IMMIGRATION DEPORTATION – Deferral of removal pending finalization of spousal sponsorship – Best interests of the child

Huang v. Canada (MPSEP), 2018 FC 446, Country: China, Barnes J. (April 25, 2018)

Our client was scheduled to be deported. His wife was a Canadian permanent resident and together, they were parents of a six year old boy.  We made a request for a deferral of his removal – based primarily on the principle of family unity and the prejudice to his young child arising from a possible lengthy separation. We asked the enforcement officer to allow him to stay until the finalization of his outstanding spousal sponsorship, but our request was denied.

We helped our client to seek the intervention of the Federal Court to stay his deportation.  The court was satisfied we had met the legal test for a stay of removal and the deportation was stopped in the interim while the case proceeded to judicial review. On judicial review, the Honourable Justice Barnes was not satisfied that the officer’s analysis adequately addressed the evidence bearing on the child’s best interests in this case.  It is significant that the court stated that the suggestion in the officer’s decision that the “the best interests of the child threshold could only be met with satisfactory evidence showing ‘irreparable and permanent separation’ vastly overstates the burden” (at para. 8). The relevant paras read:

[7]  I am not satisfied that the above analysis adequately addressed the evidence bearing on the child’s best interests in this case.  The likely lengthy separation of Mr. Huang from his child of tender years cannot be reasonably described on this record as routine or unexceptional.  I accept that a stronger argument could have been made about the financial and care-giving hardships faced by this family in the event of Mr. Huang’s removal.  However, there was evidence that the family was surviving on Ms. Lin’s modest income and repaying a relatively significant mortgage.  Mr. Huang was also looking after the child care responsibilities while Ms. Lin worked.

[8]  The suggestion in the Officer’s decision that the best interests of the child threshold could only be met with satisfactory evidence showing “irreparable and permanent separation” vastly overstates the burden.  There is no doubt that this separation would be prolonged and, therefore, hurtful to the child’s formative needs.  The lengthy separation of a parent from a child of tender years requires a far more nuanced assessment than this one. 

The Federal Court also noted that it is one thing for a deferral officer to limit the scope of a best interests analysis where the child’s interests have already been fully considered in an earlier review and in situations where this has not occurred.  Paragraph 9 reads:

[9]  It is one thing for a deferral officer to limit the scope of a best interests analysis in circumstances where the child’s interests have already been fully considered in an earlier review. It is quite another to conduct such a review where those interests have never been addressed before the proposed removal of a parent.  In this latter situation, the review must be reasonably robust.  Central to the exercise of that discretion must be a careful assessment of the length of the likely separation and the financial and emotional hardships that are expected to prevail over time.  In my view, the analysis done here was perfunctory and inadequate and, therefore, unreasonable.

The officer’s decision under review was set aside and sent back for re-determination.

To read the full case: https://www.canlii.org/en/ca/fct/doc/2018/2018fc446/2018fc446.html

MISREPRESENTATION- – Altered passport stamp-- Citizenship Act, s.22(1)(e.1)

Hoseinian v. Canada (MCI), 2018 FC 514, Grammond J.

Our client applied for Canadian citizenship. During the processing of her application, a document analyst discovered that an Iranian entry stamp on her passport had been altered. This raised doubts as to the duration of the applicant’s residence in Canada in the four years preceding her application. Our client provided additional evidence to show that she had, in fact, travelled from Canada to Iran on the date purportedly shown on the disputed Iranian entry stamp. But Citizenship and Immigration Canada refused her application for citizenship, alleging that she had made a material misrepresentation. She retained our firm to seek a judicial review.

The Citizenship Act does not define the concept of misrepresentation.  According to the Federal Court -  “[I]n the private law context, the tort of negligent misrepresentation is made out where, among other conditions, a statement is ‘untrue, inaccurate or misleading’…. This minimal requirement also applies in the immigration context” (at para. 9). See, for example, Wang, 2006 FCA 345. In the present case, the Federal Court considered the wording of s.22(1)(e.1) of the Citizenship Act. To constitute a misrepresentation, a statement must relate to “material circumstances,” and it must have the potential to “induce an error in the administration of this Act.” “Presenting a document that has been altered does not automatically create such a potential error” (at para. 10). The court stated (at para. 12):

 [12]  Thus, when immigration or citizenship officials find that a document was altered, they cannot conclude, on that basis only, that there was a misrepresentation. They must ask themselves whether the alteration conveyed false information that related to a circumstance that is material to the application before them (Koo v Canada (Citizenship and Immigration), 2008 FC 931 (CanLII), [2009] 3 FCR 446). In that inquiry, evidence showing that the information is true would be highly relevant.

In this case, the officer omitted to do this, but treated the altered Iranian entry stamp as conclusive and did not consider the additional evidence tendered. The officer’s decision was found to be unreasonable. “Most importantly, nothing in the record shows that the officer reached any conclusion as to the truthfulness of the information conveyed by the disputed entry stamp” (at para. 15). The application for judicial review was allowed, and the matter was sent back for redetermination by a different officer.

To read the full case: https://www.canlii.org/en/ca/fct/doc/2018/2018fc514/2018fc514.html?searchUrlHash=AAAAAQARd2VubmllICYgZ3JhbW1vbmQAAAAAAQ&resultIndex=1