MBB LAW INSIGHTS SERIES - IMMIGRATION APPEAL
Permanent residents of Canada who are found to have committed Misrepresentation may appeal to the Immigration Appeal Division (IAD). Here is a typical case:
Mr. Xu arrived in Canada to attend university.
He is introduced to a Canadian citizen whom he marries to obtain his permanent resident (PR) visa. His wife successfully sponsored him to Canada.
Mr. Xu is landed in Canada as a permanent resident.
Mr. Xu divorces his Canadian citizen spouse.
Mr. Xu marries his girlfriend, Xiaolin, a Chinese national. A few months later, he submitted a sponsorship application for her.
Xiaolin is interviewed at the visa office in Hong Kong. At the interview, the visa officer expressed concerns about the genuineness of Mr. Xu’s current and former marriage. The sponsorship application is refused.
Mr. Xu is investigated for Misrepresentation. He is reported to the Immigration Division (ID) for a hearing to determine if he is inadmissible to Canada.
Mr. Xu appears before the ID for his hearing.
The ID renders its decision that Mr. Xu committed Misrepresentation. The ID signs a removal order against Mr. Xu. He is required to leave Canada. Mr. Xu has 30 days to file an appeal to the IAD to cancel the removal order.
In a typical case of Misrepresentation, the person may (i) challenge the legal validity of the decision finding the Misrepresentation, or (ii) concede to the decision and ask that the IAD grant equitable relief.
About the IAD
The IAD is an administrative tribunal. It is not a court of law. As a result, it is not bound by strict rules of evidence. This means that the IAD can receive into evidence anything that it considers to be “credible, reliable and trustworthy.” So, it is important to provide all documentary evidence which may corroborate any statements that you have made. This includes evidence of travel, financial support, and communication between you and the foreign partner you may be sponsoring.
In the context of a Misrepresentation or removal order appeal, it also includes evidence of rehabilitation, remorse, supporting letters from employers, family members, community organizations, certificates from programs, letters from counsellors and community leaders as well proof of assets, such as home ownership, bank accounts, income tax return, and any financial obligations which you are responsible for.
You are entitled to be represented by counsel at IAD hearings. The IAD has the power to make determinations on an “equitable” basis, meaning, in some cases, it can consider humanitarian and compassionate considerations to overcome the immigration rule or regulation which governs your particular situation.
Permanent residents are required to spend a minimum of 730 days present in Canada in any given five-year period. Here is a typical residency appeal case:
Yuwei, a Chinese national and a permanent resident of Canada, landed in Canada along with her husband and ten year-old son.
Mar. 2010-Nov. 2015:
Yuwei travelled many times to China, where she spent the majority of her time. During Yuwei’s travels to China, her husband and son remained in Canada.
Yuwei had been in Canada for less than 730 days since landing in Canada. She applied for a travel document to return to Canada.
Her application for a travel document was refused for failing to meet the residency obligation. Yuwei has 60 days to appeal the visa officer’s decision.
Grounds for Appeal
Yuwei needs to prove that she either met the residency requirement between November 2010 and November 2015 (the date of her application for a travel document) or apply for equitable relief.
The Immigration Act and Regulations allows for exceptions to the 730 days Rule, including but not limited to, if Yuwei is on a temporary assignment working for a Canadian company abroad; if she is accompanying her Canadian citizen spouse while she is outside Canada, or, alternatively, she can request that the IAD consider humanitarian and compassionate (H&C) reasons for her inability to meet her residency obligations. The law is quite complex and requires the advice of skilled professionals to guide you to a successful appeal
The below noted case is an example of the spousal sponsorship application that is often refused by the visa office:
Mr. Liu, a Canadian citizen, married his first wife in China.
Mr. Liu sponsored his first wife to Canada.
Mr. Liu and his wife separated.
Mr. Liu met a woman, Ms. Yu, on WeChat and started communicating with her.
Mr. Liu and his wife divorced.
Mr. Liu traveled to China to meet Ms. Yu. During his visit in China, he proposed to Ms. Yu and they married a few days after the proposal.
Mr. Liu returned to Canada and submits a sponsorship application for his new wife.
Ms. Yu is interviewed by the visa office in Beijing. After the interview, the sponsorship application was refused, for the reason that the marriage was not genuine and that it was entered into primarily for the purpose of immigration. Mr. Liu has 30 days to appeal the refusal of his sponsorship application..
Grounds for Appeal
To successfully appeal, Mr. Liu needs to show that his marriage to Ms. Yu is genuine and that it was not entered into primarily for Ms. Yu to obtain a permanent resident visa to Canada.
As of September 20, 2018, Prince Edward Island (PEI) has closed two entrepreneur streams of its provincial nominee program (PNP): the 100% Ownership Stream and the Partial Ownership Stream. Previously through these streams, applicants could deposit $150,000 as security and a further $50,000 for living expenses in exchange for entering PEI’s PNP program. The province then nominates selected applicants for permanent resident status. This allowed some applicants to obtain permanent residency before entering PEI if they expressed an interest in operating a business in PEI and paid the deposits. The PEI government shut these streams down because most entrepreneurs did not remain in PEI after their initial expression of interest.
The narrowing of PEI’s PNP program is also the result of two large scale investigations by the Canadian Border Services Agency (CBSA) this year. This investigation has affected over a thousand entrepreneur applicants in PEI. In May of this year, the CBSA claimed that 566 applicants under PEI’s PNP were suspected of misrepresentation under the federal Immigration and Refugee Protection Act. Later in August, the CBSA stated that another 462 PNP applicants were under similar investigation.
If applicants are found to have committed misrepresentation, then they may lose their permanent resident status. Procedurally, the government will issue a notice to the individual under investigation for misrepresentation. The individual then has to appear for an admissibility hearing before the Immigration Division (ID) of the Immigration and Refugee Board of Canada (IRB). The reviewing member will consider any details before and up to the date of the hearing, including how the person established themselves after becoming a permanent resident. After considering the evidence, the reviewing member may issue a removal order. In certain circumstances, it may be possible to appeal the removal order to the Immigration Appeal Division (IAD) or seek permission of the Federal Court of Canada for a judicial review of the IRB’s decision.
For comparison, the CBSA says that, in the 1,600 cases involving immigration fraud in Vancouver last year, 81 people have been deported, 160 others are facing removal orders, and some remaining cases are under appeal as of September 2018.
Preparing for a misrepresentation hearing or an appeal is difficult.It is best to have a skilled professional put the best case forward. If you are one of the applicants currently under investigation by the CBSA, have had an unfavourable misrepresentation hearing or are facing a removal order, we can help. At MBB Law, our team of lawyers and consultants, including a former Canadian visa officer, have the knowledge and expertise to guide you so that you may obtain a successful outcome.
MBB Immigration and MBB Law have lawyers, consultants and paralegals, including a former Canadian visa officer. We speak Mandarin and Cantonese. We understand your culture, practices and beliefs. We have the knowledge, experience and commitment to ensure that you have the best representation.
Whether your appeal stems from a Family Class sponsorship, a failed Residency Obligation, or Misrepresentation, we can advise you as to what evidence you will need to gather and present to the IAD and guide you so that you may obtain a successful outcome.