The Federal Court reviewed an Immigration Appeal Division
decision involving a permanent resident who had obtained status through a paid
marriage of convenience.
The applicant admitted that the marriage was arranged for
immigration purposes and asked the IAD to allow her appeal on humanitarian and
compassionate grounds.
The Court upheld the IAD’s refusal to grant special relief.
Key Principle
Where permanent residence was obtained through deliberate
misrepresentation, the IAD may give significant weight to the seriousness of
that conduct when deciding whether H&C considerations justify special
relief.
Positive establishment, family relationships, and hardship
must still be considered, but they do not automatically outweigh serious
immigration fraud.
A stay of a removal order is also not something the IAD must
consider on its own initiative where the applicant has not clearly requested
that remedy.
Background
Ms. Li came to Canada from China as a student and later
entered into a paid marriage with a Canadian citizen.
She paid approximately $30,000 for the arrangement, while
the Canadian spouse also received payment for participating and sponsoring her.
The couple never lived together, but Ms. Li obtained
permanent resident status through the sponsorship.
She initially denied that the marriage was fraudulent and
even provided a statutory declaration supporting its genuineness. She admitted
the truth only after her former spouse disclosed the arrangement to CBSA.
Court Findings
The IAD considered the seriousness of the misrepresentation,
remorse, establishment in Canada, family relationships, hardship, and other
relevant H&C factors.
It accepted that Ms. Li had lived in Canada for many years,
was employed, involved in her community, and would experience hardship if
removed.
However, the IAD found that the misrepresentation was
deliberate, repeated, and serious, and that her expressions of remorse were
weakened by the fact that she continued denying the fraud until confronted with
her former spouse’s admission.
The Federal Court also rejected the argument that the IAD
had been required to consider staying the removal order.
The Court held that the IAD is not required to independently
consider a stay where it was not clearly requested and where the circumstances
did not obviously call for that remedy.
Outcome
The Federal Court dismissed the application for judicial
review.
The Court found it reasonable for the IAD to conclude that
the positive H&C factors were insufficient to overcome the seriousness of
the deliberate marriage-of-convenience misrepresentation.
Case Citation:
Li v. Canada (Citizenship and Immigration), 2015 FC 998 CanLII
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian
Immigration Case Law and Statistics Analyst
