Shall clause 10 carry?
Evidence of meeting #63 for Citizenship and Immigration in the 41st Parliament, 1st Session. (The original version is on Parliament’s site.) The winning word was report.
A video is available from Parliament.
Evidence of meeting #63 for Citizenship and Immigration in the 41st Parliament, 1st Session. (The original version is on Parliament’s site.) The winning word was report.
A video is available from Parliament.
4:50 p.m.
NDP
Jinny Sims NDP Newton—North Delta, BC
A recorded vote, please.
(Clause 10 agreed to: yeas 6; nays 5)
(Clauses 11 and 12 agreed to on division)
(On clause 13)
4:50 p.m.
Conservative
The Chair Conservative David Tilson
We're on government amendment G-1, which is on clause 13, ladies and gentlemen.
Mr. Dykstra.
4:50 p.m.
Conservative
Rick Dykstra Conservative St. Catharines, ON
Thank you, Chair.
I move that Bill C-43, in clause 13, be amended by adding after line 24 on page 4 the following:
(2.1) Paragraph 34(1)(f) of the Act is replaced by the following:
(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b), (b.1) or (c).
Chair, paragraph 34(1)(b.1) that you see was actually excluded from the original bill, and therefore we are inserting paragraph 34(1)(b.1) so that it in fact is consistent with the intent.
4:50 p.m.
Conservative
The Chair Conservative David Tilson
Debate.
(Amendment agreed to on division)
Mr. Lamoureux, we're still on clause 13. We have Liberal amendment LIB-6.
4:50 p.m.
Liberal
Kevin Lamoureux Liberal Winnipeg North, MB
Mr. Chair, I'm going to withdraw the amendment, if I may.
(Amendment withdrawn)
4:50 p.m.
Conservative
The Chair Conservative David Tilson
Thank you.
(Clause 13 as amended agreed to)
(Clauses 14 and 15 agreed to on division)
(On clause 16)
On clause 16, Ms. Sims has amendment NDP-7, which is on page 16 of the package, ladies and gentleman.
4:50 p.m.
NDP
Jinny Sims NDP Newton—North Delta, BC
I move That Bill C-43 in clause 16 be amended by replacing line 39 on page 4 with the following:
misrepresentation, unless there are reasonable grounds to believe that the misrepresentation was unintentional, for a period of five years.
As committee members know, clause 16 increases the penalty for inadmissibility for misrepresentation from two to five years and precludes a foreign national from applying for permanent residency status in that period. It would therefore also limit family sponsorship.
It's in the interest of working with government to get this legislation through and fix it that we are moving this amendment, specifically to make an exemption for those who might have entered data unintentionally.
Many witnesses have said that five years is overly punitive, especially where misrepresentation was made by an inadvertent error. The NDP members on this committee share this concern. The Canadian Council for Refugees, in their submission to us, points out that a five-year inadmissibility is excessively harsh in cases of minor infractions when a person was acting under some form of duress.
They offered two of many examples where this would be an unfair punishment. Number one is a woman who didn't declare a husband or child because of social and family pressures. Number two is an applicant who was not personally responsible for the misrepresentation because of an unscrupulous agent or even a family member who filled out the forms for them.
It is this second case I find particularly troubling. I believe that we must make sure to punish those who are criminally misrepresenting themselves and not victims of shady consultants.
While the CCR recommends that we simply delete this clause, we are proposing a very moderate alternative. Our amendment creates an exception for permanent residents and foreign nationals who are inadmissible for misrepresentation that is demonstrably unintentional. We think that this strikes the right balance.
We urge committee members to support this amendment to mitigate clause 16 from unintended consequences.
4:55 p.m.
Conservative
Rick Dykstra Conservative St. Catharines, ON
I would like to get our staff to respond to Ms. Sims' concerns.
How are we in fact addressing honest errors and omissions in terms of the penalty? What are the penalties that are similar to this in other jurisdictions that we have taken a look at?
4:55 p.m.
Director, Case Review, Department of Citizenship and Immigration
Mr. Chair, I can address the question.
4:55 p.m.
Director, Case Review, Department of Citizenship and Immigration
Currently an officer has to be satisfied that the misrepresentation essentially was not unintentional or accidental. There is a use of judgment there. Where they believe it was just an honest mistake, they're not actually found inadmissible.
For example, for A40 to be applied, for misrepresentation to be applied abroad, it's even a certain delegation of person, a certain level of individual, who has to make that call. Considerations are weighed very carefully before a finding of misrepresentation is made currently.
In terms of what other countries have, there are a few examples I have here. In the United States they do have a lifetime inadmissibility. In the United Kingdom it is up to a 10-year bar on re-entry, and Australia has a three-year bar.
4:55 p.m.
Conservative
Rick Dykstra Conservative St. Catharines, ON
If an individual feels that there was an error in omission and they have a judgment against them that they believe is unfair, what appeal mechanisms will be in place for them to pursue that?
4:55 p.m.
Director, Case Review, Department of Citizenship and Immigration
They will have access to make an application for leave and judicial review at the Federal Court if they think there was an error in the assessment of their application, namely, that there was a misrepresentation finding that was not done fairly. That would be the main mechanism in most cases, the application for leave and judicial review. In other cases, depending on the class of immigrant, they may also have an appeal, for instance, to the immigration appeal division. Certainly, clients are routinely asking for reassessment of their applications, so there are various mechanisms within the department where we hear informal processes for appeal. They will come in or write to the actual visa office or the local office that made the finding, or they may write to headquarters. We have a case management division that handles this type of inquiry.
4:55 p.m.
Conservative
Rick Dykstra Conservative St. Catharines, ON
At that point, are they allowed to submit new evidence of their claim?
4:55 p.m.
Director, Case Review, Department of Citizenship and Immigration
When you're making an application for leave in a judicial review, there's no new evidence. On appeals, depending again on the class of immigrant, there is new evidence that may be heard. But in general, the administrative law process is that once a decision is made, you would not be submitting new evidence for consideration.
I also wanted to point out that the idea we want to get across to clients is that they're responsible for the information they put in their application. I just wanted to add that.
4:55 p.m.
Conservative
Rick Dykstra Conservative St. Catharines, ON
The point I wanted to make was on introducing new evidence. It wasn't at the Federal Court level. It was within the mechanisms available to them, whether it be through just a general appeal to the ministry itself....
4:55 p.m.
Director, Case Review, Department of Citizenship and Immigration
Yes, when someone's being refused overseas, for instance, there's a procedural fairness letter that goes out to them, which gives them an opportunity to reply to the concerns of the officers. That would be an instance where prior to refusal or prior to the inadmissibility finding, the client would have an opportunity to disabuse the officer of any concerns they may have.
I hope that's helpful.
4:55 p.m.
Conservative
Rick Dykstra Conservative St. Catharines, ON
Yes, it's very helpful. It confirms, Chair, that the amendment isn't necessary. I think it has some intent, but I think the intent is already built into the system.
Misrepresentation in all of these cases must be significant and it must be consequential. If it's insignificant and it's not intentional, then there is the potential for them obviously to have it reviewed. There is also the intention of procedural fairness. If you're going to put in an amendment the suggestion that there is going to be inherent failure, then you have to be extremely concerned about any type of legislation that you bring forward. I do believe we have a system that currently addresses these issues and I think the penalty is a fair one. We've heard that it actually doesn't even come close to some other countries that we have looked to in terms of where they are with this legislation. I think we've built in everything we need into the current legislation.
5 p.m.
Conservative
John Weston Conservative West Vancouver—Sunshine Coast—Sea to Sky Country, BC
Can I just be clear on this? This is someone who's not yet a permanent resident, who's applying and who is alleged to have made a misrepresentation in the application. Is that correct?
5 p.m.
Director, Case Review, Department of Citizenship and Immigration
Yes, that's one of the ways misrepresentation can be applied.
5 p.m.
Conservative
John Weston Conservative West Vancouver—Sunshine Coast—Sea to Sky Country, BC
Okay, and a misrepresentation requires intent, right? For it to be a misrepresentation in law, doesn't there have to be some intent involved?
5 p.m.
Director, Case Review, Department of Citizenship and Immigration
As I say, there's judgment involved. Where someone's put something in an application, you don't necessarily have to establish intent. They are responsible for what's contained in their application. There are Federal Court decisions that have supported our interpretation of this.