International Students Hustled By Immigration Consultants: The Law and Possible Outcomes

In recent months, a significant number of students were issued deportation notices or notices of removal by the Canadian Border Security Agency (CBSA) after their admission offer letters to educational institutions around the country were found to be fabricated as part of wide-scale scam run by a company called Education Migration Services in Jalandhar, India. The company’s office is now closed, and the consulting firm’s head has since disappeared. The company charged students thousands of dollars to handle college and visa applications and to cover tuition costs, and the students were unaware their admission letters were fake.

The large majority of students taken in by this scam came to study in Canada in 2018 and 2019. Many of them completed their studies and obtained work permits to remain in Canada. Unfortunately, this type of scam is widespread and not just related to this one immigration company.

Immigration Minister Sean Fraser said in a tweet on May 26, 2023, that Immigration, Refugees and Citizenship Canada (IRCC)’s goal is to identify the culprits of these scams, rather than to penalize victims. His tweet goes further to say that “Victims of fraud will have an opportunity to demonstrate their situation & present evidence to support their case.”

However, for the many students who have received notices of removal from Canada, the process to stay in the country and prove a lack of wrongdoing on their parts is one filled with anxiety and stress.

So, what are the possible outcomes of challenging a removal order in these circumstances? Is there any hope for these students?

Whenever someone is accused of having made a misrepresentation in their application for a study permit or any other type of application for a visa, they may be found to be inadmissible to Canada under section 40(1)(a) of the Immigration and Refugee Protection Act (IRPA). The Applicant would then be inadmissible to Canada for 5 years as per section 40(2) of the IRPA.

There is a narrow “innocent misrepresentation exception” that acts as a defence to s. 40(1)(a), but it has to include all of the following elements:

1.    The applicant honestly and reasonably believed they were not misrepresenting a material fact;

2.    Knowledge of the misrepresentation was beyond the applicant’s control; and

3.    The applicant was unaware of the misrepresentation.

The court also considers whether or not the applicant reviewed their application for accuracy before it was submitted. Signing a blank form and simply relying on a third party such as an immigration consultant to fill it out does not fall under the “innocent misrepresentation defence” and is not a valid excuse. The court finds that the applicants in these types of cases are responsible for ensuring their applications are truthful and complete, and if they do not take this step or simply sign a blank form, they are victims of their own negligence and not the negligence of the third party.

When a final decision is made by either a Visa Officer or by the Immigration Division (ID) in a person’s immigration case, their next step is to apply for a judicial review with the Federal Court of Canada. Their arguments are typically limited to whether the original decision-maker’s decision was reasonable given the evidence that was available at the time of the decision, unless the standard of review for correctness applies. Whether a reviewing court should determine whether reasonableness or correctness should be applied is defined by another case, called Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65.

In Pandher v. Canada (Citizenship and Immigration), 2022 FC 687, an applicant for a study permit was accused of having misrepresented important information related to his educational qualifications and that he was therefore found to be inadmissible to Canada under section 40(1)(a) of the IRPA.

Specifically, Mr. Pandher had submitted an Application for a Study Permit made Outside of Canada which included his secondary school grades. He had reviewed the application and supporting documents for accuracy before signing, and this was not the case of an applicant signing a blank form. However, unknown to him, his immigration consultant had changed his grades on his secondary school certificate before submitting the application.

The applicant was successful in court and his case was sent back to a different Visa Officer for redetermination because the original Visa Officer was found to have failed to consider whether the “innocent misrepresentation exception” applied to the applicant’s situation.

In Singh v. Canada (Citizenship and Immigration) 2023 FC 747, the applicant’s immigration consultant had submitted two applications for a study permit on his behalf, without his knowledge, and they had been denied. The third application submitted by the immigration consultant included a fake letter of acceptance and an official receipt for payment of fees from the College of North Atlantic in Gander, Newfoundland. This application was granted and, after the applicant arrived in Canda, he decided to study at Canadian College in Vancouver instead. He completed his studies there.

Shortly after the completion of his studies, the CBSA interviewed the applicant and advised him that the letter of acceptance and payment receipt were fake. The Immigration Division (ID) found the applicant credible and that the immigration consultant had duped him.

Despite this, the ID found that the fraud was not beyond the applicant’s knowledge. For example, the ID said that the applicant only attempted to call the college in Newfoundland once about the payment of the fees, that he did not bother following up or looking into it further, and that he gave “blind faith over to” the immigration consultant. The misrepresentation was both in the application that the applicant reviewed and in the supporting documents. The ID also found that the applicant should have told CBSA on his arrival into Canada that he intended to study at a different college.

In this case, the ID member even noted that the applicant was “genuinely unaware of the misrepresentation and the fraudulent nature of the acceptance letter and receipt” and that “he hoped there would be increased focus on those who dupe potential immigrants to Canada, rather than the applicants who are victims.”

The applicant lost his case, and the court dismissed the applicant’s judicial review application of the ID’s decision to declare him inadmissible and remove him from Canada.

In our view, the answer to what will happen to the students that are currently facing removal orders for similar reasons as Mr. Singh, and the way their cases will be decided, depends on whether a reviewing court determines that their circumstances fall under Pandher or under Singh or in between.

There is unfortunately no clear-cut answer, though there is some hope that the ID may see a fake admission letter as having been completely out of the applicants’ control.

Judicial review is a complicated process and is also the primary way immigration outcomes are decided

For assistance and advice with the judicial review process in your immigration case, contact our lawyers at Apna Law LLP.