Navigating the labyrinth of immigration channels

Making an immigration application involves a complex process; from choosing the category to apply under, to completing immigration forms and then dealing with the government officials making the decision on an application. In the past several decades the government has attempted to make the process more transparent and understandable, as the government has shifted the burden of completing applications onto applicants. The government’s attempts at making the process easy to understand haven’t always succeeded. Sometimes decisions are made that are difficult to understand or appear to have been made arbitrarily.

Ralph Watzke, a Canadian citizen, found himself in such a situation when he applied for a certificate of citizenship for his son Jeffrey. Jeffrey was born in the Philippines in about late 2005. What you would think would be a straightforward process turned into a seven-year struggle to have his son come to Canada. Mr. Watzke, acting on his own, initially applied to sponsor his wife (Jeffrey’s mother) and son as immigrants. He was told that since his son would be a citizen (as his father was Canadian at the time of the birth), he did not have to be sponsored as an immigrant, but dealt with as a citizen.

His wife’s application was processed and she came to Canada. Mr. Watzke had been told by the Canadian Embassy in Manila that he would have to undertake a DNA test for his son to prove that he was in fact his son. Mr. Watzke then applied in Canada for a certificate of citizenship for his son, hoping the decision would be made sooner than if done through the embassy in Manila. The office in Canada contacted the embassy in any case, and advised Mr. Watzke in 2009 that he would still have to obtain a DNA test for his son. Mr. Watzke felt the decision was discriminatory and wrote back to complain about it. Correspondence was exchanged over several years. In 2011 the office formally refused the certificate of citizenship for the son. Mr. Watzke applied to Federal Court to review the decision.

In January, 2014, Justice Russell concluded that the decision to refuse the certificate was unreasonable. The government had requested the DNA test because Jeffrey was born at home, not in a hospital. It did not accept formal government birth documents filed in the Philippines as proof that Mr. Watzke was the father. The government gave no rationale why a home birth would have resulted in the requirement for a DNA test. In deciding the decision was unreasonable, Justice Russell noted “There is no evidence that the reason for this requirement was ever explained to the Applicants or that it was publicly available in the policy manual or elsewhere.” The court ordered that the decision be reconsidered and suggested that the government deal with it in a timely way.

Not all applicants are as successful or as determined as Mr. Watzke in pursuing issues. The case points out the complexity of applying for immigration and citizenship status, especially in the past two decades as immigration rules have become more complex and the number of ways to apply has increased to the dozens.

The immigration law recognizes three categories of immigrants – involving families, economic immigrants and humanitarian immigrants. Finding which category to apply under is the first step in the process of moving to Canada. The second step, which can be as difficult or more so to navigate, is understanding the labyrinth of procedures and forms necessary to make an application. Some categories require up to a dozen forms to complete.

The Immigration Department has 10 different manuals, some of which have more than two dozen chapters, to guide the government officials administering each category. This does not include dozens of operation bulletins issued yearly, or the manuals and guidelines used by provincial immigration officials. While the Department publishes guidebooks, they do not easily describe the process or address all the issues that may arise in an application.

For many applications, the final decision is made at a Canadian Embassy overseas near where the potential immigrant lives. Each office has to follow the guidelines and department manuals in processing the application. However, there may be many variations in dealing with an application, depending on the country where the application is made. These issues are not dealt with in any specific immigration manual and no public guidance is published on how an individual office may deal with issues specific to the applicant’s country of origin.

In Mr. Watzke’s case, he found out that Manila has issues about the reliability of government forms as proof of a child’s parentage. Fortunately for him, the Federal Court found that the visa office’s inability to explain why the documents were not reliable in his case was unreasonable. When setting out on a journey, knowing how to navigate the route is important. Sometimes you need a good pilot to help navigate difficult or unknown waters.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by e-mail at macintoshlaw@gmail.com.

Perils involved in citizenship adoption applications

When then-immigration minister Diane Finley announced in 2007 the start of changes to the Citizenship Act allowing children adopted abroad by Canadian citizens to obtain citizenship, the new law reduced the differences in treatment between children adopted abroad and children born abroad to a Canadian parent.
Applicants would have to prove the adoptions were legal and genuine, and were not entered into mainly for acquiring status in Canada - a challenge Kulwinder Kaur faced when she applied for citizenship as an adoptee several years ago.

Ms. Kaur’s maternal aunt (massi) and her husband purportedly adopted her in 2002 in Punjab when she was 13 years old. Her aunt in Canada had two sons. She and her husband wanted a daughter. They discussed their desire with her sister and brother-in-law, who agreed to give Kulwinder Kaur up for adoption.
Indian adoption law sets rules as to who may be adopted and who may adopt. Unlike Canada, where all provinces require court approval for adoption, the law in India allows people to carry out their own adoption. The main formality is a giving and taking ceremony, when the child is physically handed over to the adopting parents by the natural parents.

The aunt and uncle thought they had gone through all the formalities necessary to adopt Kulwinder Kaur. A giving and taking ceremony was performed. Notice of the adoption was published in a newspaper. To provide written proof of their action, the aunt and uncle, together with the natural parents, registered a deed of adoption with a court in India.

Unfortunately for Kulwinder Kaur, her new parents took no action to bring her to Canada until 2010. She remained in India, though the new parents appointed a guardian to be responsible for her, while they provided support from Canada.

When Kulwinder was 21 years old, she applied for Canadian citizenship based on the new rules that came into effect in 2007. In 2012 a citizenship officer at the Canadian High Commission in New Delhi interviewed her, along with the guardian and her natural parents. She failed to prove to the officer that a giving and taking ceremony was performed, and that her adoption was genuine. Her only remedy was to apply for judicial review of the decision. That review was held before the Federal Court in Vancouver last month. Justice Michael Phelan, who heard the review, rendered his decision within a week, upholding the officer’s refusal.

A judicial review is a limited form of appeal. Justice Phelan could only consider the evidence that was considered by the citizenship officer. He could only overturn the decision if he found the officer’s conclusions were unreasonable. Based on the evidence before the officer, Justice Phelan decided the decision was reasonable.

When interviewed by the officer in New Delhi, neither Kulwinder Kaur nor the others gave clear evidence that a ceremony took place. The officer was not satisfied about explanations for the lack of visits by the adopting parents and communication with Kulwinder Kaur, and why it took eight years before taking action to have her come to Canada.

The law holds that an applicant must prove they qualify for citizenship. An officer making a decision is not required to find a way for someone to qualify. An uninformed applicant is at a disadvantage, not knowing what evidence is important to show an officer, especially when it deals with legal issues like a giving and taking ceremony. For example, it is the usual practice in Punjab, when registering a deed of adoption, to have all the parties present, including the child being adopted, who will be physically given and taken before the court registrar.

Had Kulwinder Kaur been aware of the importance of this, she or one of the other persons could have told the officer. What is unfair is that the officer probably did not ask about it, though the officer should have been aware of the practice. The Immigration and Refugee Board upheld the Indian court practice as proof of a giving and taking ceremony over 17 years ago (see [1996] I.A.D.D. No. 1032 (QL)).

While Kulwinder Kaur may have proven that she was properly given and taken, the lengthy delay in joining her adoptive parents raised serious questions about the adoption’s genuineness. Getting good advice before starting on such an important matter can help avoid disappointment later on. As shown in this case, an inadequately prepared application cannot be cleared up after the decision is made. 

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by email at macintoshlaw@gmail.com. 

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Immigration enforcement snares misleading residents

When Janilee Reyes, a permanent resident, married in the Philippines in January, 2008, she probably did not consider that it would lead to her removal from Canada. However, earlier this year the Federal Court confirmed a decision to remove her from Canada. What had she done wrong? She had made a misrepresentation when applying to sponsor her husband to Canada, making her removable.

Before June, 2002, a permanent resident could only be removed for misrepresentation if it related only to receiving their own permanent resident status. Since then, under the current immigration law, the grounds for removing a permanent president include misrepresentation for any immigration matter.

It took about six years before the Canada Border Services Agency took someone to court under the new law, about the same time Ms. Reyes committed her misrepresentation. When she married in January, 2008, Ms. Reyes signed a false declaration claiming that she had lived with her intended husband for five years in order to expedite her marriage by avoiding the need to obtain a marriage licence. That action made her marriage void from the start, so she was not entitled to sponsor her husband to Canada when she submitted an application for him in March, 2008.

A month after Ms Reyes filed her sponsorship, the Border Agency brought Fakhar Niaz before the Immigration and Refugee Board to remove him for failing to disclose a bigamous marriage. He had married a second wife in Canada after he marrying his first wife in Pakistan, who he subsequently applied to sponsor to Canada.

When the Border Agency learned of the second marriage it started an admissibility hearing to determine if Mr. Niaz should remain in Canada. Admissibility hearings involving permanent residents are held before a member of the Immigration Division of the Immigration and Refugee Board. When the case was heard in 2008, the board member dismissed the case, holding that the law did not apply to cases involving misrepresentation beyond their own application for status.

On an appeal by the government in 2009, the Immigration Appeal Division reversed the decision, holding the new law applied to misrepresentation in any immigration proceeding. Fortunately for Mr. Niaz, that board member found sufficient humanitarian reasons to let him remain in Canada. Ms. Reyes was not so lucky. The same board member in her case decided she would not face any hardship if she returned to the Philippines. Her last hope was to apply to the Federal Court for judicial review. In January this year, Justice  Hansen upheld the decision, finding the board member’s interpretation of the law to be reasonable.

The Federal Court decision confirms the Border Agency’s power to start removal proceedings against permanent residents who make misrepresentations in any immigration matter. While the cases that have been decided so far have dealt with family class sponsorships, the law could be applied in other kinds of situations, including job offers for temporary workers, permanent residents and provincial nominees.

The Border Agency saw its immigration enforcement spending increase from $91-million in 2010-11, to $150-million in 2012-13.  The government plans to spend $140-million on enforcement in both of the next two years. The government sees this as part of its program to improve the integrity of Canada’s immigration and refugee programs, aimed at reducing the abuse of the refugee determination system, and combating immigration fraud and human smuggling. In 2012, the Border Agency removed about 18,800 persons from Canada, a 27-per-cent increase from 2009.

The increased enforcement fits the current government’s self-portrayal as being tough on crime and having a strong law-and-order approach. In the past three years the government introduced several amendments to immigration law under the such subjectively named titles as the Faster Removal of Foreign Criminals Act and the Protecting Canada’s Immigration System Act.

The former Immigration Minister, Jason Kenney,  touted the government’s initiatives in fighting fraud on numerous occasions. In July, 2011, he announced measures by the government to combat citizenship fraud by increasing the number of citizens who would have their citizenship revoked, with a tip line set up in September that year. Last year he announced measures to address marriage fraud, and to increase cooperation with the United Kingdom, Australia and India to combat fraud in visitor and immigration applications.

The Border Agency has also involved itself with the controversial infotainment program “Border Security: Canada’s Front Line,” which it views as a means of educating the public about its mandate to enforce immigration laws. Given the ongoing budgetary support, the Border Agency will continue its stepped-up enforcement action to remove unwanted persons from the country, including permanent residents who mislead immigration officials in any matter, those who take part in fraudulent marriages and those who lie about meeting the residency requirements for citizenship.

Misrepresentation is viewed as a serious matter attacking the integrity of the immigration system. Permanent residents who get caught committing such acts will face removal from Canada, unless they can show compelling reasons why they ought not to be removed. Few cases will be viewed with sympathy, either by immigration appeal judges or the public. These matters require strong, effective legal representation.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by e-mail at macintoshlaw@gmail.com.

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Parliament and Federal Court fiddle while conflicting residence tests burn

Lawyers have known for years the unfairness of the three disparate tests applied by citizenship judges in deciding whether an applicant meets the residency test for citizenship under section 5 of the Citizenship Act. The inequity of the situation was recently highlighted in a decision handed down by Chief Justice Crampton of the Federal Court. In Huang v Minister of Citizenship and Immigration, 2013 FC 576, the Chief Justice said, “This case is yet another example of why something needs to be done to address the unacceptable state of affairs concerning the test for citizenship in this country.” His remarks are slightly more temperate than the comments of Justice Muldoon, who, as early as January, 1998, in Re Ten, 1998 CanLII 7296 (FC), said the situation created “a scandalous uncertitude in the law.” The irony of Justice Muldoon’s comment is that he helped create the incertitude in the law.

The scandalous situation involves the interpretation of “residence” in paragraph 5(1)(c) of the Citizenship Act. That provision requires that a citizenship applicant have three years of residence in Canada within the four years before applying. The term is not defined in the law, so it was left to Federal Court judges, on appeals from citizenship judges, to determine what the word meant. In 1978, in Re Papadogiorgakis, [1978] 2 F.C. 208, 88 D.L. R. (3d) 243, then Chief Justice Thurlow decided residence meant where an applicant had centralized his mode of living. In 1992, Justice Reed decided in Re Koo, [1993] 1 FC 286, that residence was where an applicant regularly, normally or customarily lived. Finally, in 1993 in Re Pourghasemi (1993) 62 F.T.R. 122, Justice Muldoon, certain his interpretation was correct and the others were, as he later described,  “ignoring the law,” decided residence meant physical presence. Comity, or unity of judgement in the Federal Court on the issue, has since yet to be found.

From that point onward citizenship judges have had three different standards to choose from. As new judges are appointed, they fall into one school of interpretation or another and any applicant with less than three years physical residence is left with the randomness of which judge they appear in front of. Relief through Federal Court was uncertain, depending on which school of thought the judge hearing an appeal sat in.

Normally an appeal court could sort out conflicting decisions. However, the Federal Court has the last word on the matter as the Citizenship Act expressly prevents an appeal from that court. So long as judges of the Federal Court hold conflicting opinions on the issue, applicants before a citizenship judge face unequal treatment under the law, depending on which judge decides their fate. Hence Chief Justice Crampton’s plea that Parliament should amend the Citizenship Act to expressly define residence. However, the government has attempted twice to change the law, in 1998 and 2010, without success.

Beside an amendment by Parliament, Chief Justice Crampton suggested that a citizenship judge bring a reference to the Federal Court under subsection 18.3(1) of the Federal Courts Act. That could be appealed to the Federal Court of Appeal, which could finally settle the different interpretations in the Federal Court that have lasted for the past 20 years. I would be surprised if a citizenship judge took the initiative to start such a reference.

I suggest it may be possible for an applicant to seek a remedy by means of judicial review through a provincial superior court or possibly the Federal Court, following the Supreme Court of Canada decision in Kourtessis v. MNR, [1993] 2 SCR 53. The court upheld a judicial review of a search warrant, from which the Criminal Code allowed no appeal, where a Charter right is at stake and no other effective remedy is available for vindicating it. Citizenship applicants are denied due process under section 7 of the Charter of Rights and Freedoms  by the unequal treatment of law due to conflicting decisions. An appeal to Federal Court under the Citizenship Act does not provide an adequate remedy. If the review court accepts jurisdiction, an appeal could lie to a higher court that would settle the issue once and for all. Of course, all of this depends on finding an applicant willing and able to take their case through the courts. It is an point worth giving further consideration.

Government gives second chance to take citizenship test

Citizenship and Immigration Minister Jason Kenney announced Monday changes to test rules for citizenship applications in hopes of reducing the growing backlog of applicants awaiting approval. Under the changes, applicants who had failed the required knowledge test will be given a second opportunity to write the exam, instead of awaiting a retest before a citizenship judge.

Under the Citizenship Act applicants for citizenship must pass a language test and a knowledge test. The tests are administered by a citizenship officer. If failed, applicants have to redo the tests before a citizenship judge. The Minister also announced that it will approve family members on their own merit. Previously, when one member failed a test, all the other family members would have to wait for the one member to pass the test before allowing them to continue on the process. The next step after passing the tests is an oath ceremony before a citizenship judge, at which time the applicants are formally granted Canadian citizenship.

According to the National Post, there is currently a backlog of 350,000 citizenship applications, with waits up to 29 months for a final hearing before a citizenship judge in Montreal and Vancouver.  The government processes up to 200,000 citizenship applications a year. Under new procedures, applicants who fail the knowledge test will be informed of the decision immediately and given a chance to rewrite the exam within four to eight weeks. The new procedure will apply retroactively to persons who have already failed the test.

The policy of treating family members separately is a belated recognition of the legal fact that under the Citizenship Act, each spouse has their own right to a decision that is not dependent upon the other spouse. Treating them together was an administrative practice and an unnecessary hurdle, inconsistent with the law. Prior to the change, an applicant could write to separate their application, usually providing a compelling reason why they should be treated separately. That will no longer be necessary and it avoids the burden of applicants applying to Federal Court for an order to compel a separate decision.

Part of the increased delay in processing applications has been due to the government’s crackdown on fraudulent applications by applicants who do not meet the residency requirement under the citizenship rules. In the past year the government has sent out detailed residency questionnaires to more than 20,000 applicants, to assess whether or not they meet the qualifications. The residency test is not settled in law and there are many factors, beside physical presence in Canada, that a citizenship judge may consider before deciding if an applicant be granted citizenship. Failing approval from a citizenship judge, an applicant may appeal the refusal to the Federal Court.

I provide advice or assistance with completing a citizenship application, particularly if you are concerned about meeting residency requirements. Early assistance with an application may save time and money, and avoid future court applications to determine your right to obtain citizenship.

William Macintosh is an immigration and citizenship lawyer, with experience since 1984. He may be contacted at 778-714-8787 or by e-mail at wjmacintosh@hotmail.com.

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