Filipiniana News – June 2010
RHYME & REASON
Misrepresentation in the context of
immigration law can be a tricky concept.
Hence, many are often caught by surprise when told that they are
inadmissible to Canada on this ground.
They learn too late that some act or omission they were not completely
aware of, or some seemingly innocent wrongful declaration could either result
in a denial of their immigration application, or worse, the stripping of their
permanent resident status.
In Canadian immigration law,
misrepresentation is defined as “directly or indirectly misrepresenting or
withholding material facts relating to a relevant matter that induces or could
induce an error in the administration of the act.”
The words “directly or indirectly” imply
that the act of misrepresentation may have been committed by the
applicant/permanent resident or by other people. Since indirect misrepresentation still
appears to be a largely misunderstood and prevalent issue, I would like to
focus on this type of misrepresentation in this column.
In view of the above definition, the
unscrupulous act of a representative such as placement agents may prejudice an
applicant regardless of the latter’s lack of knowledge of the misrepresentation
committed. The real culprits on the
other hand, often avoid punishment or retribution owing to their Canadian
citizenship status and/or by the often protracted, complex and expensive
judicial and other modes of seeking redress.
A situation that many prospective
caregivers to Canada find themselves in is that of being “released upon arrival”. This means that the caregiver actually has
no employer upon arriving in Canada because the sponsoring employer either does
not exist or does not anymore require the services of the employer. Regardless of the reason, Canada Border
Services Agency (CBSA) officers can find the caregivers in these situations
guilty of misrepresentation because they are assumed to have misrepresented
about the non-existence of the employer named in their work visas. In many cases however, these prospective caregivers are not aware of
the placement agencies’ apparent modus operandi of asking “employers” to
sign the employment contracts and LMO applications even though these
“employers” have no intention of hiring the caregivers in the first place. When the caregivers hired by these agents
arrive in Canada on a work permit, they are immediately “released” by the
original “employers” and made available by the placement agencies to other
genuine employers who wish to hire caregivers pronto. These genuine employers usually do not want
to wait the several months (or even as long as two years for caregivers coming
directly from Manila) that it takes for LCP work permit applications to be
processed. To address the great demand
for instant live-in caregivers therefore, the highly-competitive world of
caregiver placement agencies shrewdly came up with the concept of “released
upon arrival” caregivers. The more
caregivers they have in their pool, the quicker they can meet the demands of
Canadian employers for a readily employable caregiver.
Another way by which some people are
unknowingly caught in the “misrepresentation” trap is when earlier on in their
original immigration applications, immigration consultants or representatives
advise the applicants (or do so on their own without even notifying the
applicant) to remove the names of other dependents or family members or
misdeclare marital status to supposedly avoid delays or complications in the
applications. All might seem well and
the permanent resident visas are issued, until the time that the permanent
resident decides to sponsor other family members – when the immigration officer
reviewing the file realizes that the dependent or family member was previously
not declared in the sponsor’s original application or that the marriage was not
disclosed. Since these types of
misrepresentation are deemed “material”, these could lead to inadmissibility
proceedings against the permanent resident aside from the refusal of the
sponsorship application under Section 117(9)(d) of the Immigration and Refugee
Protection Regulations.
It is therefore strongly advised that to
avoid being caught in the “misrepresentation” trap, applicants must be very
wary of advisors or consultants who advise prospective immigrants to lie in
their applications, to manipulate or misdeclare facts and/or submit falsified
documentation. If these advisors are
advising these to simplify your application and reduce work for themselves,
then they are not truly representing your best interests.
For prospective caregivers and those with
family members from overseas applying as live-in caregivers in Canada, it will
be best to advise them to ensure that the employment contracts are genuine and
with terms that are in accordance with Canadian labour standards. To confirm these, the caregivers should be
able to communicate with their employers directly to ensure that they are aware
of the possible long processing times, and are nonetheless intending to hire
the caregiver upon the issuance of the work visa. Only then can the caregiver be better
assured that the immigration officer will issue the work permit upon arrival at
the border, after having been convinced of the caregiver’s, as well as the
employer’s genuine intentions.
Meanwhile, there is clearly a fundamental
injustice in a system which perpetrates further victimization (i.e. caregivers
being deported due to indirect misrepresentation) and impunity for those
directly responsible (i.e. the placement agents who facilitated the fake
employment contracts or committed the misrepresentation). Therefore, the government must be equally
vigilant in prosecuting and discouraging these unscrupulous practices which take
advantage of the applicants’ earnest desire to work in or immigrate to
Canada.
CBSA officers often justify their strict
enforcement actions as simply meant
towards “preserving the integrity of Canada’s immigration system.” I am not sure that this objective is truly
met if their actions are focused on punishing the victims while the culpable
ones remain scot-free. Hopefully, the
recent legislative proposal to crack down unscrupulous practices by “crooked consultants”
will effectively address this terrible injustice.
The author is an immigration lawyer in
Toronto and may be reached at mdsantos@osgoode.yorku.ca.
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