Immigration matters sukhram ramkissoon
A ‘ marriage of convenience ‘ can result in loss of status and criminal conviction
Canadian immigration authorities take a serious view of fraudulent marriages or “marriages of convenience,” as they are commonly known, and subsequent sponsorship for permanent residence in Canada.
Persons who participate in such schemes are at risk of imprisonment, fines, losing their permanent resident status, separation from his/her spouse, Canadian-born children, and eventually being deported from Canada and barred from making any further application for five years.
Let us look at a recent Federal Court case in which a person obtained permanent residence status through a ” marriage of convenience. ”
In, 2006, Mrs. Z married Mr. D, a Canadian citizen, in an event staged for Mrs. Z to secure Canadian permanent resident status. Mrs. Z paid a considerable sum of money, and even signed a divorce application, prior to the marriage. Mr. D sponsored Mrs. Z and in 2007, Mrs. Z was granted permanent resident status in Canada under the family class. But by mid- 2009, Mrs. Z and Mr. D were officially divorced.
In July 2010, Mrs. Z remarried. Her second and current husband, Mr. J, is a Canadian citizen. They have two young together, both Canadian citizens by birth. Mrs. Z is not a Canadian citizen.
The Canada Border Service Agency [CBSA] initiated and conducted “Project Honeymoon”, to investigate immigration marriage fraud. In June 2017, an officer interviewed Mrs. Z who ultimately admitted that she paid a third party to arrange her first marriage to Mr. D for the sole purpose of obtaining permanent resident status. As a result, the officer prepared a report and referred her to an inadmissibility hearing before the Immigration Division (ID).
The ID found that Mrs. Z misrepresented herself, by entering into a false marriage and was issued a Removal Order. She immediately appealed this order to the Immigration Appeal Division (IAD) on humanitarian and compassionate grounds. In December 2019, she and her husband testified and argued that considering the best interest of her two Canadian-born children, her Canadian husband, hardship, and establishment in Canada, these factors warranted special relief in allowing her appeal.
The IAD found that Mrs. Z was responsible for the misrepresentation, even though it occurred through a third party and that the narrow exception for misrepresentations of which the individual was unaware, and which occurred beyond their control, did not apply in her particular circumstances.
The IAD then considered whether Mrs. Z was successful in establishing a case for special or discretionary relief. The IAD first noted there are many factors to be considered when exercising its discretionary jurisdiction. In the context of a misrepresentation, these factors include: the seriousness of the misrepresentation leading to the removal order; the degree of remorse expressed by Mrs. Z, the length of time spent in Canada and the degree to which she is established in Canada; her family in Canada and the impact the removal would cause on the family; available family and community support; the degree of hardship that would be caused by her removal, including the conditions in the likely country of removal; and the best interests of any children affected by the decision.
The IAD also considered the objectives of the Immigration and Refugee Protection Act, and the maintenance of the integrity of the immigration system. With respect to the seriousness of the misrepresentation, and after reviewing the circumstances, the IAD concluded that the misrepresentation was “egregious”. The IAD noted that the deceit allowed Mrs. Z to obtain a permanent resident card, that she was aware of the misrepresentation she engaged in and bore responsibility for the misrepresentation done on her behalf. The IAD concluded that the seriousness of the misrepresentation did not weigh in favour or granting special or discretionary relief.
The IAD concluded that, although Mrs. Z’s establishment in Canada, and the best interests of her Canadian children are factors supporting the granting of special or discretionary relief, they were insufficient to overcome the degree of her misrepresentation. Further, the lack of her remorse and the evidence of family and community support available to Mrs. Z were also insufficient to support the granting of special or discretionary relief.
In January 2020, the IAD dismissed the appeal, and subsequently Mrs. Z made an application to the Federal Court for judicial review. She argued that the IAD made several errors in its decision, such as, but not limited to, failing to observe principles of natural justice and made its decision in a perverse and capricious manner.
Recently, after hearing representation from Mrs. Z and counsel for the immigration minister, the Federal Court ruled that in essence, Mrs. Z disagrees with the IAD’s assessment and conclusions. She was asking the Court to reweigh the factors, which it cannot do under judicial review. The learned judge was satisfied that the IAD rendered a “comprehensive and nuanced decision” based on “an internally coherent and rational chain of analysis” and “justified in relation to the facts and law that constrain the decision maker”.
The Federal Court dismissed the application for judicial review.
A person should never engage in a “marriage of convenience” as there are always repercussions affecting that person’s life in Canada. This article is for information purposes and should not be viewed or interpreted as legal advice.
SUKHRAM RAMKISSOON is a member of ICCRC and specialises in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario. Phone 416 789 5756,