flash update – panel 8c misrepresentation duty to … · ....misrepresentation...result of...
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FLASH UPDATE – PANEL 8C
MISREPRESENTATIONDUTY TO DISCLOSE
CBA Immigration Conference (Gatineau, QC) May 13-14, 2011Gordon Maynard
DUTY TO DISCLOSE
Baro v. Canada (Minister of Citizenship and Immigration), 2007 FC 1299, per O’Reilly, J.
...an applicant ...has a “duty of candour” whichrequires disclosure of material facts. This dutyextends to variations in his or her personalcircumstances, including a change of maritalstatus.
DUTY TO DISCLOSE
Bodine v. MCI, 2008 FC 848, Russel, J.
...applicants cannot be expected to anticipate thekinds of information that immigration officials might be interested in receiving. As the IAD notedhere, "there is no onus on the person to discloseall information that might possibly be relevant".
One must look at the surrounding circumstancesto decide whether the applicant has failed tocomply with s. 40(1)(a).
DUTY TO DISCLOSE
Family composition
Marital Breakdown
Status (Permanent Resident or Visitor?)
DUTY TO DISCLOSE - FAMILY COMPOSITION
Pritpal Singh v. MCI, 2010 FC 378, perHarrington, J.
PR returns to India to marry former girlfriend, adopt her daughter, and sponsor them to Canada.
They had a 10 year affair while she was marriedto another man. Now she is divorced. A DNA test shows the child is theirs, conceived during the affair.
PR says he didn’t know child was his; not until the recent DNA test. He is reported for misrepresentation, for not disclosing the child in his application for immigration.
DUTY TO DISCLOSE - FAMILY COMPOSITION
per Harrington, J.
“..The Panel found that Mr. Singh was not credible. Even if he did not actually know he was Shilpa’s father, the circumstances, i.e. his long sexual relationship with Shilpa’s mother, while her husband was out of India, should, at the very least, have put him on inquiry. He had a duty of candour which required him to disclose, upon his arrival in Canada in 1993, the strong possibility that he had fathered a child.
this is OBITER.......JR granted with respect to refusal of HandC considerations – referred back for re-determination....
DUTY TO DISCLOSE – MARITAL BREAKDOWN
Jian Feng Chen v. MCI, 2010 FC 584, Harrington, J.
Chen was sponsored to Canada by his Canadian resident wife.
There was no wedding reception in Canada, on his arrival his wife was pregnant by another man, there were no sexual relations between them, the marriage lasted only a month or two and later Chen returned to China to marry (and sponsor) an old flame.
During sponsorship of his new wife, he was reported for misrepresenting that his first marriage was genuine.
DUTY TO DISCLOSE – MARITAL BREAKDOWN
per Harrington, J...
“This is a story of love gone wrong... “
“This is a classic case of viewing events through a rear-viewmirror...”
“How was he to know at the time of the marriage that hewould find his wife pregnant with another man’s child a yearlater?”
“...what material fact did he withhold? The only fact wasthat he had heard rumours. Even if they were true, it didnot mean that the marriage was necessarily at an end....”
DUTY TO DISCLOSE – MARITAL BREAKDOWN
XXX v. MPSEP, IAD No. TTTT, per YYYYY
PR marries and sponsors spouse from PRC.
He commenced a second relationship with a lady inCanada, after marrying his first wife. They started livingwith each other after visa issuance, but before hiswife’s landing in Canada. Before landing, he tells hiswife about relationship. She is angry, but parentsconvince them to try to solve problems.
Wife comes to Canada. Sponsor is still with otherwoman.
DUTY TO DISCLOSE – MARITAL BREAKDOWN
XXX v. MPSEP, IAD No. TTTT, per YYYYY
PR and wife live separately in Canada.
Wife attacks PR with meat cleaver one month afterlanding. PR is hospitalized and wife returns to China.
PR files for divorce, saying in petition that they havebeen separate and apart for more than one year and in affidavit that he intended to divorce his wife before shecame to Canada, but was reluctant to do because offamily pressures.
DUTY TO DISCLOSE – MARITAL BREAKDOWN
XXX v. MPSEP, IAD No. TTTT, per YYYYY
ID found misrepresentation.
IAD found misrepresentation. Sponsor knew that hisrelationship with wife was beyond repair, and he wasconsidering divorce, before she came to Canada. Hisfailure to report this change in circumstances wasmisrepresentation.
DUTY TO DISCLOSE – MARITAL BREAKDOWN
XXX v. MPSEP, IAD No. TTTT, per YYYYY
“Sponsor...was in denial about true nature of thesituation or in paralysis in terms of feeling that he coulddo anything but let her come to Canada...
“..circumstances surrounding misrepresentation canrelevant ...in assessing humanitarian andcompassionate considerations...”
“appellant...conflicted about his personal life. ....misrepresentation...result of confusion and guilt...”
DUTY TO DISCLOSE – STATUS – PR OR VISITOR
MCI v. Bjoern Hufer ID B0-01724, (April 2011)
Hufer came to Canada at age 5, as PR, and lived in Canada for 14 years.
Hufer returned to Germany at age 19 and lived there for 16 years. He returned to Canada 5 or 7 times, as a visitor on his German passport, to visit his mother forthree weeks or month.
Hufer entered in 2007, as visitor again, with intention of3 week visit, and looking at job market. On entry he wasnot questioned as to status or residence history. He stayed.
In 2011 he was taken to inquiry for misrepresentation, for notdisclosing on entry that he was a PR, or residence history.
DUTY TO DISCLOSE – STATUS – PR OR VISITOR
MCI v. Bjoern Hufer ID B0-01724, (April 2011)
per Leanne King...
“There is absolutely nothing about Mr. Hufer’scircumstances that indicates to me there would havebeen anything bringing to his consciousness the concept that he had to spontaneously disclose..thathe was a permanent resident here.”
DUTY TO DISCLOSE – STATUS – PR OR VISITOR
MCI v. Bjoern Hufer ID B0-01724, (April 2011)
per Leanne King...
..”there was nothing to cause Mr. Hufer to start thinking more deeply about the very technical definitions and consequences of being considered by an Immigration officer either a visitor or a resident, which is what would have to have occurred for a duty of candour to arise in his situation, for him to have some obligation to state spontaneously, volutarily making declarations to Immigration officers about his life plans and what was going on with him in his personal life with respect to...”
DUTY TO DISCLOSE
Misrepresentation is a question of fact.
The duty to disclose depends on
Questions asked, Material facts arising or changing, and Surrounding circumstances.
There is no spontaneous duty to disclose allinformation that might be relevant.