Canada (Citizenship and Immigration) v. Liu, 2016 FC 460 : H&C Relief Overturned Because IAD Failed to Properly Consider Establishment Obtained Through Misrepresentation

The Federal Court reviewed an Immigration Appeal Division (IAD) decision that granted humanitarian and compassionate (H&C) relief to an applicant who had obtained permanent residence through a fraudulent marriage.

The IAD accepted that the applicant’s misrepresentation was very serious but gave significant weight to her establishment in Canada, family circumstances, remorse, and the best interests of her children. The Federal Court found that the IAD had erred by failing to properly consider the role of the fraud in creating that establishment.

Key Principle

When assessing H&C relief, misrepresentation is a relevant factor in assessing an applicant’s establishment in Canada, particularly where the establishment was obtained through the very misconduct that led to inadmissibility.

An applicant should not receive positive consideration for establishment without the decision-maker considering whether that establishment resulted from fraudulent or unlawful conduct.

The Court also emphasized that establishment must be assessed based on what actually happened, rather than speculation about what might have happened if the applicant had pursued a different immigration pathway.

Background

The applicant became a permanent resident of Canada through a marriage of convenience. She had paid $30,000 to arrange the fraudulent marriage and later divorced her sponsor.

After marrying her current husband, with whom she had two children, she was found inadmissible for misrepresentation. On appeal, she admitted that the first marriage had been fraudulent and sought H&C relief.

The IAD considered the seriousness of the fraud, her remorse, establishment in Canada, the impact of removal on her family, and the best interests of her children. It found that she was well established through her education, employment, volunteer activities, home ownership, husband, and children.

Court Findings

The Federal Court found the IAD’s assessment of establishment unreasonable.

The IAD had concluded that considering the applicant’s fraudulent conduct when assessing her establishment would be “unnecessarily punitive.” The Court disagreed and held that the misrepresentation was a relevant factor that “must be considered.”

The Court explained that the issue was not whether the applicant’s establishment should automatically receive no weight. Rather, the decision-maker had to determine what weight, if any, should be given to establishment that resulted from fraudulent conduct.

The Court also found that the IAD improperly speculated that the applicant might have established herself in Canada through other means, such as extending her student status. The Court held that establishment must be assessed based on what actually happened, not what might have happened.

The Court acknowledged that the IAD had given significant consideration to the best interests of the children, but found that the failure to properly assess the applicant’s establishment rendered the overall H&C decision unreasonable.

Outcome

The Federal Court allowed the application for judicial review and returned the matter to the IAD for redetermination.

Case Citation:

Canada (Citizenship and Immigration) v. Liu, 2016 FC 460 CanLII