links18 said:
If the current standard in Canada is that some bureaucrat can unilaterally decide to revoke your citizenship and do so simply by sending a letter to your last known address that is a travesty for concepts like due process and procedural fairness. Lets hope that gets changed really quickly with strong protections (not perfunctory hearings) for people facing something which approaches a kind of social death penalty.
What are some things that may be "material" versus simply "relevant" when it comes to citizenship and who decides the difference?
There are few citizenship revocation cases providing much about how this works in citizenship cases. There are also only a few cases addressing misrepresentation made in the application for citizenship which constitutes grounds for denying the grant of citizenship.
Historically, the bar for citizenship revocation was very, very high . . . even as the courts emphasized that it was no higher than for other cases, but practically there was profound scrutiny and strict reasoning in assessing what was a sufficient misrepresentation to justify the revocation of citizenship. As such, even cases where the individual clearly failed to divulge serving in certain capacities with the Nazis, including roles related to documented war crimes, typically took many, many years to process to completion and actual loss of citizenship.
While the Bill C-24 changes dramatically trimmed the process, including critical fair procedure safeguards, it did not significantly change the grounds for revocation based on misrepresentation (there were changes, but these mostly clarify what was less precise in the prior version, in effect prescribing specifically that misrepresentations made in the process of immigrating to Canada as well as in the process of applying for citizenship constituted grounds for revocation).
The procedure now in place is an issue, a problem (from the perspective of those who demand fair procedures and justice generally). Personally I am not sure it will survive judicial review (in an appropriate case -- it appears dozens or more have simply rolled over without contest, most likely for obvious reasons). It warrants revision in any regard.
That said, for those who contest revocation, ultimately the subject of revocation proceedings will be entitled to judicial review, so ultimately the
decision about what constitutes a
material misrepresentation sufficient to revoke citizenship will be determined by the Federal Courts.
In the meantime, there is a great deal of jurisprudence regarding what constitutes a material misrepresentation, and this jurisprudence will apply at least as much to a citizenship revocation as it does in other contexts.
In particular, there are scores and scores of IAD decisions, and enough Federal Court review of those decisions sufficient to put the IAD decisions into context (recognizing that IAD decisions only illustrate application in practice and do not constitute formal declarations about what the law is), which illuminate the distinction between misrepresentations which are:
-- not relevant (which it appears the U.S. government advocates is sufficient to constitute grounds for revoking citizenship)
-- relevant
-- relevant
and material (which is what is required to impose any of the penalties Canada provides for misrepresentation in immigration or citizenship matters)
While the threshold is not that the misrepresentation would have changed the outcome, but merely that it either could have changed the outcome or could have led IRCC to make further inquiries into information which could have resulted in a different outcome, this nonetheless imposes a substantial burden.
In many if not most cases, the analysis is fairly straightforward.
Among the few Federal Court decisions about misrepresentation in the application for citizenship, constituting an independent and sufficient ground for denying the application, there is the case which was one of those that alerted CIC to widespread consultant-facilitated fraud. The applicant's residential address listed in the application was in Mississauga. Someone at CIC finally recognized that this was an address used, literally, by several dozen other applicants, and upon further inquiry it was discovered that it was an address in largely an office complex area, and that very similar addresses (just a few numbers different) had also been used by many applicants. That ultimately led to the consultant, and the exposure of scores of that consultant's clients who had similarly used a bogus address.
But in the particular case that started this, the applicant appealed the denial of his application. (Sorry, I do not have the citation handy.) He actually lived in Montreal, he asserted, and only used the Mississauga address on the advice of the consultant, based on the fact that (at that time) processing times for Montreal applicants were much, much longer than they were for Mississauga applicants. (Ironically, because the focal point of a lot of discovered fraud was in Mississauga, following this the Mississauga time line became one of the longest processing times for a number of years.)
His position was that the misrepresentation as to his residential address was not material because he actually lived in Montreal and still met all the requirements for citizenship. That is, he asserted that even if CIC conducted further inquiry, and confirmed he lived in Montreal, that would not have changed the outcome.
The court (as I recall) did not waste a lot of breath addressing its contrary conclusion, that a misrepresentation of residential address is material, and therefore justified the denial of the application even if the applicant otherwise met all the requirements. And indeed, this requires little in-depth analysis. Where the applicant actually resides is a necessary element in a
residency requirement (the rule at the time, the 3/4 rule, was a
residency requirement).
What about now, however, since the current requirement is
NOT a residency requirement but merely a physical presence requirement? My sense is that the outcome would be the same, that a misrepresentation about where one actually lives is a material misrepresentation. This might invite a more in-depth analysis about how it could lead to the discovery of information which might change the outcome, but that would not be particularly complex or obscure, it being fairly easy to see that where one actually lives is material.
Nonetheless, what constitutes material misrepresentation, except in the obvious case, tends to be very fact and circumstance specific. It is not easy to draw generalizations about this.
In the meantime, it warrants distinguishing the effect of misstatements or errors of fact generally and formal determinations of misrepresentation. Remember, to constitute a misrepresentation, the statement must be a deliberate misstatement or at least deemed to be deliberate (situations in which deliberateness is inferred circumstantially, or is otherwise charged to the person . . . thus, for example, it is no defense that a consultant or family member entered the erroneous statement). Applicants commonly make all sorts of errors and omissions in their applications. IRCC does not penalize applicants for minor discrepancies. For more significant errors, omissions or inaccuracies, IRCC will typically factor this into its assessment of the applicant's credibility and otherwise evaluate the case taking the errors into consideration. We see scores of applicants who failed to report all absences, more than a few failing to report rather extensive absences, who are not denied citizenship on the grounds of misrepresentation . . . even though information about time outside Canada is clearly material. Those whose application is ultimately approved, resulting in a grant of citizenship, do not need worry about revocation for misrepresentation
unless, of course, the extent of the inaccuracy or omission either would directly change the outcome or it is otherwise apparent the applicant was willfully deceiving IRCC. (There have been at least a few of these cases which have reached judicial review, and they involve blatant and extensive misrepresentation about time outside Canada.)
Overall, much of the alarm about potential revocation of the innocent is grossly exaggerated. There is a greater likelihood of being falsely accused of a serious crime like murder. My guess is that it is not so much different in the U.S. despite the linked case and the U.S. attorney's ludicrous position that the failure to disclose traffic offenses, like speeding, is a misrepresentation constituting grounds for revocation.
To be clear, however, this does not minimize the need to revise the procedure to better protect citizens from, say, a future Harper, or say a Bernier or Leitch government (or just about any of those who are in the current Conservative leadership race, including some whose immigration views have not had a lot of coverage but which tend to lean toward Trump or more severe). The current process puts the burden on the citizen to not only defend himself or herself, but to obtain review, with minimal procedural safeguards along the way. But again, this does not lower the bar relative to what constitutes grounds.
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