Immigration Matters Sukhram Ramkisson
Court orders new hearing for woman who paid $50,000 for bogus marriage
I have written several columns on misrepresentation under the Immigration Refugee and Protection Act. However, I am returning to this subject this week because it remains a matter of major concern.
I believe a recent case published on the website of the Federal Court of Canada with respect to misrepresentation will certainly be of interest to readers of this column.
So let’s look at the case of Jay (not her real name) , a citizen of China who was born in 1985 and came to Canada in 2008.
Jay married her first husband, Dan (not his real name), in 2008. He sponsored her and she became a permanent resident in December 2008. The couple divorced in January 2010.
In April 2010, she met a Phillip (not his real name) who became her second husband. Phillip came to Canada in February 2010 and claimed refugee protection which was denied in October 2011. Jay and Phillip were married in November 2011. They have two sons and a daughter, Phillip is a chef and part-owner of a restaurant.
In 2012, Jay filed an application to sponsor Phillip as a permanent resident and this triggered an investigation by Canada Border Services Agency (CBSA) into a potential misrepresentation, related to Jay’s first marriage.
In her submissions to CBSA in February 2014, she described the circumstances of her first marriage, noting that a romantic relationship had quickly disintegrated because of her husband making comments about her not wearing makeup. She also said and that her husband had kicked her out of his apartment after they had lived together for three months.
Jay was referred to an admissibility hearing before the Immigration Division in April 2015 and was found to have misrepresented herself in her first marriage application and an Exclusion Order was issued against her.
She then exercised her right of appeal as a landed immigrant to the Immigration Appeal Division (IAD).
At this hearing she did not contest the legal validity of the Exclusion Order but asked that the order be dismissed or stayed on humanitarian and compassionate (H&C) grounds. She admitted that she had lied under oath at her hearing before the Immigration Division, that she had in fact entered into a non-genuine marriage with her first husband, and that she had paid about $50,000 to obtain her permanent residence under false sponsorship.
Noting that the misrepresentation was very serious, the IAD said that her explanation with respect to her fraudulent marriage ( she said she wants to set a good example for her children) was not credible and that although she expressed remorse for her actions, it was not genuine remorse.
This finding was based on:
(1) her attempt to shift the blame to her parents, whom she stated paid $50,000.00 for her to acquire permanent resident status; and
(2) the self-serving nature of admitting her misrepresentation after having been caught.
The IAD considered a number of H&C factors advanced by Jay but did not accept them. It concluded that the best interest of the children was not a compelling consideration, and in the light of all the other negative considerations, Jay should not be granted H&C relief and dismissed the appeal in October 2018.
Jay then filed for judicial review of the IAD decision with the Federal Court of Canada.
In the recent Federal Court decision, it was stated that certain sections of Immigration law specifically provides that removal orders issued as a result of misrepresentation may be excused in light of sufficient H&C considerations. It also noted that there may be circumstances where a removal order issued as a result of misrepresentation may be” cured ” by H&C relief.
However, the learned judge pointed out that in this matter the entire tone and tenor of the IAD’s H&C analysis appear to be intent on punishing Jay and her children for her misrepresentation. They found that by adopting such an approach, the IAD “unreasonably assessed the evidence regarding the best interests of the children, as well as evidence going to other factors; as well as the preponderance of the evidence which suggests that there would be significant barriers to some or all of the children accessing permanent residence status or citizenship, public education, and public healthcare in China.” It was also noted that the IAD also failed to consider all the evidence as a whole.
The learned judge commented that Jay’s conduct in lying repeatedly to immigration authorities for an extended period of time, is reprehensible. However, the clear language of certain sections of the Immigration and Refugee Protection Act entitles Jay to a full consideration of her H&C considerations. The application was allowed, and the matter was referred to a differently constituted member of the IAD for reconsideration.
We wish Jay luck in her matter before the IAD.
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.