Celebrating Success - Overcoming Misrepresentation
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by Rekha McNutt
Everyday the lawyers at our firm work tirelessly to help people with their immigration problems. The stakes are high, as are the stressors.
So, I think it is really important to highlight our successes. These are hard fought and the result of very skilled lawyers, who genuinely care about your case.
The cases we work on are often complex, and sadly more often than not the result errors (on the mild end) by prior representatives.
Last week I received a positive decision from the Immigration Appeal Division (“IAD”) on a misrepresentation appeal. My client was a permanent resident of Canada who had come about a decade ago. He risked losing it all and returning home because he failed to disclose a change in his marital status before he finalized his permanent residence.
He initially came to Canada as a visitor and did some volunteer work through his church, all across Canada for those less fortunate. He was told of the opportunity by his (to be) brother-in-law. He left behind a girlfriend in his home country.
He eventually got the support of an employer to get a work permit. He diligently worked and applied for permanent residence under the Provincial Nominee Class (“PNP”) in Manitoba. He had the assistance of someone pretending to be a licensed consultant and even operated a company portraying to the public as “immigration consultants”. This representative was recommended to the client by his church pastor, so he had no reason to doubt the representative’s competency or whether they were legally allowed to provide immigration services for a fee.
As the client waited for his permanent residence to be processed, he missed his girlfriend more and more. They discussed marriage, which the client brought up with his representative. This representative advised the client in writing via email that he had the choice of whether to declare his wife before he got his permanent residence. The representative recommended in writing that the client NOT disclose the change in his marital status. The representative told the client that he could sponsor his wife later, and that would be the best for everyone. The client listened, not knowing any better, and trusting someone he believed was a competent, authorized representative.
The client got his permanent residence. His wife was then in Canada as a visitor. They then learned that this representative was criminally charged, prosecuted and convicted for fraud.
The client wanted to sponsor his wife. He hired another immigration consultant, this time in Calgary, to help him with sponsoring his wife. This new consultant was told the whole story. The client advised him about how his first consultant had told him not to disclose his marital status, and this new consultant told him not to say anything because he would be in trouble for using an unauthorized consultant.
This new consultant was registered… you would think that this meant they would be aware of the law, regulations and consequences for the client. Based on what this consultant did, it is obvious they were oblivious to all of this. This new consultant advised the client to file an in-Canada sponsorship. At no point did they advise the client about the fact that he was barred from sponsoring his wife… FOREVER. I’ve written about this problem before - read about it here. There is a parallel section of the law that applies to in-Canada sponsorship applications.
Not only was that sponsorship application refused, obviously, but the client was written up for misrepresentation for failing to disclose his marriage. This allegation was legally well-founded. His request for immigration not to pursue the removal was refused. As such, the report was referred to the Immigration Division (“ID”) that issued a removal order because the report and allegations were valid in law. The client had an appeal right to the IAD, which (unlike the iD) has jurisdiction to consider humanitarian and compassionate factors.
We put in all of the evidence about the incompetent legal advice that the client received. This included news articles about the prosecution and conviction of the first fraudulent consultant. This also included filing reports against ICCRC for the negligent advice he received throughout.
Ultimately, there were significant H&C factors, including the four witnesses we called at the hearing. This included the client, his wife, the wife’s brother and his wife. Their new baby brought in significant best interests of the child factors. And we had good evidence about the struggles of the family left in the home country. Establishment in Canada was significant as well.
The appeal was contested by the Minister. We provided extensive oral submissions. Ultimately the decision was reserved until last week. My heart pounded as I saw it on my desk, so nervous to read it. This was such a sympathetic case. I was so thrilled when I saw that it was positive! Clients were as well.
This means the client keeps his PR status. It’s not the end of the road… He is still barred from sponsoring his wife. We have a plan… it won’t be easy but our work never is. I feel privileged to be trusted with these kinds of problems to solve and to be part of a team equipped to get it done.