CITIZENSHIP AND IMMIGRATION
Exclusion and Removal
Removal of Permanent Residents
Judicial review of Immigration and Refugee Board, Appeal Division (IAD) decision sustaining exclusion order for indirect misrepresentation, determining insufficient humanita-rian and compassionate considerations to justify special relief —Applicant Chinese citizen, Canadian permanent resident who came here in 1996 on student visa—Husband applied to immigrate in entrepreneur category, included her in applica-tion as accompanying spouse—Landed September 10, 1998, she gave birth March 2, 1999—Applicant applied for citizenship, told to bring to interview any documents on prior marriages—Learned for first time husband previously married, had son—Upon investigation, was determined husband made material misrepresentation by failing to disclose marriage, child, when applied for permanent residence—After admissi-bility hearing, exclusion orders issued against husband for directly misrepresenting material fact, and against applicant for indirectly misrepresenting material fact as accompanying spouse—IAD considered change in language in Immigration and Refugee Protection Act, (IRPA) from Immigration Act used to catch dependants in misrepresentations by principal applicants—Former Act, s. 27(1)(e) read “was granted landing by reason of . . . any fraudulent or improper means or misrepresentation of any material fact, whether exercised or made by himself or by any other person”; under IRPA, s. 40(1)(a) one is inadmissable 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”—Under former Act, knowledge of misrepresentation by dependant unnecessary—Mohammed v. Canada (Minister of Citizenship and Immigration), [1997] 3 F.C. 299 (T.D.) holding mens rea requirement should not be read in—IRPA makes no reference to misrepresentation by any other person, new language is “directly or indirectly”— Not immediately apparent “indirectly” means misrepresen-tation by another but no other logical interpretation— Otherwise, result could be division of families or abandonment of dependants here—Board wrote that while language used in IRPA might not be obvious, could not be concluded Parliament intended dependants not be caught by principal applicant’s misrepresentations—At landing, husband still married to first wife, so applicant not sponsorable dependant, would not have been granted landing as such—Turning to discretionary relief, Board gave list of factors considered, added that exercise of discretion had to be consistent with Act’s objectives, which included maintaining integrity of immigration system in face of potential immigrants’ misrepresentations—Board found husband’s misrepresentations very serious, as related to marital status, family composition, had direct bearing on landing approval— Husband not having spent much time here since 1998, visits applicant, child three to five times per year—But applicant had demonstrated establishment by eight-year residency, taking English courses, re-entry to workforce, involved in church, volunteers in community, has support network in Canada—As for hardship if applicant returned to China, Board found no evidence of adverse country conditions there, would benefit from family support—Circumstances not supporting family reunification objective—As to best interests of child, as applicant professional opera singer, husband pianist, could afford to send daughter to private school—She could adapt to life in China following adjustment period— Application denied—Board not erring in finding indirect misrepresentation—Initial reading of s. 40(1)(a) appears to support argument it does not apply to misrepresentation by others, but that would lead to potential absurdity and it can be interpreted to apply to applicant, such interpretation finding support in clause 40 of explanatory clause-by-clause analysis of Bill C-11 (now IRPA): “This section is similar to provisions of the current act concerning misrepresentation by either permanent or temporary residents but modified those provisions to enhance enforcement tools designed to eliminate abuse”—Board’s interpretation of provision not adding words to statute—Board not erring in not dealing with applications separately—Board apparently aware of differences in circumstances between applicant, husband—Not for Court to reassess weight placed on misrepresentation as opposed to positive factors in applicant’s favour—While unfortunate applicant had to pay price for husband’s misrepresentation, she had fallen afoul of s. 40(1)(a)—Question certified as to interpretation of s. 40(1)(a)—Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 40(1)(a)—Immigration Act, R.S.C., 1985, c. I-2, s. 27(1)(e).
Wang v. Canada (Minister of Citizenship and Immigration) (IMM-5815-04, 2005 FC 1059, O’Keefe J., order dated 3/8/05, 26 pp.)