Immigration lessons for employers

As the labour market tightens, and positions become tougher to fill, Canadian employers will increasingly look overseas to help fill openings. But immigration can be a tricky issue. One major pitfall employers will want to steer clear of is misrepresentations.

The Immigration and Refugee Protection Act (IRPA) contains a number of provisions dealing with misrepresentations made by foreign nationals or by other persons with respect to applications for immigration status.

Applicants, sponsors, employers and any other person who is a party to an application should be particularly careful to ensure no misrepresentation is made to the authorities. The spectre of potential liability is very real under the act.

In the recent case of Wang v. Canada, the Federal Court held that the broad language of s. 40 (1)(a) of the IRPA (see sidebar below) includes inadmissibility for misrepresentations made by a third party, even where the third party was not making it knowingly.

Xiao Qiong Wang came to Canada on a student visa. She married her husband several years before coming to Canada. Her husband, unbeknownst to her, was already married and had a son. When her husband applied for immigration status as an entrepreneur, Wang was included as an accompanying spouse. However, her husband’s previous relationship was never disclosed to immigration authorities.

Both Wang and her husband became permanent residents of Canada. Several years later, Wang applied for Canadian citizenship and, around the time of being interviewed, her husband told her he was previously married and had a son on his application for permanent residence.

As a result of the husband’s failure to disclose he was already married and had a son, an exclusion order was issued against him for directly misrepresenting a material fact and also against Wang for indirectly misrepresenting a material fact as the accompanying spouse. Wang argued she should not be held accountable for her husband’s misrepresentation, as she was unaware of it at the time of the application for residency in Canada. But the court rejected her argument.

In Wang the question became whether the language in s. 40(1)(a) of the IRPA, “indirectly misrepresenting or withholding material facts” included the situation of an applicant who was unaware of her husband’s misrepresentation.

After carefully examining the arguments, the court held that allowing a person to benefit from the misrepresentation of another would lead to a potential absurdity in that an applicant could directly misrepresent and his accompanying spouse could then not be removable from Canada if that person could argue she had no knowledge of it.

The court further held that the word “indirectly” can be interpreted to cover the situation where an applicant relies on being included in another person’s application, even though she did not know a misrepresentation was being made.

The court stressed in its decision that the purpose of the provision was to eliminate abuse. Although the decision seems harsh at first glance, its reasoning appears to be correct and in line with Parliament’s intent.

In Mendiratta v. Canada the court dismissed the judicial review application brought by a 65-year-old citizen of India who was the subject of a removal order. Raj Mendiratta obtained permanent resident status under humanitarian and compassionate grounds, stating she was a widow with no relatives outside Canada. She resided with her Canadian citizen daughter, her son-in-law and the couple’s two children.

After eight years she decided to return to India and spent more than five months there. During her stay, she resumed a relationship with her husband from whom she was separated. Upon her return to Canada, she became the subject of a report indicating she was inadmissible under s. 40(1)(a) of the act for directly or indirectly misrepresenting or withholding material facts to a relevant matter that induces or can induce an error in the administration of the act.

The authorities took the view Mendiratta, having previously indicated she was widowed when she applied for permanent resident status, sought to sponsor her husband in India, where she also had one son as well as two daughters.

Her record of landing indicated her marital status as widowed and the supplementary information provided to establish the existence of humanitarian and compassionate grounds also made extensive references to the fact she had no other relatives in her country of origin. The Immigration Appeal Division upheld the validity of her removal order. The Federal Court reaffirmed the principle that the obligation to disclose information accurately ultimately rests on the applicant.

In Huang v. Canada, the Federal Court granted judicial review to an investor applicant from China who had made contradictory statements in his application for permanent residence concerning money.

Justice Sean Harrington of the Federal Court disagreed with the proposition that, while a finding of misrepresentation is subject to a patent unreasonableness standard of review, the “inducement” portion of s. 40 may be reviewed on a reasonableness simpliciter standard.

Fa ha Huang had applied to the Newfoundland and Labrador Provincial Nominee Program. Visa officers were concerned that his financial interests in a Chinese company were not readily verifiable. Huang submitted a verification report from an auditor confirming he had an 80 per cent interest in his construction company.

However, the document indicated the commercial concern was a “sole proprietorship,” a contradictory characterization of the venture. Apparently, the visa officers attempted to contact the audit firm, which first claimed the report was a fraud and that it had no records of it. But it later recanted and indicated it had been lost.

This heightened the concern of the visa officers about Huang’s business activities. Justice Harrington referred to the evidence in the case, which suggested difficulties with the definition of “sole proprietorship” and “corporation” under Chinese law, and he also chastised the visa officers for lack of followup and further inquiries to clear their doubts. Despite the positive outcome for Huang, it must be cautioned that it appears to have been decided solely on its facts. In addition, the decision is very brief and does not appear to be clearly reasoned.

Counselling or aiding misrepresentation, directly or indirectly, or withholding material facts relating to a relevant matter that “induces or could induce an error in the administration of the act” is an offence and can lead to very serious consequences for those found guilty of a breach.

The matter arose in R. v. Tongo, a case dealing with organizing the entry of illegal immigrants into Canada, where the provisions of s. 127 of the IRPA were considered. In that case, a British Columbia Provincial Court judge held that the IRPA establishes a number of general offences to discourage persons from engaging in activities such as employing illegal migrants or withholding relevant information.

The accused pleaded guilty to misrepresentation of a material fact: concealing the presence of three Chinese illegal migrants on board a ship. Although the case dealt with transporting illegal migrants, it is noteworthy that the court chose to make a general statement endorsing Parliament’s policy goal of attempting to curtail illegal immigration and misrepresentation and combating organized crime and human smuggling.

In R. v. Parmar, Karmjeet Parmar was charged under s. 127 (b) of IRPA that she falsely told Canadian immigration officers that she wished to immigrate from India to Canada to be with her husband, while in reality she only wished to come to Canada to visit.

Apparently, as soon as she arrived in Canada, she and her relatives were subjected to demands for financial payment by her husband in exchange for sponsoring her as a dependent. Parmar was convicted at trial and sentenced to four months imprisonment.

However, the conviction was quashed on appeal by the Alberta Court of Queen’s Bench, based on its interpretation of the evidence presented at trial. In words of the court, “it could not be determined who was telling the truth.” Despite the ultimate acquittal, the case should be a warning sign to those who misrepresent their true intentions when applying for any type of visa.

What lawyers need to do

Lawyers and their staff should be particularly cautious and ensure they do not participate, knowingly or unwittingly, in assisting an applicant or a third party to an application (such as an employer or a sponsor) in making any misrepresentation or withholding any material facts, or they may find themselves embroiled in potential litigation or facing criminal charges. It remains to be seen how aggressive prosecutions will be in this area.

What employers need to do

Employers in particular should be cautious when assigning a foreign worker to perform specific duties within the organization. Section 124(1)(c) of the IRPA states that it is a contravention of the act to “employ a foreign national in a capacity in which the foreign national is not authorized under this act to be employed.”

It is therefore critical that employers who intend to reassign foreign workers to different duties or positions within the organization obtain legal advice prior to doing so, and take active steps to file the appropriate documentation to obtain changes to the terms and conditions attached to the work permit or labour market opinion, if one was obtained.

Applicants and their lawyers may find solace in the fact that the legislation recognizes a defence of “due diligence” and states that no one can be found guilty of an offence for a contravention if reasonable steps were taken to prevent it.

That situation arose in an obscure reported case in the Northwest Territories, R v. Perez, where a person who had an expired visitor’s visa and an application pending for permanent residence in Canada had also applied for an extension of a work permit, but had not received it before continuing his employment.

Immigration officers visited the workplace and the accused was charged with working without authorization, but was acquitted because the court recognized that he had “honest and reasonable belief” that he was not working without authorization. The court noted the worker took reasonable care in the circumstances to avoid committing an offence and, therefore, was not liable.

The misrepresentation provisions of the legislation highlight the duty of care and due diligence that applicants and their lawyers must exercise in the context of immigration representation. Those who grossly exaggerate the qualifications of potential applicants, or misrepresent their circumstances, financial records, documentary evidence, family status, and employment offered, or any other material fact, may expose themselves to liability and serious penalties. Exercising caution and obtaining the appropriate legal advice is the most prudent course of action in situations involving immigration applications.

For more information see:

Wang v. Canada (Minister of Citizenship & Immigration), 2005 CarswellNat 2150 (F.C.)

Mendiratta v. Canada, 2005 CarswellNat 524 (F.C.)

Huang v. Canada, 2005 CarswellNat 3925 (F.C.)

R. v. Tongo, 2002 CarswellBC 2657 (B.C. Prov. Ct.)

R. v. Parmar, 2005 CarswellAlta 271 (Alta. Q.B.)

R. v. Perez, 2002 CarswellNWT 97 (N.W.T. Terr. Ct.)

What the IRPA says

Section 40(1) of the IRPA specifically states that a permanent resident or a foreign national is inadmissible for misrepresentation:

(a) 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 this act;

(b) for being or having been sponsored by a person who is determined to be inadmissible for misrepresentation;

(c) on a final determination to vacate a decision to allow the claim for refugee protection by the permanent resident or the foreign national; or

(d) on ceasing to be a citizen under paragraph 10(1)(a) of the Citizenship Act, in the circumstances set out in subsection 10(2) of that act.

This provision is directed against an applicant attempting to misrepresent to gain any immigration status.

Section 40(2) allows the authorities to consider an individual to be inadmissible for a period of two years following the final determination of the application, after the misrepresentation is discovered and the decision communicated to the applicant:

“The following provisions govern subsection (1):

(a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of two years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced; and

(b) paragraph (1)(b) does not apply unless the Minister is satisfied that the facts of the case justify the inadmissibility.”

A different provision, but one that may affect all applicants more directly is found in s. 127 of IRPA which states:

“No person shall knowingly

(a) directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this act;

(b) communicate, directly or indirectly, by any means, false or misleading information or declarations with intent to induce or deter immigration to Canada

(c) refuse to be sworn or to affirm or declare, as the case may be, or to answer a question put to the person at an examination or at a proceeding held under this act.”

This broad language appears to be a deliberate attempt to encompass almost any form of misrepresentation or withholding or information by anyone, including an applicant, employer or third-party representative. However, the use of the qualifying word “knowingly” would suggest a high threshold to be met in any prosecution.

Sergio R. Karas is a certified specialist in Canadian citizenship and immigration law and vice-chair of the International Bar Association (IBA) Immigration and Nationality Committee and vice-chair of the Ontario Bar Association Citizenship and Immigration Section. He can be reached at [email protected] or (416) 506-1800.

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