Criminality and Misrepresentation Appeals Before the IAD

As counsel, I have appeared before the Immigration Appeal Division (IAD) in a number of appeals involving removal orders arising from criminality. What factors are generally important in these appeals?

Among the factors that may be considered are:

• The seriousness and circumstances of the criminal offence that led to the removal order;
• The appellant’s remorse and efforts toward rehabilitation;
• The length of time the appellant has lived in Canada and the degree of their establishment;
• The appellant’s family in Canada and the hardship that removal would cause to family members;
• Community support; and
• The degree of hardship the appellant may experience if required to leave Canada.

These are, in substance, the factors the Immigration Appeal Board set out in Ribic in 1985, which the Supreme Court of Canada approved in Chieu v. Canada, 2002 SCC 3. They are weighed together rather than scored one by one, and where a child is directly affected, section 67(1)(c) of the Act requires the IAD to take the child’s best interests into account.

When preparing for a hearing of this nature, counsel will generally examine the appellant’s entire immigration history and personal circumstances, beginning with when and at what age the person came to Canada. The appellant’s age at the time of immigration can be significant because it may help demonstrate the extent to which Canada has influenced the person’s development, education, employment, relationships, and overall establishment.

Counsel will also examine the appellant’s educational history and employment in Canada, as well as the steps the appellant has taken to establish a life here. Family relationships and the support of family members can be particularly important when assessing the hardship that removal may cause.

Factors Relevant to Criminal Inadmissibility Appeals

Depending on the circumstances of the case, the following factors may be relevant:

• The appellant’s age when they immigrated to Canada;
• The immigration program or category under which they were admitted;
• The languages spoken by the appellant;
• Their employment and educational history;
• The presence of family members in Canada and the support provided by family and the community;
• The appellant’s children and arrangements for their care and support;
• Their financial circumstances, including assets and liabilities;
• The circumstances surrounding the criminal offence;
• The sentencing judge’s comments and the sentence imposed;
• Conditions in the country to which the appellant would be returning;
• The appellant’s insight into the offence and commitment to rehabilitation;
• Efforts toward rehabilitation, including compliance with probation or other court orders, counselling, treatment, and restitution where applicable.

In appropriate criminality appeals, the IAD may grant a stay of the removal order subject to conditions. The conditions and duration of a stay will depend on the particular circumstances of the case.

Who can bring this appeal

A permanent resident or protected person can appeal a removal order made at an admissibility hearing or under section 44(2) (section 63(3)), and so can a foreign national who holds a permanent resident visa (section 63(2)). Section 64 removes the appeal for inadmissibility on grounds of security, violating human or international rights, sanctions, serious criminality or organized criminality — and serious criminality here means a crime punished in Canada by at least six months of imprisonment, or one described in paragraph 36(1)(b) or (c). That is why the sentence imposed matters twice: once as evidence of seriousness, and once in deciding whether the IAD can hear the appeal at all. More on the threshold is in our article on who can appeal to the Immigration Appeal Division.

The evidence usually gathered

Because the IAD decides on the evidence in front of it, preparation turns the factors above into documents. Depending on the case, that commonly includes the court records of the conviction and sentence, the sentencing judge’s reasons, letters confirming compliance with probation or other court orders, reports from counselling or treatment programs, tax, employment and school records, evidence about the needs of any children, letters from family members and the community, and evidence about conditions in the country of removal. The appellant’s own testimony is usually central: the IAD hears directly how the person understands the offence or the misrepresentation, and what has changed since.

What the IAD can do

A stay is a period of supervised good conduct. Its conditions are set case by case — for example, reporting to the CBSA, keeping the peace and informing the CBSA and the IAD of any change of address — and the IAD can cancel the stay. Under section 68(4), if a person on a stay who was found inadmissible for criminality is convicted of another offence referred to in section 36(1), the stay is cancelled by operation of law and the appeal ends.

A misrepresentation appeal decided on the whole history

I recall one case in which my client came to Canada in his forties. He had failed to disclose the existence of his wife in his country of origin, following what he said was incorrect advice from his lawyer. He was subsequently found inadmissible to Canada for misrepresentation.

In preparing the appeal, we examined his entire immigration history rather than focusing solely on the misrepresentation. We demonstrated that, after coming to Canada, he had been exceptionally diligent in pursuing his education. He completed a Canadian college program with honours, after which he was hired by a reputable firm.

We presented evidence of his educational achievements, employment, awards, and other accomplishments to demonstrate the substantial effort he had made to establish himself successfully in Canada.

The adjudicator allowed the appeal on humanitarian and compassionate grounds. In doing so, the adjudicator acknowledged that my client had misrepresented his circumstances in his application for permanent residence, but nevertheless found that, considering his circumstances as a whole, he should be granted relief from the consequences of his inadmissibility.

This case illustrates an important principle in IAD appeals: the hearing is not necessarily limited to the circumstances of the offence or the misrepresentation. The appellant’s entire history, establishment in Canada, family circumstances, rehabilitation, and the potential hardship associated with removal may all form part of the evidence considered by the IAD.

Every appeal is decided on its own evidence, and one appeal allowed on humanitarian and compassionate grounds does not predict the outcome of another. How misrepresentation itself is defined is covered in our article on misrepresentation under section 40.

Angelina Shuster is a licensed paralegal and represents appellants before the Immigration Appeal Division in appeals against removal orders arising from criminality and misrepresentation. A removal order can be reviewed through a free assessment.

This article is general information, not legal advice. Whether an appeal is available, and how it is decided, depends on the facts of each case.