applications to get you to Canada as a student or rolled into one. This includes researching a school that meets your needs, finding a program within that school that meets your needs, making sure that all of your qualifications are in order and in line with the program requirements, paying fees for that school, getting accepted to that school and then, of course, all the immigration documentation and applications that follow.
So, you went into this relationship with this consultant believing that it would be very much like the previous one that you used with success, the consultant you said showed you the documents that you filled out along with the supporting letter from xxxx College, you had all of that before you and you knew that it was going to be submitted and according to you and I believe you that you had no reason to doubt the genuineness of that document when it was submitted on your behalf. And I also believe that, when you arrived in Canada and when you were before the Immigration officer, that that was the first time that you knew that the document was false. I have no trouble believing all of that from you because you have testified incredibly to those facts.
So, the question for me though is that second prong of the test satisfied. Considering all of the circumstances of this case and the jurisprudence, did you act reasonably? Did you have a reasonable belief that the information you submitted in support of your application was not a misrepresentation? Reasonableness has been said to apply in instances where the information in question is beyond the applicant’s control and that is where I think the second prong of the test fails here. Now, I am going to explain why I make that conclusion. I have to ask myself as to whether in the circumstances, you exercised the requisite due diligence in ensuring all the documents submitted on your behalf were genuine and that the information in it was accurate. I don’t find that the actions that you took rose to the level of diligence required to meet the reasonableness prong of this test. Simply put, verification on your part of ensuring that the acceptance letter to xxxx College was not information that was beyond your control.
The issue at the Court will likely be whether, in these circumstances, the person concerned had a requirement to look beyond a prima facie genuine letter and take steps to personally contact the DLI prior to arriving (or upon arrival) in Canada (what's the point of hiring an agent then?):
And in this case, you simply accepted that the letter from xxxx College was a genuine letter. You didn’t phone the school to double check that it was…you were actually accepted or to verify that all the information in that acceptance letter applied to you. You didn’t phone to make sure that they were expecting you and that you were actually accepted to that college, and that’s why I asked you the question that I did because applying to a post-secondary institution is a very personal choice and I understand that it is common for foreign nationals to often outsource this information to consultants and firms and that type of thing, but I think that comes with a risk.
When your Counsel put a very thorough document before me in Exhibit P2 that encapsulates that risk, and that is why I say to you, sir, that the world of immigration fraud and the world of foreign nationals being victimised by these consultants is not new. It is actually quite prevalent in articles such as the Walrus, in news stories, you know, in Vancouver, there is a very famous one, New-Can is an immigration consulting firm that was prosecuted criminally and this Tribunal has adjudicated hundreds of those types of cases.
So, when you dabble in the world of immigration consultants, I think it is incumbent on applicants to do so with a degree of skepticism and I would say that applies even more so when it is these one-stop shops. You didn’t apply to xxxx on your own. You entrusted the consultant to do that and simply accepted that the acceptance letter was a genuine letter on the say-so of your consultant. You were victimised. There is no doubt about that in my mind and you were probably taken advantage of because you are trusting the person and it didn’t help that you had a previous positive experience with an immigration consultant in the past. So, you may not have had your senses as heightened as perhaps they should have been in this case.
But the fact remains you did not do anything to verify the veracity of that acceptance letter that you used to support your application here, and I don’t find that simply outsourcing all of your immigration and educational matters to a third party and simply looking at the documents that they show you that are going to form part of your application amounts to enough due diligence to absolve you of your duty here to make sure that all the documents that you put before Immigration officials are truthful, honest, genuine and accurate.
A person from abroad wants to study in Canada, eager to do so, their family wants a better life for them. So, they do exactly as Mr. Sharma said, they sell the farm so to speak, taking massive loans, mortgaging properties, selling items of value, doing anything and everything to fund this international education. And unfortunately, that has become an industry…that has been an industry born with these crooked immigration consultants that take advantage of unsuspecting and honest people like yourself.
I can see why you didn’t review that letter from xxxx. I looked at it myself. You know, sometimes there is clues in the documents that they might not be genuine, spelling errors or grammar errors, that type of thing. That was not the case here. Genuine letter head, professionally written, everything seemed to be in order.
So, I can see why you would have accepted it, but I don’t think the law supports you in this case when I review so many of the Federal Court matters that put the onus on the applicant to be extra diligent in ensuring that anything they send in support of their application is honest, accurate and genuine and it is not as though you didn’t have the opportunity to do that. You just didn’t think to do it, but you were not denied that opportunity, it was not beyond your control. You just didn’t think you needed to do it. And I think, you know, going forward, you will be extra vigilant with all matters when you contract out to third parties, but in this case, I am afraid you were caught up in this all-too-common scheme. So, I don’t find that the narrow misrepresentation rule applies in your case.
This "all-too-common" scheme will continue to plague our immigration system; sadly, it will also cause additional scrutiny and false-refusals on genuine applicants.
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