The Federal Court brings some much needed sanity to misrepresentation appeals before the Immigration Appeal Division

The Federal Court brings some much needed sanity to misrepresentation appeals before the Immigration Appeal Division

By Joel Sandaluk / Partner, Immigration LawyerNou Yu was a visa student in Canada in 2004. Through friends, she became aware of a scheme by which she could marry a Canadian who would then sponsor her to Canada as a member of the family class in exchange for a sum of money. Although she had reservations, she agreed to this scheme and after paying an immigration consultant, married a Canadian who filed an application to sponsor her to Canada.In time, her doubts and feelings of guilt about her decision caused Ms. Yu to withdraw her application for permanent resident status and divorce her husband. She eventually she became a permanent resident of Canada through a legal immigration process, the Canadian Experience Class. After becoming a permanent resident, she began a long term relationship with a Canadian citizen who is now her common-law partner and the father of her two children. She has lived in Canada with her family ever since. Unfortunately, Ms. Yu’s past came back to haunt her and she was ordered deported for her misrepresentation. Ms. Yu appealed her case to the Immigration Appeal Division [IAD] but after finding that her misrepresentation was serious and that her actions undermined the integrity of the immigration system the IAD dismissed her appeal. In its decision, the tribunal went through a list of factors including Ms. Yu’s many years in Canada, her establishment in this country, her relationship with a Canadian common-law spouse, and the best interests of her Canadian children but found that all of those many factors could not outweigh the seriousness of her misrepresentation and her “questionable” expressions of remorse. That decision was set aside by the Federal Court of Canada, where the decision of the tribunal was heavily criticised for its focus on the applicant’s misrepresentation and reasoning that was in indicative of a closed mind and lacking even a shred of compassion. The Court held that the IAD’s decision was unreasonable because “the dominant focus throughout the decision on the Applicant’s marriage of convenience conduct caused the Member to be blind to the evidence produced on the request for humanitarian and compassionate relief.”Among the Court’s most meaningful comments were that:

[10] The Applicant, and the Applicant’s family, should not be condemned for the Applicant’s mistake without the most careful attention. I find that Member’s decision-making completely fails to adhere to this expectation. In the course of examining the evidence, the Member made it clear that the established negative perspective of the Applicant’s conduct would have an impact on the humanitarian and compassionate evaluation. Not only did the Member commit to this critical approach, but the opening to the evaluation itself clearly shows that the Member was blind to the real life impact that the approach would have.

Hopefully, this decision will be followed by others which will help to restore some balance to the Immigration Appeals Division’s consideration of removal order appeals based on misrepresentation.

1. Yu v. Canada (Citizenship and Immigration) 2017 FC 1088, at para 4.2. Yu v. Canada (Citizenship and Immigration) 2017 FC 1088, at para 10.

Nou Yu was a visa student in Canada in 2004. Through friends, she became aware of a scheme by which she could marry a Canadian who would then sponsor her to Canada as a member of the family class in exchange for a sum of money. Although she had reservations, she agreed to this scheme and after paying an immigration consultant, married a Canadian who filed an application to sponsor her to Canada.In time, her doubts and feelings of guilt about her decision caused Ms. Yu to withdraw her application for permanent resident status and divorce her husband. She eventually she became a permanent resident of Canada through a legal immigration process, the Canadian Experience Class. After becoming a permanent resident, she began a long term relationship with a Canadian citizen who is now her common-law partner and the father of her two children. She has lived in Canada with her family ever since. Unfortunately, Ms. Yu’s past came back to haunt her and she was ordered deported for her misrepresentation. Ms. Yu appealed her case to the Immigration Appeal Division [IAD] but after finding that her misrepresentation was serious and that her actions undermined the integrity of the immigration system the IAD dismissed her appeal. In its decision, the tribunal went through a list of factors including Ms. Yu’s many years in Canada, her establishment in this country, her relationship with a Canadian common-law spouse, and the best interests of her Canadian children but found that all of those many factors could not outweigh the seriousness of her misrepresentation and her “questionable” expressions of remorse. That decision was set aside by the Federal Court of Canada, where the decision of the tribunal was heavily criticised for its focus on the applicant’s misrepresentation and reasoning that was in indicative of a closed mind and lacking even a shred of compassion. The Court held that the IAD’s decision was unreasonable because “the dominant focus throughout the decision on the Applicant’s marriage of convenience conduct caused the Member to be blind to the evidence produced on the request for humanitarian and compassionate relief.”Among the Court’s most meaningful comments were that:

[10] The Applicant, and the Applicant’s family, should not be condemned for the Applicant’s mistake without the most careful attention. I find that Member’s decision-making completely fails to adhere to this expectation. In the course of examining the evidence, the Member made it clear that the established negative perspective of the Applicant’s conduct would have an impact on the humanitarian and compassionate evaluation. Not only did the Member commit to this critical approach, but the opening to the evaluation itself clearly shows that the Member was blind to the real life impact that the approach would have.

Hopefully, this decision will be followed by others which will help to restore some balance to the Immigration Appeals Division’s consideration of removal order appeals based on misrepresentation.

1. Yu v. Canada (Citizenship and Immigration) 2017 FC 1088, at para 4.2. Yu v. Canada (Citizenship and Immigration) 2017 FC 1088, at para 10.

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