Federal Court Success re MPNP and Misrepresentation

Congratulations to our client Ievgen Agapi, a truck driver from Ukraine, and all the supporting people who assisted with this case. Justice Ahmed of the Federal Court of Canada agreed with our arguments that the Visa Officer in Kiev failed to consider whether the alleged misrepresentation was honestly and reasonably made. Click here to read the full decision.

This is a significant decision in the jurisprudence of misrepresentation, as well as the processing of MPNP applications.

In the words of Justice Ahmed:

14]  The Applicant points out that section 40 of the IRPA does not apply to misrepresentations made honestly by an applicant who reasonably believes they did not withhold material information (Medel v Canada (Minister of Employment and Immigration)[1990] 2 FC 345Baro v Canada (Citizenship and Immigration)2007 FC 1299 (CanLII) at para 15, and Goudarzi v Canada (Citizenship and Immigration)2012 FC 425 (CanLII) at para 33). The Applicant submits that his response to the procedural fairness letter provided evidence that this exception applies to his alleged misrepresentation; he explained that the knowledge of the potential fraud was beyond his control and in his view he reasonably and honestly believed that he was not misrepresenting any material facts. Despite his response to the procedural fairness letter, the Applicant submits the Manager failed to consider whether any alleged misrepresentation was honestly and reasonably made.

[15]  The Respondent submits that the Applicant is merely “blaming” a third party for his misrepresentation and argues that efforts to get the original results were not before the decision-maker. The Respondent acknowledges that there is a “narrow exception” for innocent misrepresentation, but reiterates that it only applies in exceptional and narrow circumstance. The Respondent cites a line of jurisprudence for the proposition that misrepresentation made by a non-party to an application, without the applicant’s knowledge, does not save an application from an inadmissibility finding under section 40 of the IRPA. The Respondent also takes the position that the Applicant’s response to the procedural fairness letter did not meet the high standard to warrant such an exception.

[16]  I agree with the Applicant that the Manager failed to consider whether the Applicant honestly and reasonably believed he was not withholding material information.

CONGRATULATIONS TO EVERYONE WHO CONTRIBUTED TO THIS POSITIVE DECISION!

MCJA Conference: Guest Speaker on Criminal Justice

On 9 November 2017, Alastair will be a Guest Speaker at the annual Manitoba Criminal Justice Association conference. Here is a description of the Association and its importance in criminal justice:

criminal justice

The Manitoba Criminal Justice Association (MCJA) is a provincial affiliate of the Canadian Criminal Justice Association (CCJA) and has been actively engaged in promoting crime prevention initiatives in Manitoba for over 40 years. It is an independent, community-based organization, governed by a Board of Directors which is comprised of citizens interested in achieving the objectives of the Association. The Manitoba Criminal Justice Association exists to promote rational, informed, and responsible debate in order to contribute to the development of a more humane, equitable, and effective justice system.

Alastair will be speaking on criminal justice issues and the rights of refugees. He regularly represents refugees at the IRB, Refugee Protection Division. He also represents clients at all levels of tribunal, as well as Federal Court on appeals. He also assists clients who have criminality issues who face Section 44 Reports from CBSA and foreign nationals who have criminal convictions and need a TRP to enter Canada. His talk will cover:

The talk is part of a larger series that includes many perspectives and we welcome any questions at the end of the presentation. Please note that Alastair cannot give any legal advice on any individual matters at the conference.

MCJA is currently still accepting new registrations which can be done through their website here.

Participants at the conference will have access to all materials provided by MCJA. The purpose of the workshop is to foster coordination between agencies and to make sure that refugees are provided with sound advice and resources to potentially establish themselves in Canada.

SCC Decision: Conditional Sentences

Today, the Supreme Court rendered an important decision on the rights of permanent residents with criminality issues. The Tran decision from Federal Court of Appeal was overturned and the highest court in Canada has held that “conditional” sentences from criminal court are not considered “imprisonment”. This has a huge impact on minor convictions where the Sentencing Judge have a conditional sentence to the offender. Those Permanent Residents were subject to harsh treatment by CBSA and, in turn, the tribunal and they faced deportation.

Here is a key section from the decision by Justice Côté, paragraphs 32 to 34:

If s. 36(1)(a) is interpreted such that a conditional sentence is a “term of imprisonment”, absurd consequences will follow. As previously mentioned, conditional sentences are “for less serious and non-dangerous offenders” (Proulx, at para. 21). Thus, more serious crimes may be punished by jail sentences that are shorter than conditional sentences imposed for less serious crimes ― shorter because they are served in jail rather than in the community. It would be an absurd outcome if, for example, “less serious and non-dangerous offenders” sentenced to seven-month conditional sentences were deported, while more serious offenders receiving six-month jail terms were permitted to remain in Canada. Public safety, as an objective of the IRPA  (s. 3(1) (h)), is not enhanced by deporting less culpable offenders while allowing more culpable persons to remain in Canada.

   It would also be absurd for offenders to seek prison sentences instead of conditional sentences so that they can remain in Canada, as Mr. Tran has done in this case. Conditional sentences are designed as an alternative to incarceration in order to encourage rehabilitation, reduce the rate of incarceration, and improve the effectiveness of sentencing (Proulx, at para. 20). These objectives would be sabotaged if individuals who are subject to conditional sentences sought to replace them with prison terms, thinking the latter to be their only path for a future in the Canadian communities from which incarceration would remove them.

For these reasons, the phrase “term of imprisonment” in s. 36(1) (a) of the IRPA  cannot, by either standard of review, be understood to include conditional sentences.

As noted above, the Tran decision from the FCA has caused harsh, even “absurd” consequences for our clients. We strongly agree with Justice Côté’s decision and this has had an immediate impact on one of our clients.

12 Month Conditional Sentence

Our client was given a 12 Month Conditional Sentence in Feb 2017 and his matter was referred to the Immigration and Refugee Board of Canada, Immigration Division. Based on the SCC Tran decision, he now has a good chance of staying in Canada with his Canadian children. His conditional sentence will now not be counted as “imprisonment” and, therefore, the SCC decision will have a strong positive impact on his case.

Congratulations to Peter and all the lawyers who worked on the Tran decision!