By Sukhram Ramkissoon
According to immigration law a permanent resident or a foreign national is inadmissible for misrepresentation for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of the act.
There are several factors involved in this particular law such as being untruthful in applications before CIC, marriages of inconvenience, etc.
I will focus on a recent case which dealt with inadmissibility due to misrepresentation as a result of a fake marriage.
Sylvan was issued an exclusion order in August 2011 by a member of the Immigration Division who found he entered into a marriage of convenience. Sylvan appealed to the Immigration Appeal Division (IAD).
At the IAD he did not challenge the legal validity of the exclusion order but sought special relief under humanitarian and compassionate considerations. The minister sought dismissal of the appeal.
He was born in Peru in 1978 and married there in April 2005 to a Canadian citizen who was born in Costa Rica. She sponsored him and he became a permanent resident in June 2007. They were divorced in August 2008.
At his hearing, he admitted his sponsor was pregnant by another man at the time he arrived in Canada and that she was not interested in maintaining the relationship and that she had not informed the immigration authorities of these changes in their relationship.
The hearing found correctly that there had been a withholding of material facts by the sponsor relating to a relevant matter that induces or could induce an error in the administration of the IRPA.
The IAD after hearing witness and reviewing documentary evidence came to the conclusion that he had knowingly entered into a marriage of convenience in order to be sponsored.
He never lived with his sponsor in Canada and instead of returning to Peru, he quickly filed for divorce. He was introduced to his sponsor by her half-sister who was the sponsor of his brother. He too met his wife for the first time in Peru in mid-January 2005. He was landed in February 2006 and they separated in April 2006.
The panel considered the real nature of the misrepresentation and stated that it is very serious and strikes a blow at the very integrity of the immigration system. Sylvan chose to mislead Canadian officials to immigrate to Canada. The misrepresentation was intentional and continuous and he seems still not to understand the full gravity of his actions.
The panel ruled that Sylvan arrived as an adult in Canada in 2007. Most of his life was spent in Peru. He has his parents and six siblings in Peru. He never married again and has no children.
He lives in an apartment in a triplex owned by his sister who was landed in 2004. She and her husband testified he is an important presence in the life of their son who was born two months after she was landed. This positive factor is far from sufficient to compensate for the gravity of his misrepresentation. However, there is more to his story.
A year after he was landed, he was found to have a tumor in his leg which later metastasized to his lungs. The doctor wrote a letter stating that he saved Sylvan’s life.
The panel further stated that based on the doctor’s letter and on an article submitted by him, it finds that the treatment would not be available to or affordable by him in Peru.
Sylvan testified he has no insurance in Peru and that he does not know if the experimental drug is available in Peru, which he could not pay for even if it is available there.
The panel had to consider whether the facts of the case, as established by the evidence, “… would excite in a reasonable man in a civilized community a desire to relieve the misfortunes of another.” A reasonable person, in the panel’s opinion, would, notwithstanding the history of immigration abuse, be moved by the appellant’s uncertain medical state. The panel found that the appellant should be granted special relief, and allowed the appeal, and set aside the removal order.
Sukhram Ramkissoon is a member of ICCRC and specializes in immigration matters at 3089 Bathurst St., Suite 219A, Toronto. Phone 416-789-5756.