Canada (Citizenship and Immigration) v. Li, 2017 FC 805 : Court Overturns Immigration Appeal After Serious Misrepresentation Was Given Too Little Weight

The Federal Court reviewed an Immigration Appeal Division (IAD) decision granting humanitarian and compassionate (H&C) relief to a permanent resident found inadmissible for misrepresentation.

The Court overturned the decision because the IAD underestimated the seriousness of the applicant’s misrepresentation when balancing the factors supporting discretionary relief.

Key Principle

Under paragraph 40(1)(a) of the Immigration and Refugee Protection Act (IRPA), withholding material information that could affect immigration processing may constitute misrepresentation.

Under paragraph 67(1)(c), the IAD may grant special relief based on H&C considerations.

However, serious misrepresentation must be appropriately weighed against positive humanitarian factors before relief is granted.

An omission may be material even if it does not directly affect the principal applicant’s eligibility, particularly where disclosure could have triggered further investigations into an accompanying family member’s admissibility.

Background

Xue Li, a Chinese citizen, applied for permanent residence under the Federal Skilled Worker Class in 2003, including her husband and daughter as accompanying dependants.

The family became Canadian permanent residents in October 2004.

Immigration authorities subsequently discovered that Ms. Li had failed to disclose her husband’s employment with the Bank of China.

Her husband was investigated in China for serious financial offences and later sentenced to 15 years’ imprisonment.

In 2014, the Immigration Division found Ms. Li inadmissible for misrepresentation and issued an exclusion order.

The IAD allowed her appeal on H&C grounds, considering her misrepresentation moderate and her establishment and community support moderately favourable.

The Minister challenged that decision.

Court Findings

The Federal Court found that the IAD had significantly underestimated the seriousness of Ms. Li’s misrepresentation.

Her husband had worked for the Bank of China for approximately 14 years, and his criminal activities involved allegations of embezzlement amounting to approximately 170 million RMB.

Although Ms. Li may not have known about his criminal activities when entering Canada, deliberately withholding his employment history was a serious material omission that could have prevented further admissibility investigations.

The Court emphasized that her misrepresentation could not reasonably be characterized as moderate merely because she independently qualified under the skilled worker program.

Furthermore, the IAD had identified only moderately favourable establishment and community support factors, while family impact and hardship were neutral.

The Court concluded that the IAD failed to adequately explain how these factors justified relief despite the serious misrepresentation.

Outcome

The Federal Court allowed the Minister’s judicial review application, set aside the IAD’s decision and returned the matter to a different IAD member for reconsideration.

No question of general importance was certified.

Case Citation:

Canada (Citizenship and Immigration) v. Li, 2017 FC 805 CanLII