Immigration enforcement snares misleading residents

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BY WILLIAM MACINTOSH

 

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WHEN Janilee Reyes, a permanent resident, married in the Philippines in January, 2008, she probably did not consider that it would lead to her removal from Canada. However, earlier this year the Federal Court confirmed a decision to remove her from Canada. What had she done wrong? She had made a misrepresentation when applying to sponsor her husband to Canada, making her removable.
 
Before June, 2002, a permanent resident could only be removed for misrepresentation if it related only to receiving their own permanent resident status. Since then, under the current immigration law, the grounds for removing a permanent president include misrepresentation for any immigration matter.
 
It took about six years before the Canada Border Services Agency took someone to court under the new law, about the same time Ms. Reyes committed her misrepresentation. When she married in January, 2008, Ms. Reyes signed a false declaration claiming that she had lived with her intended husband for five years in order to expedite her marriage by avoiding the need to obtain a marriage licence. That action made her marriage void from the start, so she was not entitled to sponsor her husband to Canada when she submitted an application for him in March, 2008.
 
A month after Ms. Reyes filed her sponsorship, the Border Agency brought Fakhar Niaz before the Immigration and Refugee Board to remove him for failing to disclose a bigamous marriage. He had married a second wife in Canada after marrying his first wife in Pakistan, who he subsequently applied to sponsor to Canada.
 
When the Border Agency learned of the second marriage it started an admissibility hearing to determine if Mr. Niaz should remain in Canada. Admissibility hearings involving permanent residents are held before a member of the Immigration Division of the Immigration and Refugee Board. When the case was heard in 2008, the board member dismissed the case, holding that the law did not apply to cases involving misrepresentation beyond their own application for status.
 
On an appeal by the government in 2009, the Immigration Appeal Division reversed the decision, holding the new law applied to misrepresentation in any immigration proceeding. Fortunately for Mr. Niaz, that board member found sufficient humanitarian reasons to let him remain in Canada. Ms. Reyes was not so lucky. The same board member in her case decided she would not face any hardship if she returned to the Philippines. Her last hope was to the Federal Court for judicial review. In January this year, Justice Dolores Hansen upheld the decision, finding the board member’s interpretation of the law to be reasonable.
 
The Federal Court decision confirms the Border Agency’s power to start removal proceedings against permanent residents who make misrepresentations in any immigration matter. While the cases that have been decided so far have dealt with family class sponsorships, the law could be applied in other kinds of situations, including job offers for temporary workers, permanent residents and provincial nominees.
 
The Border Agency saw its immigration enforcement spending increase from $91-million in 2010-11, to $150-million in 2012-13.  The government plans to spend $140-million on enforcement in both of the next two years. The government sees this as part of its program to improve the integrity of Canada’s immigration and refugee programs, aimed at reducing the abuse of the refugee determination system, and combating immigration fraud and human smuggling. In 2012, the Border Agency removed about 18,800 persons from Canada, a 27-per-cent increase from 2009.
 
The increased enforcement fits the current government’s self-portrayal as being tough on crime and having a strong law-and-order approach. In the past three years the government introduced several amendments to immigration law under such subjectively named titles as the Faster Removal of Foreign Criminals Act and the Protecting Canada’s Immigration System Act.
 
Former immigration minister Jason Kenney touted the government’s initiatives in fighting fraud on numerous occasions. In July 2011, he announced measures by the government to combat citizenship fraud by increasing the number of citizens who would have their citizenship revoked, with a tip line set up in September that year. Last year he announced measures to address marriage fraud, and to increase cooperation with the United Kingdom, Australia and India to combat fraud in visitor and immigration applications.
 
The Border Agency has also involved itself with the controversial infotainment program, “Border Security: Canada’s Front Line,” which it views as a means of educating the public about its mandate to enforce immigration laws. Given the ongoing budgetary support, the Border Agency will continue its stepped-up enforcement action to remove unwanted persons from the country, including permanent residents who mislead immigration officials in any matter, those who take part in fraudulent marriages and those who lie about meeting the residency requirements for citizenship.
 
Misrepresentation is viewed as a serious matter attacking the integrity of the immigration system. Permanent residents who get caught committing such acts will face removal from Canada, unless they can show compelling reasons why they ought not to be removed. Few cases will be viewed with sympathy, either by immigration appeal judges or the public. These matters require strong, effective legal representation.

 

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by email at macintoshlaw@gmail.com.