At Canadian Fraud News, we report on decisions issued by Canadian Courts related to fraud, that are not reported in the mainstream media, and that contain legal issues the Canadian public and fraud recovery experts should be aware of. The following is one such story.
Background
Jian Zheng LIU (the “appellant”) who is a 59-year-old citizen of China who immigrated to Canada in 2006 as a skilled worker. He immigrated with his wife and his dependent son. The appellant stayed in Canada just over one week after becoming a permanent resident. He says he could not find employment as a geological engineer because of his poor English language skills and had to return to China to look after his elderly father.
His wife and son stayed in Canada. When it was time to renew his permanent resident card the appellant knew he only spent 150 days in Canada in the preceding five years. He also knew he would not meet his residency obligations. He hired an immigration consultant by the name of Sunny Wang to renew his permanent resident card. In hiring Mr. Wang, the appellant became a participant in a large-scale immigration fraud aimed at obtaining permanent resident cards for permanent residents of Canada who did not spend the required period in Canada.
Mr. Liu came to the attention of Canadian immigration authorities in 2012 when his travel documents were found in the offices of Mr. Wang and New Can Consultants (Canada) Ltd. “New Can Consultants” during the execution of a search warrant during the criminal investigation of Mr. Wang.
Fraud in connection with New Can Consultants Ltd.
Sunny Wang and the New Can Consultants group, helped permanent residents renew their permanent status cards when they did not meet their residency obligations I.E remaining within the country for a specific amount of days, finding work matching their label of skilled worked (as was the case with Mr. Lui.
The firm assisted clients in fraudulently obtaining their permanent residency status by altering passports or copies of passport to show that the clients were in Canada when they were not, falsifying employment records to show that the clients worked for a Canadian corporation when they did not and, misrepresenting the residence of clients by making representations as to their address and telephone numbers when the clients did not reside there. False stamps were placed on passports, a corporation controlled by Wang would enter into employment agreements with clients and would pay the clients a salary and deduct income tax, EI and CPP with funds provided by the clients.
Wang ran a sophisticated fraud scheme that involved him giving out false Canadian addresses and telephone numbers that he had acquired over the years. The Fraud involved activities in Canada and in China, an elaborate organization and several consultants. Approximately 1,200 clients paid about $10 000 for the fraudulent immigration services between 2006 and 2014.
Mr Liu’s Misrepresentation
Mr. Liu retained Mr. Wang to apply for his permanent resident card in 2010. On his permanent resident card application, Mr. Liu indicated he had been absent from Canada for a total of 707 days. An investigation revealed that his passport had been altered to hide most of his absences from Canada. It was also revealed that Mr. Liu provided Immigration Canada with a fictitious address.
The ID found the appellant to be inadmissible for misrepresentation under paragraph 40(1)(a) of the Immigration and Refugee Protection Act (the “Act”).
Issues
The issue before the court of justice is not whether the claims of exclusion and possible deportation are valid, Mr. Liu does not challenge the legal validity of the exclusion order and the justice believes the removal order is valid.
But in his decision, the Justice takes umbrage with: whether the appeal should be allowed on the basis that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case, taking into account the best interests of any child directly affected by the decision.
Decision
“I find the removal order made on November 18, 2016, to be legally valid. Also, based on the evidence before me and on a balance of probabilities, taking into account the best interests of a child directly affected by the decision, I find there are sufficient humanitarian and compassionate considerations to warrant special relief in light of all the circumstances of the case. The appeal is allowed.”
Legislative provisions
The following provisions of the Act are relevant to this appeal:
40(1) Misrepresentation — 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;
Analysis
“The appellant, his wife and his son testified at the hearing through an interpreter. He provided documentary evidence. I have considered the documents in the Record, the witness’s testimonies, the documents provided by the appellant and the respondent and the parties’ submissions.”
Both councils have concluded that the principal issue in this appeal is balancing the act of misrepresentation in connection with the IRPA and the submission of the appeal on the grounds of humanitarian and compassionate relief. This appeal is a very careful balancing act between these two factors.
At this hearing, the appellant conceded the misrepresentation. He testified and explained he arrived in Canada in 2006 as a skilled worker (geological engineer) and remained in Canada approximately ten days. He claims he tried to find work in Canada but he could not because of his language skills. The Justice puts little weight on this explanation due to the face that Mr. Liu only spent 10 days within the country and is not consistent with a persistent job search.
He spent 150 days in Canada in the next five years which is a significant shortfall to his residency obligations. His permanent resident card expired in February 2011. He hired Mr. Wang as a consultant in late 2010 to assist him with the renewal of his card. The appellant met the consultant and paid him $8,000 CAD to renew his permanent resident card. Although he testified he took full responsibility for his actions, the appellant qualified his role and said he signed blank forms and let the consultant deal with the application process. He testified that during his first meeting, he had a doubt on the legitimacy of the consultant’s methods in light of the large fee requested and he “wondered if he was going to use an appropriate way to obtain the documents.”
The appellant did not meet the consultant after their initial meeting. A new permanent resident card was issued to Mr. Liu and he was instructed to pick up his (and his wife’s) cards in Calgary where he was met by an employee of the consultant. He was instructed by this employee to provide a Calgary address that was not his. Mr. Liu was aware this was not his address. He testified he felt conflicted, on the one hand, he felt he should disclose the fraud to Canadian authorities and on the other hand he did not want to jeopardize his permanent resident status. He picked up his card, disclosed nothing and returned to China. He returned to Canada again in June 2011. Since June 2011 the appellant spent most of his time in Canada (approximately 4 out of five years in Canada). He has since renewed his permanent resident card on one occasion.
In considering whether to grant humanitarian and compassionate relief, the Justice can consider, among other things: the seriousness of the misrepresentation; the remorsefulness of the appellant; the length of time the appellant has been in Canada and the degree to which the appellant is established; the impact the appellant’s removal from Canada would have on the appellant’s family; the dislocation to that family and the support available for the appellant within the community; the hardship the appellant would face in the country to which he would likely be removed and; the best interests of any child directly affected by the decision.
The exercise of this discretion must be consistent with the objectives of the Act, including the need to protect the health and safety of Canadians and to maintain the security of Canadian society. In the context of a misrepresentation this includes maintaining the integrity of the immigration system and combating unfairness and threats arising from the potential errors in administration of the Act.
“I find the appellant’s misrepresentations to be very serious. The appellant knew or should have known he was involved in fraudulent activities. He paid an excessive amount of money to renew his permanent resident card, he had very little contact with the consultant and when he did receive his card, he was told to pick it up in a different province and to provide a false address. The misrepresentation is deliberate and sophisticated. It foreclosed investigation by an officer that the appellant did not meet his residency obligation. However, there is no evidence suggesting the appellant was aware of the large-scale fraud he was involved in. Still, the appellant was aware or he should have been aware he was renewing his permanent resident card by fraudulent methods. This is serious. It undermines the integrity of the immigration system and breaches the duty of candour and integrity to the system. This weighs heavily against granting special relief.”
“The appellant testified as to his remorsefulness in a credible and genuine way. He said this was the worst mistake of his life and apologized to the Minister’s counsel, the panel and the Canadian public. He asked for the forgiveness of Canada, a country he says welcomed him and his family and treated them well. He says he is ashamed of the way he has acted in return. He humbled himself and bowed to the panel to apologize. He said this has served as an important lesson to him and to his family. He used this experience to remind his son to always act with integrity and honesty. I listened to his evidence and watched him during his testimony. I believe he is truly remorseful. He is not only sorry for the misfortune he has brought on himself and his family but his is ashamed of his behaviour vis a vis Canada. He displayed true remorse and expressed it unequivocally. This is a positive factor.”
The appellant’s wife, his son, his daughter in law and his grandson are all in Canada and they are all Canadian citizens. The appellant sold his property in China and he and his wife purchased a home in Canada in 2009. They now rent this home and live with his son’s family. The appellant’s wife has lived in Canada since landing in 2006. The appellant has lived predominantly in Canada since 2012 (the death of his father) and has resided exclusively in Canada since 2013. He is employed part time as a purchaser in his son’s business. The rest of his time he is his grandson’s primary care giver. He is sixty years old and has not been employed as full-time employee since 2003. He was a consultant in his field from 2003 to 2013 (in China) and has no job prospects or property in China now. The Justice has found that Mr. Liu has established himself in Canada well, especially since 2013. This is a positive factor.
The appellant’s wife testified. She has been a Canadian citizen since 2016. She echoed the appellant’s remorse and said they have used these legal difficulties to reinforce the value of honesty in their son who operates businesses in Canada. She explained she has chronic health conditions that require her to attend medical appointments. She relies on her husband to take her to appointments because she cannot drive. If her husband is removed from Canada she will rely on her son and her daughter in law for her care.
However, the evidence established that her son, who recently established a produce importation business, is consumed by work and her daughter in law who recently opened a dessert shop works very long hours. The appellant’s wife also works as the pastry chef in the desert shop every day. She has rarely returned to China since immigrating to Canada in 2006. She testified she could not return now because they have no home and no employment in China and she relies on the Canadian medical system.
“In short, if the appellant is removed, he and his wife will be separated. This is a closely woven family who live together as a multigenerational family, the appellant’s son and daughter in law rely on the support of the parents in the operations of their small businesses and in the conduct of their family life. I find there would be family separation hardship in this case. This is a positive factor in this appeal.”
“The country of removal in this case is China: the appellant would be returning to conditions that are not foreign or unusual given that he has spent most of his life there. There is little evidence to suggest the appellant would face hardship in China however I acknowledge he would face challenges re-establishing himself in a country where he no longer has work or assets. This is a neutral factor.”
The final consideration is the best interests of the appellant’s six-year-old Canadian-born grandchild. The appellant’s role in his grandson’s life is of primary importance. He is not a – glorified grandparent babysitter-but rather he is the child’s primary caregiver. He testified his son works all day at his produce import business and helps his wife (the appellant’s daughter in law) in the evenings when the dessert shop is busiest. The couple returns home very late. The appellant acts as a father. He wakes early each morning and he wakes his grandchild, gets him dressed and fed before he takes him to school.
While the grandson is in school, the appellant picks up produce for his son and he returns to pick up his grandson after school. He takes him to his extracurricular activities and lessons and prepares his evening meal. Later, he bathes him and puts him to bed. When the child wakes at night he calls his grandfather, when he is sick he calls his grandfather. Both the appellant’s son and his wife have testified that the appellant has been the primary caregiver of the child for the past 3 1/2 years. In addition, the child travelled and lived in China with his grandfather for a total of one year in 2013.
The child has been raised by his grandfather who acts as if he were his father since he has been an infant. Mr. Liu and the witnesses have all testified the child would be devastated if his grandfather were to be suddenly absent from his life. The Justice finds the appellant credible in his testimony related to his grandson, even if there was no independent evidence of this. If the appeal is denied and the appellant is removed, the child will lose his primary caregiver. In the circumstances of this case it is akin to the child losing his parent. The Justice appreciates the child will continue to be in a family environment with his parents and his grandmother but, in his view the removal of the appellant is not consistent with the best interest of this small child. This is a strong positive factor in this case.
“I have taken into consideration the option of a stay. Neither counsel addressed the possibility of a stay. A stay would do little to serve the objectives of the >Act. I find under the circumstances that a stay of the exclusion order is or is not appropriate.”
Conclusion
“I find the removal order made November 18, 2016, to be legally valid.”
“Taking into account all the evidence before me, I find the appellant has met the onus on him of establishing that special relief is warranted. I consider the misrepresentation to be very serious and as such I expect the humanitarian and compassionate factors to be correspondingly high.”
“Considering the very strong ‘parental bond’ the appellant has with his grandchild along with several other positive considerations such as the appellant’s establishment, his sincerely expressed remorse and the hardship on the family, I find that the positive factors outweigh this very serious misrepresentation. I find there are sufficient humanitarian and compassionate considerations to warrant special relief in light of all the circumstances of the case.”
The appeal is allowed.
NOTICE OF DECISION
The appeal is allowed. The decision of the officer made outside of Canada on the appellant’s residency obligation is set aside. The Immigration Appeal Division finds that the appellant has not lost his permanent resident status.
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