Njie v. M.P.S.E.P. (Immigration Division – 0003-00053-01)
Our client had just arrived at a Canadian airport after a very long flight. He was sent to secondary inspection where he is detained, fingerprinted, questioned extensively and his luggage checked.
There, a CBSA officer confronts him with information that on two previous Electronic Travel Authorizations (ETA) and a Work Permit application for Canada he failed to disclose that he had been twice refused a work permit in the United States.
The ETA applications, the work application, indeed many Immigration Canada applications, ask the following question:
Have you ever been refused a visa or permit, denied entry or ordered to leave Canada or any other country?
The officer told him that he had answered, “No.” to this question on all his said applications, but that was a misrepresentation because his work permit refusals in the United States.
Our client knew he had never been refused a work permit in the United States, but didn’t want to be detained any longer at the airport, so he agreed to sign a declaration as dictated to him be the officer stating:
“I was refused a work permit in the United States. It was around 2016, 2017, not sure of the date, and was asked to leave the country.”
The CBSA officer then told our client that he, the officer, was of the opinion that our client was inadmissible to Canada pursuant to paragraph 40(1)(a) of the Immigration and Refugee Protection Act (IRPA) for misrepresentation and that he would write a section 44 report explaining his conclusion on the matter and present it to a Minister’s Delegate, whom would question our client the next day at the airport. Our client was then allowed to leave the airport.
The Minister’s Delegate questioned him the next morning, confronting him with his written declaration, among other evidence, that he had been refused work permits in the United States, which he had not disclosed on his said Canadian applications.
The Minister’s Delegate found, after questioning our client, that he had misrepresented.
¹ The Federal court is rife with cases where applicants have been found to have misrepresented for failing to disclose a refusal of a permit/visa from a country other than Canada, because they only read the first part of the question and answered, “No”, having never been denied a permit/visa by Canada.
Our client’s case was then referred to the Immigration Division for an Admissibility Hearing to determine whether or not he had in fact misrepresented and therefore must be banned from entering Canada for a period of five (5) years pursuant to subsection 40(2) of IRPA.
Our client then retained Eastman Law Office to represent him at his Admissibility Hearing.
The case was seemingly unwinnable because of the of our client’s signed written declaration that he had been twice refused U.S. work permits and it was undeniable that he had not disclosed this information on his said Canadian applications. However, we were able to find the needle in the haystack and prove that our client had not misrepresented.
That needle actually derived from the CBSA’s disclosure package which they relied on for the Admissibility Hearing. In it were the U.S. immigration file numbers for the two alleged U.S. work permit refusals.
Doing some digging, our law office managed to find a free U.S. government website service on which one can key in application numbers and then receive a history of that application. When we keyed in the two immigration file numbers for the two alleged refusals, both showed histories that showed that the applications in question had not been refused, but rather “rejected”. We were also able to find another U.S. government website that defined and distinguished between a “rejected” application and a “refused” application.
We were thus able to persuade the Immigration Division Member presiding over our client’s Admissibility Hearing that because our client’s U.S. work permit applications had been “rejected”, not “refused”, he had not misrepresented on his two Canadian ETA applications and work permit application. This is so because the question on those applications asked if he had been “refused” a visa/permit, so when he answered “No”, he was telling the truth.
So, in the end the Immigration Division Member found that our client had not misrepresented and therefore was not inadmissible to Canada.
Our client had submitted an application for sponsorship of her mother under the Parent Grand Parent Program (PGP); however, her application was refused because she did not meet the minimum necessary income (MNI). Representing herself, she appealed that refusal to the Immigration Appeal Division (IAD).
She did not challenge the legality of the refusal on appeal, but sought to the have her appeal allowed based on humanitarian and compassionate grounds, taking into account the best interests of the child directly affected by the decision, namely, a minor child living with her, who has a number of challenging medical conditions. Her appeal was dismissed.
Following the dismissal of her appeal, she retained Eastman Law Office to challenge the dismissal of her appeal in the Federal Court by filing an application for leave and judicial review. However, the deadline for filing in the Federal Court had passed by the time she retained our law office and therefore, we had to make extension of time submissions on why the court should hear her matter despite the late filing.
Upon looking over her case, our law office found it evident that the IAD had made a number of procedural and substantive errors in arriving at their decision to dismiss her appeal. With our guidance Ms. Ducasse filed an application for leave and judicial review, bringing into question the IAD’s decision, and appealing to have her sponsorship application looked at again.
We successfully argued that the IAD member had ignored the best interests of the child, and made fundamental reviewable errors in assessing the hardship our client’s mother would face if forced to return to her country, both going to the heart of their decision dismissing the Applicants’ appeal, thereby rendering that decision unreasonable.
After filing our client’s Application Record (affidavit evidence and written argument) in the Federal Court and serving a copy on the Respondent’s lawyers, the Respondent (Immigration Canada) quickly sought to have our client settle on the promise that they send her appeal back to the IAD to be reconsidered by a different IAD member.
From the time she retained us until the time of settlement, only a few months had passed.
Needless to say, our client was elated. We saved her time, a significant amount of litigation costs, and she got what she was hoping for, her appeal to the IAD to be reopened and reheard.
