…But in a Federal Court decision dated Feb. 12, Bapari successfully challenged the decision by a delegate of the immigration minister that refused him relief based on his personal circumstances.
“Mr. Bapari recognized that he had misled the authorities by relying on false identity when he first came to Canada, and then by not disclosing the misdeed when he claimed permanent residence and citizenship,” Roy said. “But he raised a number of issues that qualify as personal circumstances. The MD (ministerial delegate) had to address these in the reasons in writing he had to give.”
The MD found that Bapari “has obtained his Canadian citizenship by fraud or false representation or by knowingly concealing material circumstances,” said the Federal Court decision.
“The failure to disclose the alternate identity and removal order prevented an accurate eligibility and admissibility assessment, thus allowing (Bapari’s) return to Canada without the required written authorization. The application for Canadian citizenship suffered from the same defect. That application was not true, correct and complete in spite of the attestation to that effect given by” Bapari.
“The MD found that Bapari “has obtained his Canadian citizenship by fraud or false representation or by knowingly concealing material circumstances,” said the Federal Court decision.
“The failure to disclose the alternate identity and removal order prevented an accurate eligibility and admissibility assessment, thus allowing (Bapari’s) return to Canada without the required written authorization. The application for Canadian citizenship suffered from the same defect. That application was not true, correct and complete in spite of the attestation to that effect given by” Bapari.
The MD didn’t see the “circumstances surrounding the misrepresentations” as extenuating, or serving to lessen the seriousness of his actions, because Bapari didn’t have to use a false identity, said the decision. “Wanting a better life in Canada cannot be an excuse to undermine the integrity and fairness of Canada’s immigration system,” it said. “The misrepresentations constitute a very serious and intentional deception.”
“The MD emphasized that, as a previously deported person, Bapari “was banned from returning to Canada: a written authorization was required. Hence, the misrepresentations had the effect of circumventing the process. The admission of guilt and the remorse expressed by (Bapari) do not overcome the actions taken to circumvent immigration and citizenship laws.”
The MD examined Bapari’s social ties in Canada. “The decision maker notes in passing that (Bapari) has been living with his wife for 23 years without any trouble with the law. Good ties and roots have been established, including participating in community and religious activities. Stable employment is acknowledged; the loss of citizenship would result in an inability to work, which would put the couple in financial distress. The MD reckons that the revocation of citizenship could cause great emotional, psychological distress to (Bapari’s) wife, together with the financial stress resulting from his inability to work.”
Bapari also “now suffers from chronic diseases, which require medical treatment,” said the decision, which does not elaborate on his health condition.
“The MD considered Bapari’s “misrepresentations in and of themselves as being so grave that no personal circumstances appear to warrant special relief,” said the judge. “The integrity and fairness of the immigration system are put on a pedestal without engaging with the actual personal circumstances.”
Furthermore, the MD “puts the bar very high in requiring that (Bapari) demonstrate ‘extenuating circumstances that necessitated (his) misrepresentation to Canadian authorities.’ Without any explanation, the MD turns ‘special relief’ into a requirement that the misrepresentations be a necessity, perhaps even duress has become a must.”
No explanation was offered to Bapari “for such a restrictive view of what warrants ‘special relief,’” said the judge. “An explanation is needed for the reviewing court to assess its reasonableness.”
Roy concluded “that more and better is expected of a decision maker,” according to his decision. “The power over vulnerable persons brings with it the high responsibility to ensure that the reasons have duly considered the consequences of the decision when Parliament has instructed that personal circumstances be considered with a view to warrant special relief.”
“The MD’s reasons provided in this case “are not adequate to the task,” said the judge. “Whether or not the outcome might be reasonable is not relevant. It is the process leading to the outcome which is deficient, making the decision under review not reasonable.”
They’re “inadequate in view of the stakes,” Roy said. “As a result, the matter must be sent back to a different decision maker for redetermination.””
Source: “Immigrant who came to Canada using a false identity wins another shot at retaining citizenship”
Multicultural Meanderings 