Excluded Family Members: Brief on R. 117(9)(d)

Transcription

1 Cnseil canadien pur les réfugiés Canadian Cuncil fr Refugees Excluded Family Members: Brief n R. 117(9)(d) Table f cntents 1. Overview Backgrund Reasns fr nn-disclsure H&C: the flawed remedy fr R.117(9)(d) Impact f separatin D we need R.117(9)(d)? Canada s internatinal human rights bligatins Recmmendatin Appendix: Relevant human rights texts... 14

2 1. Overview The CCR welcmes the new gvernment s cmmitment t make family reunificatin ne f Canada s cre immigratin pririties. 1 This cmmitment reflects Canada s histry as a humanitarian cuntry and is enshrined tday in the bjectives f the Immigratin and Refugee Prtectin Act (IRPA). 2 Despite this, a significant barrier t this cmmitment is fund in Canada s wn legislatin. Sectin 117(9)(d) f the Immigratin and Refugee Prtectin Regulatins impses a lifelng spnsrship ban n family members wh were nt examined at the time f the spnsr s immigratin t Canada. Althugh R.117(9)(d) affects all categries f immigrants, it has a disprprtinately negative effect n refugees and vulnerable migrants wh fail t disclse a family member. Their reasns fr ding s include fear f endangering the family member, gender-based ppressin, lack f infrmatin, and unexpected life events. The regime set ut in R.117(9)(d) is verbrad, excessive, and inflicts devastating harm n vulnerable peple, especially children. Fr thse wh had legitimate reasns fr nt disclsing a family member, the nly remedy pssible is t request an exemptin frm R.117(9)(d) n humanitarian and cmpassinate grunds. Hwever, this prcess is expensive, lengthy, and incnsistent very ften putting it beynd the reach f the Regulatin s mst vulnerable victims. The CCR believes R.117(9)(d) vilates Canada s internatinal human rights cmmitments and recmmends its eliminatin as a simple and effective way t address the prblems it has created Backgrund Regulatin 117(9)(d) was intrduced in 2002 t cmbat fraud and misrepresentatin based n the presumptin that nn-disclsure is mtivated by the deliberate intentin t deceive. 4 As a means f deterring fraudulent abuse, it impses a permanent ban n Family Class spnsrships f family members wh were nt examined at the time f the spnsr s immigratin t Canada. As the nly regulatin in the immigratin regime that impses a lifetime ban against family reunificatin, R.117(9)(d) is unnecessary and excessive in light f the ther prven means available t prtect the system s integrity, such as the misrepresentatin prvisins IRPA, s.3(1)(d), s.3(1)(e), s.3(2)(f) 3 The CCR has raising cncerns abut the impacts f R.117(9)(d) fr many years. In 2008 the CCR published, Families Never t be United: Excluded family members, a backgrunder and series f case prfiles, ccrweb.ca/en/families-neverbe-united-excluded-family-members-prfiles 4 In the cntext f amendments intrduced in 2004, the Regulatry Impact Analysis Statement stated the fllwing with regards t subsectin 117(9)(d): Under IRPA all family members f an applicant must be examined, whether they are accmpanying r nt. Paragraph 117(9)(d) is a necessary cmpnent f this requirement in rder t prevent fraudulent abuse. [Emphasis added] Regulatry Impact Analysis Statement (2002) Canada Gazette II, Vl 138, N 16 at IRPA, s. 40 and s

3 R.117(9)(d) impses a lifetime ban n family reunificatin withut cnsidering the underlying reasns fr nndisclsure. It acts as a strict liability regime because it applies whether r nt the persn was at fault r negligent. This stands in stark cntrast t the immigratin scheme s primary bjective f see[ing] that families are reunited in Canada. 6 Of particular cncern is the fact that the ban als applies t children. In mst cases, children affected had n input as t whether r nt they were disclsed n the applicatin. They are in n way at fault, and yet they suffer the cnsequences f being rendered inadmissible. In fact, children suffer the wrst harms as a result f the Regulatin: they are separated frm family members at an age when being with family is crucial, and in many cases they are left behind in situatins where they are expsed t abuse and neglect. This is cntrary t Canada s bligatins under the Cnventin n the Rights f the Child. Article 3 f that Cnventin requires that children s best interests be cnsidered in all matters affecting them, while Article 10 guarantees the right t family reunificatin and t maintain direct cntact with bth parents n a regular basis. Depriving refugees and immigrants f family unity als undermines the Immigratin and Refugee Prtectin Act s bjectives f prmting the successful integratin f permanent residents and the self-sufficiency and scial and ecnmic well-being f refugees. 7 Many f the families affected by R. 117(9)(d) have n viable ptin fr family reunificatin utside f Canada. Refugees cannt return t the cuntry f rigin because this wuld mean returning t the cuntry f persecutin, nr d they have a right f residence in the third cuntry frm which they were resettled t Canada. Even fr immigrants, returning t the hme cuntry is ften nt a sensible ptin. Fr example, it may mean telling a persn, wh was brught t Canada t fill gaps in the labur market, t leave Canada if they want t live with family members left behind. Nt nly is this harsh, it makes n ecnmic sense. 3. Reasns fr nn-disclsure Nn-disclsure is ften rted in gd faith, miscmmunicatin, r a pwer imbalance, especially in terms f gender. In a study f 105 cases, 92% f challenges t spnsrship refusals under R.117(9)(d) invlved cases with n fraudulent intent. 8 Unlike mst ther prvisins relating t failures t cmply with immigratin prvisins, R.117(9)(d) is rigidly applied t all cases withut any discretin t cnsider the legitimate and ften heartbreaking reasns why applicants d nt declare a family member. This presumptin f fraud disprprtinately affects the already vulnerable, such as children, refugees, and wmen in unequal relatinships. 6 IRPA, s.3(1)(d) 7 IRPA, s.3(1)(e), s.3(2)(f) 8 Vivian Pitchik, a 2015 summer law student at Neighburhd Legal Services in Trnt, undertk this research, lking fr trends amng 105 reprted cases frm the Federal Curt and frm the Immigratin Appeal Divisin. 3

4 With this rule, the gvernment catches the gd peple alng with the bad peple. Nur, a Smali refugee left behind with her three children in Ethipia Sme examples f reasns why family members are nt disclsed include the fllwing situatins. 9 A. Gender-based ppressin prevents sme wmen frm declaring a marriage r baby A.1 The shame f having a child brn ut f wedlck Skha declared nly tw f her three children because her first child was brn ut f wedlck. In Cambdian culture, there is significant shame assciated with illegitimacy. Parisa was raised by her brther in the Demcratic Republic f Cng and gt pregnant at 19 years f age. T hide the fact that she was an unwed mther, her sn was taken frm her t be raised by an aunt. Sn after, sldiers killed Parisa s brther and his wife and raped her at the scene. She fled t Canada and claimed refugee status. She never disclsed her baby t either the gvernment r her lawyer due t the stigma f having a child brn ut f wedlck and the cntinuing effects f her trauma. When Ziba arrived at the Canadian embassy t add her child t her file, the interpreter there refused t translate her request t speak t a visa fficer. The interpreter was a man frm her culture and Ziba was afraid that news f her pregnancy wuld spread. Given the stigma f being pregnant ut f wedlck, Ziba did nt want t elabrate n why she wanted t speak t the visa fficer and her child was never disclsed t Canadian authrities. A.2 Pressure frm the husband t nt reveal a child brn ut f anther relatinship At age 13, Niyat, an Eritrean, was abducted in Ethipia where she was living, raped, and frced t marry the rapist. She had tw daughters when she was 14 and 15 years ld and tried many times t escape with bth children. Fearing that her husband wuld kill her, she finally fled by herself when she was 19 years ld. She crssed int Kenya, where she met and married anther man. She came t Canada as his spuse when he was privately spnsred. He did nt allw her t disclse her daughters, saying his family wuld reject her if they knew she had children. She had n ther chice because staying alne in Kenya r returning t Ethipia r Eritrea were nt viable ptins. Halima s husband was a Cnventin refugee in Canada wh waited seven years fr the Nairbi visa ffice t prcess his wife Halima and their daughter. During that lng and difficult perid f family separatin, Halima had a brief affair ut f lneliness and cnceived a child. Her husband tld her t leave the baby behind and get t Canada quickly fr the sake f their wn daughter, since they had already waited s lng. 9 Fictitius names are used thrughut in rder t prtect individuals privacy. 4

5 B. The applicants were in danger and needed t leave as sn as pssible fr their safety, especially in light f the lng prcessing times by Canadian visa ffices Fadia and her family were at risk frm militants wh kidnapped wmen and girls fr sexual slavery. They had been asking abut her, making her feel targeted and unsafe, particularly as a single mther with a daughter. Fr her daughter s safety, Fadia pretended that her baby was her mther s and fled t Canada. She left her daughter with her parents, believing she wuld be able t spnsr her later. Fearing her daughter wuld be at risk if anyne knew that she was the real mther and nt trusting anyne, Fadia did nt disclse her daughter s existence in her refugee claim r permanent residence applicatin in Canada. Malak is a Smali Cnventin refugee wh fled t Saudi Arabia, where she married and had five daughters. She and her husband then divrced ver a disagreement abut where t live. Malak tk all five daughters t Syria, where they were accepted t cme t Canada as refugees, while her frmer husband returned t Smalia t lk after his mther. Hwever, he later went t Syria after elders cnvinced the family t get back tgether. By that time, the situatin in Syria was rapidly deterirating and they decided that, fr their daughters safety, they culd nt risk amending Malak s Canadian immigratin applicatin which wuld further delay prcessing. Instead, they decided she wuld spnsr him after she arrived in Canada. She declared him immediately n arrival at the Canadian brder but the relatinship is still caught by R. 117(9)(d). C. Declaring the child wuld expse the family t plitical persecutin A Chinese cuple was afraid the Chinese gvernment wuld find ut they had cntravened the ne-child plicy if the child was declared in their wn applicatin. The immigratin cnsultant further assured them that they did nt have t declare their secnd child in rder t spnsr her later. D. The applicant was unaware that the dependent existed r was alive at the time f applicatin Karim believed that his sn had been killed in a gencide and did nt declare him when he applied fr permanent residence. It was nly after he arrived in Canada that his sn was lcated by the Internatinal Cmmittee f the Red Crss. Fllwing the disslutin f her first marriage, Muna s husband tk their sn, as was his custmary right. During the ensuing war in Burundi, she heard that her sn and ex-husband had bth been killed. She came t Canada as a refugee with the fur children frm her secnd marriage. Only then did she find ut that her sn was still alive. Murad fled the unrest in Eritrea t Sudan and then t Italy, where he had an affair with a yung wman frm his hme area. The yung wman was pregnant when she returned t Eritrea but Murad did nt learn f this until after he was resettled t Canada. 5

6 E. Misinfrmatin led t nn-disclsure While waiting fr his applicatin t be prcessed, Basil married and had a child. He understd that after his interview he shuld nt cntact the Embassy abut his file because it wuld prlng the prcess. Thinking that he was fllwing the advice f the Canadian Embassy, his wife and child were nt disclsed. 4. H&C: the flawed remedy fr R.117(9)(d) The nly remedy t R.117(9)(d) is an exemptin based n humanitarian and cmpassinate (H&C) cnsideratins under sectin 25 f the Immigratin and Refugee Prtectin Act. The applicant has the burden f cnvincing the visa fficer making the decisin that the failure t disclse the family member is utweighed by humanitarian and cmpassinate cnsideratins thus giving rise t this discretinary remedy. This apprach des nt vercme the harsh effects f R.117(9)(d). R.117(9)(d) cntinues t act as an bstacle and cmmunicates that the spnsr has dne smething bad that can nly be frgiven by visa fficers exercising discretin n cmpassinate grunds. H&C decisins The decisins made by visa fficers are t ften f pr quality. Fr example, fficers have a legal bligatin t cnsider the best interests f the child but this is ften nt dne in a meaningful way, if at all. The fllwing are sme examples f H&C decisins made by visa fficers: Huang, a divrced father, spnsred his daughter but nt his sn because he did nt have custdy f him at the time. He later gained custdy f his sn due t the mther s ecnmic difficulties. In refusing the spnsrship applicatin, the visa fficer prvided n reasns why the H&C cnsideratins were rejected, did nt refer t the best interests f the child, and did nt cnsider all f the evidence submitted. It tk Anwar multiple spnsrship applicatins and a judicial review, spread ver 8 years, t bring his previusly undisclsed wife and children t Canada. Having fled Smalia as refugees, Anwar s family was living withut legal status in the slums f Addis Ababa. Anwar s mental health deterirated as a direct result f the stress f trying t reunite with his family and his wrry fr their well-being. Anwar had a large extended family willing t prvide emtinal and practical supprt t his wife and children after they arrived in Canada. Cnversely, in Addis Ababa his children had n access t schling r medical care and his wife was sick. In cnsidering H&C factrs, a visa fficer cncluded that it was nt in the best interests f the children t reunite with a father wh had been diagnsed with a mental health disrder. Rather, accrding t the visa fficer, it wuld be better fr the children t remain, withut legal status, in the slums in Addis because they were familiar with that envirnment. When Wenbin and his family immigrated t Canada, he did nt disclse his secnd child ut f fear that the Chinese authrities wuld see his applicatin and impse severe sanctins nce they discvered that he had vilated the ne-child plicy. After cming t Canada, Wenbin managed t raise the mney t pay the $15,000 fine t legally register his sn in China, a necessary step in rder t spnsr him t Canada. The H&C applicatin highlighted that the by was living with aging grandparents wh were in pr health, with n prspect f lng-term care. Nevertheless the visa fficer rejected the applicatin, saying that any hardship suffered was a direct result f Wenbin s missin in his applicatin fr permanent residence. On judicial review, the Federal Curt fund that the fficer s best interest f the child analysis was n mre 6

7 than a generalized statement f the law and that the fficer culd nly have reached the cnclusins he did by ignring the evidence in this case and being wilfully blind t the facts befre him that supprt this H&C applicatin. 10 Applicants whse request fr an H&C exemptin is refused d nt have appeal rights like ther Family Class spnsrs. The Immigratin Appeal Divisin des nt have jurisdictin t cnsider the case because the excluded family member is nt a member f the Family Class. The nly recurse is t apply t the Federal Curt fr judicial review. Hwever, the Federal Curt des nt ffer an appeal n the merits and can nly verturn a decisin it finds t have been unreasnable, r t have cntained an errr f law. Mrever, under administrative law principles, curts usually grant generus deference t the fficer s decisins, even thugh the fficer is ften nt a lawyer r an expert. A discretinary remedy fr painful family separatin is nt nly arbitrary and insufficient, but it is als expensive and separates families fr lng perids f time. H&C is an expensive remedy because it is a cmplicated prcess that generally requires hiring a lawyer. R.117(9)(d) disprprtinately affects lw-incme peple wh cannt affrd expert help fr the initial H&C applicatin, much less fr the judicial review in Federal Curt if the applicatin is refused. A minrity are frtunate t get help frm legal aid clinics. In many parts f Canada, this ptin is unavailable and applicants are frced t d the cmplicated spnsrship applicatins n their wn r with help frm peple with n legal training, significantly decreasing their chances f success. I have been wrking with resettled refugees fr ver 8 years, and I prbably see abut 5-6 cases a year. These are always heartbreaking cases. It is cntinually s difficult t tell peple that there is nthing t be dne if the family member was nt declared. With n legal aid in Nva Sctia fr refugees and immigrants, there are few resurces t help these families as they cannt affrd t hire a private lawyer. Marie Kettle, Private Refugee Spnsrship Crdinatr, The Anglican Dicese f Nva Sctia and PEI The prcess f applying fr an H&C exemptin usually takes years. It takes even lnger fr thse wh d nt knw abut the H&C remedy r hw t ask fr it: they ften waste mnths r years befre learning that they shuld make an H&C request. Sme send in H&C applicatins withut a lawyer r ther expert t help them and the request is refused because the submissins are nt sufficiently detailed. In ther cases, the applicatin is refused due t questinable decisin-making by the visa fficer. In these cases, the prcess t reapply r t pursue judicial review separates families even lnger, causing irreparable harm. Fr example: Inas was tld fr years that if she attempted t spnsr her nn-disclsed sn, she wuld be sent back t her war-trn cuntry fr misrepresentatin. She therefre waited until she was a citizen t spnsr him, at 10 Lu v MCI, 2016 FC

8 which pint her sn was 9 years ld. She did the applicatin by herself because she culd nt affrd a lawyer and did nt knw she had t request an H&C exemptin. After 4 years f waiting, the applicatin was refused n the basis f R.117(9)(d). The visa fficer did nt cnsider any f the H&C factrs r the best interests f the child. The visa ffice advised her t appeal t the Immigratin Appeal Divisin (IAD) and she waited a year fr that hearing, nly t be tld that the IAD had n jurisdictin t hear her case. They tld her that she shuld apply again and include arguments fr H&C cnsideratins. The fllwing demnstrates hw lng sme families were separated as a result f R.117(9)(d): Applicant Years separated Additinal ntes Halima 1+ A newbrn child was separated frm her mther. Nadia 5 Nadia landed in Canada in Her daughter, Ruba, arrived 5 years later, in mid Fatima 6 Fatima s child was cnceived frm rape and left behind in the Demcratic Republic f Cng. Hani 7 When Hani arrived in Canada in 2009, she was tld that she culd nt make an applicatin under the ne-year windw because she did nt declare her sn. It tk almst 7 years fr her t reunite with her sn in Canada. Anwar 8 Anwar applied t spnsr his family sn after he arrived in Canada. His applicatin was refused twice. After judicial review f the secnd refusal, it was sent back fr redeterminatin. Fadia 11 Fadia waited until she was a citizen befre initiating the spnsrship prceedings fr her daughter because she was tld by many different surces that disclsing a nn-declared child wuld make her lse her status in Canada. Inas 11 Inas als waited until she was a citizen befre making a spnsrship applicatin because she believed that disclsing her sn culd jepardize her status in Canada. She did the spnsrship applicatin by herself and did nt knw t use H&C terminlgy. She was als misled int wasting time appealing befre the Immigratin Appeal Divisin. 8

9 5. Impact f separatin A. Impact n children left behind R.117(9)(d) disprprtinately affects the children left behind. In the case f refugee families, the children ften remain in the same precarius and dangerus situatins that frced their parents t seek prtectin. The CCR has learned, thrugh an Access t Infrmatin Request, that 55% f the apprximately 1,150 spnsrships refused between 2010 and 2014 due t R.117(9)(d) were applicatins t spnsr children. The family in the hme cuntry ften cannt supprt anther child. Sme f these children are passed frm ne caregiver t anther. In ther cases, children f refugees are in a third cuntry where they have n status r nly insecure status. The lack f stable parental and familial supprt has a permanent effect n a child s emtinal and mental develpment. The effects f R.117(9)(d) and the presumptin f deceptin is ultimately paid fr by the inncent children left behind. Niyat fled t Canada fllwing an abusive relatinship but was unable t bring her children. The children cntinued t be emtinally abused by their father, were nt allwed t g t schl, and were passed arund between different family members. After their first spnsrship applicatin was refused, the yungest daughter tried t get t Eurpe n her wn but was kidnapped in Libya. The mther and sister have had n cntact with her in tw years and she is presumed dead. Fllwing a negative H&C determinatin, Hani s sn faced cnstant discriminatin as a Smali teenager in Kenya. The situatin deterirated in the aftermath f the Westgate Mall shting and he was runded up and kept in a stadium fr three days by Kenyan authrities, watching thers get beaten and deprived f fd and water. He als faced the cnstant threat frm Al-Shabaab, the Islamic extremist grup that was steadily gaining cntrl ver the regin. When Ruba was returned t her mther s custdy at 5 years ld, Nadia immediately began the spnsrship prcess based n H&C grunds with the help f a legal aid lawyer. During the three years it tk t make the discretinary decisin, Ruba became depressed and sick. At 7 years f age, she weighed nly 8kg. Ruba cntinues t resent her mther, falsely believing that her mther wuld have tried harder t spnsr her t Canada had she been a by. Tday, mre than 10 years later, Nadia is still unable t get her daughter t fully pen up and trust her. When Muna and Eric divrced, Eric had custdy f their sn Alain. War in Burundi brke ut sn after and Muna and her new husband fled t Tanzania, where she heard that bth Eric and Alain were dead. In reality, nly Eric had been killed. Muna did nt declare Alain in her immigratin frms, learning that he was alive nly after she had resettled as a refugee in Canada. The spnsrship prcess was unduly lengthened due t R.117(9)(d) and during that time Alain was severely mistreated by a family member. Muna and Alain are nw reunited and trying t rebuild a relatinship but they can never get thse lst years back. He cntinues t be angry that he was left behind fr s lng. Fadia was repeatedly tld that the Canadian gvernment wuld deprt her fr misrepresentatin if it learned that she had excluded her daughter, Rana, in her applicatin fr permanent residence. As a result, she began spnsrship prceedings nly after she became a Canadian citizen. With the help f a lawyer, Fadia and Rana were finally reunited. Hwever, the 11 years f separatin caused by R 117(9)(d) has permanently 9

10 damaged this family. Rana cntinues t suffer frm medical and psychiatric cnditins directly related t the lng separatin and still feels abandned and unlved. If yu have children, yu wuld understand. Children never leave yur heart, even when they are lder and have mved ut. But especially when they are yung, the child and the parent need each ther. Separating a child frm her parents is ne f the wrst punishments imaginable fr bth parties, and this is what R.117(9)(d) did t us. It caused s much damage fr ur family and we dn t knw hw lng it will stay in ur lives. Ruba was separated frm us fr three years and nw, ten years later, I knw that she still des nt fully see r trust me as a mther. - Nadia, a refugee wh came with her sn but left her daughter behind in Afghanistan B. Impact n the parents and families in Canada When spnsrs first cme t Canada, they are frantic t bring the rest f the family. At the cst f their wn physical and mental health, spnsrs struggle with the effect f separatin, the stress f the immigratin prcess, and the effrt f supprting the family n their wn. In several cases, parents have been suicidal. Sme examples include the fllwing: Hazele did nt disclse Miguel n her applicatin fr permanent residence because she was unaware that city hall had mistakenly registered their agreement f cmmitment as a marriage. While they did marry later and had a child, the request fr an exemptin frm R. 117(9)(d) was refused twice, even thugh the immigratin fficer recgnized that the 2003 ceremny was inadvertently registered as a marriage. Thrughut the lng years f separatin, Hazele and Miguel wrked hard t maintain their relatinship and t parent their daughter, Lucia, despite the distance. Lucia spent time bth in Canada and abrad. As a result f the lng years f separatin, Hazele suffered frm suicidal thughts. After eight lng years, with the Federal Curt twice granting their applicatins fr judicial review, the family has finally been able t be reunited in Canada. Hwever, the impact n their family has been immeasurable. In additin t litigatin expenses f ver $10,000, the separatin tk a significant tll n the emtinal well-being f each member f the family and cst nearly a decade f their lives as a family. Anika fled t Canada as a refugee, leaving her tw children in the care f her mther. After she was accepted as a refugee, she learned that her lder sn, brn during her first marriage, was an Excluded Family Member: he had nt been disclsed due t pr legal advice. Anika turned in deepening distress t numerus individuals and agencies seeking help. N ne explained t her hw she culd reunite with her lder sn. Finally, in despair, she called a suicide supprt line and was at last referred t an rganizatin that helped her make an H&C applicatin n behalf f her sn. Malak s husband, Jamil, is a Smali refugee stranded in Damascus. In Canada, Malak is a single mther struggling t keep her family f five daughters aflat, all f whm are deeply affected by the uncertainty f Jamil s safety. T stay ff scial assistance and remain eligible as a spnsr, she has wrked 8-hur night shifts as a cleaner while returning hme t take care f her daughters during the day. As a result f the stress, uncertainty, and the lack f sleep, Malak is lsing weight, has truble sleeping, and suffers frm 10

11 headaches and dizzy spells. A stranger stpped Malak frm jumping ff a bridge and she cntinues t be n suicide watch. Malak is nw n disability benefits. Mthers and fathers d nt adapt well in Canada when their families are separated. It causes mental health prblems that can make it difficult fr them t wrk and integrate successfully int Canadian sciety. Bringing the rest f the family t Canada becmes a cnsuming preccupatin that adversely affects the children wh are here. Rukia Warsame, Smali Family Services, Ottawa C. Impact n the children in Canada Malak s children are als suffering. Her eldest daughter is preccupied with the fear that her father will be killed in Damascus. She wuld watch news clips f ISIS beheading their victims while imagining her father is next. This child has becme aggressive and vilent at hme with the plice being called n numerus ccasins. She has been hspitalized twice fr suicide risk. Malak s tw eldest daughters are nw drinking and staying ut all night, which is especially devastating fr her as a practising Muslim. Ziba sent ver ne-third f her pay cheque t supprt her daughter and husband left behind as Iranian refugees in Pakistan. As a result f her distractin and depressin, she culd nt adequately care fr the sn wh came with her t Canada. This affected his emtinal and scial develpment, causing difficulties at schl. Nadia s daughter s caregivers in Afghanistan wuld make mnetary demands that far exceeded her daughter s needs. Having n chice but t pay, Nadia was wrking hur days. This meant that her sn, Hussein, was left largely in the care f her neighburs frm the ages f 5 t 8. When her daughter arrived in Canada, Nadia immediately started wrking less in rder t spend mre time with her tw children. Hwever, she remains unable t und the harm that Hussein felt during thse years when she was s preccupied. They currently have a tense relatinship and he has drpped ut f university even thugh he was always a gd student. Medical prfessinals remain unable t pinpint an exact diagnsis. 6. D we need R.117(9)(d)? R.117(9)(d) is nt necessary because s.40 and s.126 f the Immigratin and Refugee Prtectin Act have already prven themselves effective in addressing misrepresentatin. Fllwing a finding f misrepresentatin under s.40(1), a persn is inadmissible fr a perid f 5 years. If the misrepresentatin was mtivated by an intentin t deceive, s.126 prvides fr fines f up t $100,000 and imprisnment f up t 5 years. S.40 and R.117(9)(d) bth address unintentinal misrepresentatin and their differences highlight the latter s inflexibility, harshness and disprprtinality. 11

12 1) The defense f materiality: The sanctins under s.40 can nly be invked if the fficer wuld have made a different decisin had she r he been fully aware f the facts (i.e. the misrepresentatin had a material effect n the decisin). Fr example, if an applicant fails t disclse an inadmissible family member, the nn-disclsure may r may nt be material (i.e. affect whether the applicant is als inadmissible). 11 Once a finding f nndisclsure is made, s.40(1) allws applicants t demnstrate that it wuld nt have led the fficer t a different decisin. On the ther hand, R.117(9)(d) is applied autmatically and indiscriminately if a family member was nt disclsed in the spnsr s immigratin frms. There is n pprtunity t demnstrate that the missin wuld nt have had a material impact n the fficer s decisin. The lack f a recurse under R.117(9)(d) is especially trubling because in many cases, the misrepresentatin was unintentinal. In additin, since refugees are exempt frm sme f the inadmissibility grunds that apply t immigrants (ntably health grunds 12 ), any misrepresentatin with respect t an undisclsed family member is less likely t be material. Indeed, in mst R. 117(9)(d) cases, there is n issue f inadmissibility f the nn-disclsed family member and the nn-disclsure was nt at all material t the riginal decisin t grant the spnsr permanent residence. Yet R. 117(9)(d) still applies. 2) Cnsequences: A finding f misrepresentatin under s.40 results in a 5 year bar frm applying fr permanent resident status. On the ther hand, R.117(9)(d) results in a lifetime ban t spnsr the family member. This harsh cnsequence paints nn-disclsure as an egregius crime and is disprprtinate, especially given evidence shwing that it is ften rted in gendered pwer imbalances, mistakes r misinfrmatin. 7. Canada s internatinal human rights bligatins The existence f R.117(9)(d) and the lack f an effective recurse vilate Canada s internatinal human rights bligatins. Having ratified the Cnventin n the Rights f the Child in December 1991, Canada must respect and prmte the rights f all children. The Cnventin n the Rights f the Child affirms the status f all children as equal hlders f human rights and it includes explicit rights t prtectin frm all frms f vilence, abuse, neglect and explitatin. Article 3 f the Cnventin requires that the best interests f the child be a primary cnsideratin when making decisins that affect their lives. This bligatin is nt respected by the terms f R. 117(9)(d) nr by sme f the decisins rendered by immigratin fficers. Article 10 f the Cnventin n the Rights f the Child prtects the right f the child t family reunificatin. Therefre Canada als has an bligatin t take active measures in rder t facilitate family reunificatin. 11 If the persn is applying as a refugee, having an inadmissible family member des nt make the persn inadmissible (IRPA, s.42(1)). 12 IRPA, s.38(2). 12

13 General Cmment N. 14 issued by the United Natins Cmmittee n the Rights f the Child further elabrates n these rights, stating in paragraph 58 that,...it is indispensable t carry ut the assessment and determinatin f the child s best interests in the cntext f ptential separatin f a child frm his r her parents (arts. 9, 18 and 20). And in paragraph 66, When the child s relatins with his r her parents are interrupted by migratin (f the parents withut the child, r f the child withut his r her parents), preservatin f the family unit shuld be taken int accunt when assessing the best interests f the child in decisins n family reunificatin. 13 Yet, the use f R.117(9)(d) t prevent fraud and misrepresentatin has the effect f prlnging separatin f children frm their parents. Human rights exist t ensure the universal prtectin f fundamental human dignity. Canada s disregard fr these rights in the cntext f R.117(9)(d) vilates human dignity by jepardizing the well-being f all affected parties. Minister f Immigratin, Refugees and Citizenship Jhn McCallum has annunced the gvernment s cmmitments t reuniting families and t building a strng immigratin system that is grunded in cmpassin and ecnmic pprtunity fr all. 14 R.117(9)(d), with its blanket applicatin and harsh cnsequences, is incnsistent with the values f family unity and cmpassin. 8. Recmmendatin The CCR recmmends the repeal f R.117(9)(d). 13 www2.hchr.rg/english/bdies/crc/dcs/gc/crc_c_gc_14_eng.pdf Reprt n Plans and Pririties fr the Department f Immigratin, Refugees and Citizenship Canada, 13

14 Appendix: Relevant human rights texts The best interests f the child must be a primary cnsideratin in all actins where children are cncerned Surce Cnventin n the Rights f the Child Prtected Right Article 3 1. In all actins cncerning children, whether undertaken by public r private scial welfare institutins, curts f law, administrative authrities r legislative bdies, the best interests f the child shall be a primary cnsideratin. 2. States Parties undertake t ensure the child such prtectin and care as is necessary fr his r her well-being, taking int accunt the rights and duties f his r her parents, legal guardians, r ther individuals legally respnsible fr him r her, and, t this end, shall take all apprpriate legislative and administrative measures. The Canadian interpretatin f art.3(1) f the Cnventin n the Rights f the Child The United Natins Cmmittee n the Rights f the Child General Cmment N. 14 (2013) n the right f the child t have his r her best interests taken as a primary cnsideratin The Supreme Curt f Canada has recgnized that the interests and needs f children, including nn-citizen children, are imprtant factrs that must be given substantial weight as they are central humanitarian and cmpassinate values in Canadian sciety. 15 The IRPA als impses a psitive bligatin in that its dispsitins must be cnstrued and applied in a manner that cmplies with the Cnventin n the Rights f the Child. 16 Paragraph 58 The Cmmittee recalls that it is indispensable t carry ut the assessment and determinatin f the child s best interests in the cntext f ptential separatin f a child frm his r her parents (arts. 9, 18 and 20). It als underscres that the elements mentined abve are cncrete rights and nt nly elements in the determinatin f the best interests f the child. 15 Canadian Dctrs fr Refugee Care v Canada (Attrney General), 2014 FC 651 at para 464 citing Baker v Canada (Minster f Citizenship and Immigratin), [1999] 2 SCR 817 at paras 67 and Immigratin and Refugee Prtectin Act, SC 2001, c 27, s 3(3)(f). 14

15 The family unit is the fundamental unit f sciety and the State must undertake apprpriate measures t facilitate family reunificatin Article Cnventin n the Rights f the Child Universal Declaratin f Human Rights Prtected Right Article 10(1) applicatins by a child r his r her parents t enter r leave a State Party fr the purpse f family reunificatin shall be dealt with by States Parties in a psitive, humane and expeditius manner. States Parties shall further ensure that the submissin f such a request shall entail n adverse cnsequences fr the applicants and fr the members f their family. Article 16(3) The family is the natural and fundamental grup unit f sciety and is entitled t prtectin by sciety and the State. In a paper cmmissined fr a rundtable discussin, the UNHCR states, Family unity is a fundamental principle f internatinal law. 17 Further, in referring t article 16, [t]he right t family reunificatin is derived frm the basic and inalienable right t fund a family and the right t family reunificatin affects cases where parents and children are residing in different cuntries thereby bligating states t facilitate cntacts and deal with requests fr the purpse f reunificatin in a humane and expeditius manner. The reprt states that such rights are nly t be restricted fr reasns f natinal security and public rder. 18 Internatinal Cvenant n Civil and Plitical Rights Internatinal Cvenant n Ecnmic, Scial and Cultural Rights Article 23(1) The family is the natural and fundamental grup unit f sciety and is entitled t prtectin by sciety and the State. Article 10 The States Parties t the present Cvenant recgnize that: 1. The widest pssible prtectin and assistance shuld be accrded t the family, which is the natural and fundamental grup unit f sciety, particularly fr its establishment and while it is respnsible fr the care and educatin f dependent children. Marriage must be entered int with the free cnsent f the intending spuses. 17 Kate Jastram & Kathleen Newland, 9.1 Family unity and refugee prtectin in Erika Feller, Vlker Türk & Frances Nichlsn, eds, Refugee Prtectin in Internatinal Law: UNHCR s Glbal Cnsultatins n Internatinal Prtectin (Online: Cambridge University Press, 2003) 555 at Ibid at

16 The United Natins Cmmittee n the Rights f the Child General Cmment N. 14 (2013) n the right f the child t have his r her best interests taken as a primary cnsideratin Paragraph 66 When the child s relatins with his r her parents are interrupted by migratin (f the parents withut the child, r f the child withut his r her parents), preservatin f the family unit shuld be taken int accunt when assessing the best interests f the child in decisins n family reunificatin. Cnseil canadien pur les réfugiés ccrweb.ca Canadian Cuncil fr Refugees May 2016