Citizenship and Immigration Committee on Nov. 26th, 2012

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Thank you.

[The Chair, Conservative, David Tilson]

Madame Groguhé.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Mr. Chair, the spirit of the amendment we are proposing is important. I think we must really consider this concept of the benefit of the doubt that may be accorded someone at a given time. I think that's an important concept. In fact, I think that judging the good faith of a statement is without a doubt quite subjective.

If it isn't possible to give someone who has unintentionally provided a false statement a chance to rectify the situation, that is harmful. The bill as it currently reads makes no distinction between fraudulent misrepresentation and false statements made in error.

Our amendment moves in that direction. We hope that this distinction is being considered and that it appears clearly in the wording of this clause.

[The Chair, Conservative, David Tilson]

Thank you.

Mr. Lamoureux.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Chair, I'm thinking in terms of individuals abroad who would fill out their forms and along with the forms would have to provide background information, educational documents, work history, and so forth. If, for the sake of argument, someone submits a certificate and the immigration office abroad is not able to get verification of that certificate, they will often rule that it is misrepresentation, because they couldn't locate it. The facility might not exist anymore, or something of that nature.

Does the immigration officer have the discretion to override things of that nature, or if the immigration officer himself or herself says that it is misrepresentation, what sort of an appeal is there? Is there someone else the person could go to, or does it remain with the immigration officer?

[The Chair, Conservative, David Tilson]

Ms. Sadek.

[Jillan Sadek]

Overseas, if these officers suspect that it's a fraudulent degree for instance, but they can't nail it down, there are all kinds of things they can do to try to get to the bottom of that. If it's still unsuccessful, and they wanted to use misrepresentation, which is, I think, what you're suggesting, they would then have to go to their unit manager for concurrence on an A40 finding. They're not done lightly, as I was saying. In that particular fact scenario, I don't really see that as an obvious solution in the case.

I think you're asking whether there are mechanisms for them to overcome it, and yes there are. They could use A25 to overcome that inadmissibility if they thought it was an inadmissibility to begin with.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Just to be clear, an individual abroad who is accused of misrepresentation can appeal to the unit manager as someone who is putting in their application.

[Jillan Sadek]

It's not really an appeal, because the application wouldn't be finalized yet. The visa officer would send them their procedural fairness letter saying that they think the person may be inadmissible pursuant to A40, and explaining why. That would give them a chance to reply. If after receiving the client's submission they still thought they were inadmissible, they would then go to the unit manager to concur with an A40 finding before refusing the application. That's sort of internal to the process prior to refusal.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Does this bill deal in any fashion whatsoever with retroactivity? If someone arrived in Canada and then you found out they had said they didn't have any children, but they had a child or they said they weren't married but they were married, would this legislation deal with that in any capacity whatsoever?

[Jillan Sadek]

The coming into force for this one is royal assent. There is no transitional period for it, which means that for any inadmissibility finding after coming into force, the five-year rule would apply. Otherwise if they were found to be inadmissible, it would be the two years prior to coming into force. Does that answer your question?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

It might not even be just this particular clause. I'm asking if there's anything post landing, if I can put it that way, that would be impacted when misrepresentation was found to have been used. In other words, for whatever reasons they arrived in Canada, nothing was found out.

[Jillan Sadek]

Are you talking about the application for permanent residence?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Yes.

[Jillan Sadek]

If as a permanent resident you were reported for misrepresentation, it would be the same process as normal, as right now, only the five years would apply once the exclusion order was executed. Instead of a two-year exclusion order, you would get the five-year exclusion order, but there's no other change to the process. Does that help?

[The Chair, Conservative, David Tilson]

Thank you.

Ms. Sims.

[Jinny Sims, NDP, Newton—North Delta, BC]

The big leap we're making here today is from two years to five years. What we're trying to do is move forward on a piece of legislation. We're looking for something very specific so that if the misrepresentation was unintentional, the person wouldn't be impacted in the same way.

By the way, when we talk about a move from two to five years, think about what we're really saying to families and how long they're going to be separated. It's not only the five years that they can't reapply, but also the five years after that that they can't apply, and so on, and all the processing time as well.

I want to give you an example and get your input. This is a real case, but I'm not going to mention any names. A person applied to come over here and listed all the places he had worked but forgot to mention a place where he had worked for four months when he was 17. This was discovered, or whatever, and that person was told that he had misrepresented himself because he had not listed all his places of employment.

I dealt with that case. I looked at it and made all the phone calls, as you're supposed to, to get some more background. Even after I got the background information, that was the only sticking point I could find. Then I sat down and decided to see if I, at my ripe old age, could write down all the things I have done since I was 16. I wrote them down. I have a fairly good memory, but then I realized that for two weeks, for two whole weeks, I had a job at a hospital which I had to quit because I was going away. I had totally forgotten about that. I had to be reminded by my husband who happened to find it interesting that I forgot those two weeks of my life. He remembered for some weird reason, and I don't know why. If I were filling out that form, I would have forgotten to include that. It would be a totally innocent omission, not meaning to misrepresent.

That's one scenario.

Then there are these other scenarios, and they are real scenarios as well, involving women who are running away to safety from very dangerous situations, not only politically dangerous situations but also dangerous domestic situations. When they're filling out a form, they may not want to acknowledge that they have a husband because they have this inherent fear that he's going to track them down.

What we're saying in both those cases is that they lied. One was unintentional, a memory lapse; let's call it a senior moment. The second one was a situation we can understand. To me, this piece of legislation goes way over the top.

I also heard that Australia has a period of only three years, right? We didn't look at moving the five years down, though we didn't like the five years, because as long as we can get this exception, then we felt we could make this work. I'm still hopeful, forever hopeful on this side, Mr. Dykstra, that you will see reason and vote with us.

[The Chair, Conservative, David Tilson]

Ms. Sitsabaiesan, go ahead.

[Rathika Sitsabaiesan, NDP, Scarborough—Rouge River, ON]

I'll be very brief. I just wanted to add that, once again, this is another reasonable amendment. This penalty is actually quite harsh if the infraction was unintentional. We've heard many examples of where mistakes in filling out the forms can be made by anyone.

In my constituency office, I get people coming in all the time, people who have a very good grasp of the English language or the French language. In my constituency, there aren't too many francophones. There are some, but most are English speakers who have a very good grasp of the language but still have difficulty with the form. There may be people who don't have as good a grasp of the language, who may have misunderstood the form and made mistakes in filling it out. There are unintentional mistakes made and difficulties in filling out the form.

We need to be mindful of family members of our constituents who are the ones filling out these forms and maybe making these mistakes.

Also, Jinny mentioned the example of someone filling out the form under some form of duress, and of course, there's the use of a third party agent like the unscrupulous consultants. The amendment actually gives assurances for the honest mistake and protection for individuals from unscrupulous agents. It just seems that judicial review is such a large process. It's such a long and involved process for a possible honest mistake.

I don't have much else to add right now, Mr. Chair.

[The Chair, Conservative, David Tilson]

Mr. Dykstra.

[Rick Dykstra, Conservative, St. Catharines, ON]

I want to point out that Mr. Lamoureux's question and answer session with staff was actually a good one. A couple of points I had asked about were reiterated and also one thing further, that this basically boils down to a more significant penalty for those who misrepresent themselves.

While there are always going to be the potential exemptions or exceptions to the rule, those are going to exist whether or not the period is two years or five years. The whole concept behind misrepresentation is that you are fraudulent, that you are attempting to mislead officials and those researching your file into giving you a favourable decision.

If there is an honest mistake made, we've heard from Ms. Sadek that as the individual moves through the process there are all kinds of opportunities for them to present evidence that enforces, reinforces, or corrects what may be interpreted within the application itself. I think we've beat this amendment to death. I think we understand that the point of misrepresentation is going to put the person in a very bad light, so therefore, they should be honest.

[The Chair, Conservative, David Tilson]

Ms. Sims.

[Jinny Sims, NDP, Newton—North Delta, BC]

We've heard from people who work with refugees and immigrants, and people seeking visas. People who presented to us, practitioner after practitioner, group after group, expressed these concerns. They felt these concerns to be real. They don't feel they are addressed in the legislation.

I am finding it hard to believe what has changed in the last week, that suddenly almost everything that we're bringing up is either there or isn't needed.

[An hon. member]

We've been saying that all the way through the process.

[Jinny Sims, NDP, Newton—North Delta, BC]

Yet, witness after witness has said that there are some major flaws in this legislation. All we're trying to do, with the best of intentions, is to mitigate the flaws so we can move forward.