Removal Order Appeal (Ingenuine Job Offer)

The appellant Mr. Z is a young man in his late 20s. He came to Canada in 2001 as an international student and graduated from university in 2008. He utilized his experience from mid 2008 to mid 2009 to apply for immigration under the Canadian Experience Class and became a permanent resident of Canada in 2011. In 2015, his application was dug out for providing fake employment experience in his application. Mr. Z received his removal order from CBSA in 2016, and he filed for appeal. His hearing is scheduled in 2018.

An ingenuine job offer, in general, means that the applicant had a deal with the employer by not actually working for the employer, but got paid. Just like how Andy in the ending of The Shawshank Redemption created a person on the paper file, this type of applicants creates their employment evidence on the paper file as well. There are three things worth noting in this specific case.

First, the appellant of this case did work for the employer at the beginning. However, for some reasons out of the poor operation, his employer had to lay him off. It is since then that the employer proposed to keep him on the payroll, but he actually worked for the employer for free, as he would pay the salary back to the employer by cash. In other words, unlike most violations in this type where the employer intends to “sell” the job positions with the only purpose to make money from those who want to immigrate to Canada, Mr.Z’s misrepresentation is less serious.

Second, appellant has been very proactively looking for employment opportunities, even after he became a permanent resident of Canada. Since 2011 to his hearing in 2018, except for a few months of vacation for his marriage purpose, he had been either studying the aircraft maintenance or working in this field. Moreover, in the near future he is going to be licensed as a Professional Engineer, which would make him fill in the labour shortage of the job market.

Three, though he did not retain any professional to represent him at the hearing, his English is good enough and he seems smart. He even knew that he should attend a few public hearings of this type in advance to prepare his own hearing. To be frank and fair, in certain cases, it is actually advantageous to the appellant to answer directly to CBSA’s Counsel (you can roughly regard it as the Prosecutor) and the Member of IRB (you are roughly regard it as Judge). For example, in this case, the appellant Mr. Z concedes his misrepresentation in the very beginning of the hearing, which turns this case into a Humanitarian & Compassionate (commonly referred as “H&C”) case. In an H&C case, if the appellant speaks English, his words would have much more emotional impact to the CBSA’s Counsel and the IRB’s Member. For example, one of the factors in an H&C case is the level of remorse you demonstrated during the hearing. Interpretation at an IRB hearing is always a consecutive one (rather than a simultaneous one). You cannot expect your interpreter (usually appointed by the court) to interpret your words as well as your facial expression and tone, etc, and there is lag time between your response and IRB’s reception. I can notice that the IRB’s Member and CBSA’ Counsel were emotionally impacted when Mr. Z said he was willing to take all consequences for his behaviours.

However, there is one important factor that he did not plan in advance, which could considerably reverse the direction of his outcome. The factor is his wife. It seems Mr. Z did not do any pre-hearing preparation to his wife, and did not know what she plans to say at the hearing. Do keep in mind that you want to LOOK spontaneous in a cross-examination, but not really spontaneous without proper preparation. Getting back to this case, what irritates the court is when his wife said, “my husband is not guilty”. I can imagine that any wife who loves her husband tends to say this. As long as she starts it, the Member responds immediately (which usually would not happen, the Member usually proposes questions after the witness finishes), “OK then what would make him guilty in your opinion?” (Not exact wording). And then Minister’s counsel asks, “If your employer wants you to pay back the salary, would you still think this is normal?” (Not exact wording) At this point, Mr. Z’s wife still insists that there must be reason for this. Her testimonials lead to very awkward situation during the rest of her witness.

I strongly recommend anyone preparing for a hearing to seek professional advice and guidance, even though you do not need to retain them for representation at the hearing.

上诉人Z先生，中国公民，2001年来加拿大留学，2008年从KPU毕业，学的是人力资源管理，2008年7月到2009年9月用了一段假的工作经验申请CEC，2011年成为PR。2015年受Wang Xun造假案牵连，2016年9月拿到removal order。

但这个案子的有些特殊之处，第一就是上诉人一开始是真的找了个工作，结果是中途这个公司可能因为效益不行的原因把他lay off了，然后雇主才建议他继续给他开工资，只是钱要返回给雇主。也就是说雇主其实也并没有以赚钱为目的，而且这个上诉人在返钱给雇主期间，还是一直在雇主处上班，等于上诉人干了一年无薪工作。换句话说，他的misrepresentation情节相对来说比现在很多工作作假的案子轻微的多，现在的假案子都是申请人主动花钱买职位，或者雇主主动为了赚钱卖职位，跟本案无关为就不多说了。

第二，这个小伙子跟那些花钱买职位，在家摊成泥的申请人不一样，确实很能干。他自从2011年以移民身份登陆之后，除了结婚给自己放了几个月假回国之外，其他所有时间要么在上学学技术，要么上班，学的是aircraft修理，今年眼看就拿到Engineer的牌照了，这五六年内的工作，大部分都跟机械修理相关，也就是说他的工作内容其实是加拿大比较急缺的。

第三，上诉人没有请人代理案件，但是他很年轻，英语也不错，人也挺聪明，所以知道提前去旁听案子学习一些上庭经验，而不是明明啥也不行非要自己逞能所以才不请律师的。坦率地讲，在某些特定的情况下，很多事情由上诉人亲自说出来其实更好。比如这个案子，他上来直接concede misrepresentation，这样就可以让案子变成一个纯H&C的案子。对于一个纯H&C的案子，有一些factors如果上诉人会说英语，他自己说是更有冲击力的，比如H&C的其中一个factor是remorse，你如果显示的悔恨是用中文说的，然后在法庭上再被法庭翻译一遍，时间滞后，翻译也不可能替你声情并茂，等到了member和对方的counsel耳朵里的时候，效果已经打了很多折扣。如果从我们这些Counsel嘴里说出来也一样。比如我说，这些行为表明上诉人已经深刻意识到自己的错误，远不如他自己有力量。比如他当时说，我愿意为我所做的一切承担后果，即使被驱逐出境，我也心甘情愿。member和对方的counsel都是女性，对他的案子非常有利，我在好几个瞬间偷偷观察到她们表露的同情，感觉到胜利的天平已经明显向上诉人倾斜。

结果，他千算万算，没想到被自己的队友坑了，就是他老婆。原来他并没有提前跟老婆对好要怎么说。我很明白他是怎么想的，因为想看起来很诚恳，所以肯定是打算法庭上问什么就说什么，不需要排练，一切都是真的。但这个是我们这些Counsel最忌讳的，我们要达到的效果是看，起，来，没有经过任何训练，但不是真的没有经过训练。我们一定要知道你会怎么答，大部分庭审的counsel最怕出现的就是，我们演练的时候我告诉你了，我问这个问题的时候，你一定要这么说，但他真上了庭就是不这么说，真的会把我们气死。好，说回这个案子，他老婆在陈述的时候，说了一句，我的丈夫not guilty，member一听就反问她？not guilty？那好你倒是给我说说看什么是guilty，他的工作是假的，这不是guilty是什么？minister‘s counsel (MC)只问了她一个问题，如果你现在的公司要求你把工资全退回去，你觉得这没问题的吗？结果这位队友仍然一口咬定，那我要先搞清楚为什么要把工资退回去，说不定有合理的原因。气氛一度搞的非常僵，MC那边简直是要翻白眼了。我知道这位队友想的肯定是，法庭上一定不能承认自己错了，成为呈堂证供对丈夫的案子不利。所以她不知道其实concede之后，案子有H&C的打法。经过这一折腾，上诉人大乱阵脚。

所以我建议及时是不打算请律师而是自己出庭的情况下，也完全可以找专业人士培训一下，做到心中有数。