From: IMEDA Immigration Education Alliance
2021/05/05
Hello, fellow practitioners! Today’s column deals with spousal sponsorships and permanent resident sponsors who are stuck outside of Canada while their application is processing.
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I have a client (hereinafter “client”) who is a Canadian permanent resident. We are assisting him in sponsoring his wife.
We submitted the application on February 26, 2020 and they received the passport request on February 20, 2021. Upon receiving the passport request, the client informed us of the birth of their second child on October 23, 2020. This brought to light the fact that our client had returned to his home country on January 27, 2020, but had not informed us of this fact prior to us submitting his sponsorship application. He explained that he had to return home for an emergency, and was then stuck there due to the pandemic.
The visa office has been informed of the birth of the second child, and they instructed the client to call the helpline for the appropriate forms and instructions.
We are concerned about this situation for two reasons:
- This could be viewed as misrepresentation of a material fact since PRs are not allowed to sponsor their spouse if they do not currently reside in Canada. Though the client intended to come back to Canada after only a few days, and that is why he didn’t originally inform us of his trip.
- If we explain the above to the visa office in a satisfactory way and misrepresentation is not a concern, the issue remains that the client is not currently in Canada and therefore ineligible to sponsor.
What is the best course of action here? Do we need to submit a request for humanitarian and compassionate (hereinafter “H&C) considerations? Should we withdraw the application and wait for the client to return to Canada then resubmit?
Should we advise the client to wait until they can return to Canada and then submit the forms and fees to add the child? The client is from a country that currently has a travel ban to Canada so it could be a while before he can return.
Answer:
For ease of reference, a summary of the timeline is provided below.
- anuary 27, 2020 – Unbeknownst to representative, applicant returns to home country
- JFebruary 26, 2020 – Application is submitted
- October 23, 2020 – Dependent child is born
- February 20, 2021 – Passport request received
Let’s first examine whether there is the potential for a misrepresentation finding. The requirements for a misrepresentation finding are as follows:
1. There must be a direct or indirect misrepresentation or a withholding.
2. The misrepresentation or withholding must relate to a matter that is material to the application.
3. The misrepresentation induces or could induce an error in the administration of the Immigration and Refugee Protection Act (“IRPA”).
With respect to misrepresentation allegations, applicants generally cannot argue that they are not responsible for the actions of their representatives.
In order to use this as a defence, the applicant must show that they could not reasonably have been expected to have known that their representative was making a misrepresentation or withholding information, or that the agent acted without their consent.
The applicant must also demonstrate that he or she did not have a reasonable opportunity to correct the information and that he or she did not fail in his or her obligation to exercise due diligence to ensure that the application that was submitted was accurate.
All three elements appear to be made out in this case. The client withheld the fact that he was not currently residing in Canada. As Canadian residency is a requirement for sponsors who are permanent residents, this is considered material to the application. If an officer granted the application based on the information before them, despite the client’s ineligibility to sponsor, then this could have induced an error in the administration of the IRPA.
Given the lengthy period of time that the client had to update his application or inform his representative, it cannot be said that he acted diligently. Therefore, there don’t appear to be any solid defence to misrepresentation available to the client.
Even if the client now discloses the fact that he has not been in Canada since before the submission of the application, it may not be sufficient to prevent a misrepresentation finding from being made. A misrepresentation finding can still be made even if an applicant corrects the false information before the officer makes a decision.
[1] Nor will withdrawing the application prevent a misrepresentation finding from being made.
[2]In sum, there is a possibility that a misrepresentation finding will be made. However, before this is done, the client will be sent a procedural fairness letter and will be provided with the opportunity to respond. At this point, the client can explain the circumstances and hope that the officer will be persuaded not to make the misrepresentation finding.
Now let’s examine the possibility that the application will be refused due to the fact that the client does not “reside” in Canada, which is a requirement for permanent resident sponsors that is imposed by section 130(1)(b) of the Immigration and Refugee Protection Regulations (“IRPR”).
What does it mean to “reside” in Canada? “Resides in Canada” for section 130(1)(b) of IRPR can be established by evidence of presence on Canadian soil and involvement in day-to-day activities not requiring absence abroad.
[3] Importantly, physical absence from Canada may not constitute an interruption of residence in Canada.
[4] The question is whether a sponsor has centralized their mode of living in Canada.
[5]The sheer length of time abroad, and the fact that the client is still not in Canada, makes it extremely likely that the officer will find that the client does not meet the requirement in s.130(1)(b), and will refuse the application.
I would advise the client to find a way to return to Canada, and to do so as quickly as possible. Permanent residents are not subject to any travel restrictions that would prevent them from entering Canada. This has been the case since the onset of the pandemic. While there are currently some flight bans from hotspot countries, there are generally still travel options available (e.g. flying to a third country and getting a COVID test during the layover). I would push the client on this point, and try to verify myself whether there are travel options available to him.
If the client’s claim that he is prohibited from leaving the country at all is true, then my advice would be to withdraw the application and to resubmit it when he is able to return to Canada.
While the failure to meet s.130(1)(b) could be overcome with H&C arguments, I am doubtful this approach will be successful in this case. While the pandemic may be responsible for some disruptions to the client’s travel plans, I find it very hard to believe that there were absolutely no travel options available to him during the past 17 months. By the client’s own admission, he left Canada in January of 2020, and intended on returning after only a few days. The COVID-19 virus only began to close international borders in March of 2020. In any event, an officer may not give much weight to H&C arguments when the client can simply reapply once he is able to return to Canada. Prolonged family separation does not appear to be an issue, as it appears the client is currently with his wife and children, and has been since January of 2020. There may be other H&C grounds present that could change the analysis, but in my view, they would need to be extremely compelling.
[1] See Khan v. Canada (Minister of Citizenship and Immigration), [2008] F.C.J. No. 648 (F.C.).
[2] See Lim v Canada (Minister of Citizenship and Immigration), [2019] FCJ No 780, 2019 FC 871, [2019] ACF no 780.
[3] Cook, Donald Charles v. M.C.I. (IAD MA5-01579), Hudon, August 10, 2006.
[4] Gritsan, Serguei v. M.C.I. (IAD TA3-10556), D’Ignazio, October 5, 2004.
[5] Zhang, Tieshi v. M.C.I. (IAD MA3-02491), Patry, September 20, 2004.