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INS31415927

Newbie
May 11, 2016
1
0
Hello all,

I was looking through the forum to find a similar topic but I could not find one so Im writing my issue here now.

I was convicted for tax fraud in 2014 in germany and I am on probation. I made a big mistake back then and I have to accept this and I have.

I came to Canada in 2014 for some months to study and meet my wife. We married in december 2014 and she is pregnant now 6 months. We both are very happy. I applied for a work visa and got one and I worked succesfully for a year in a good job. My work visa expired and we were granted a renewal just some months ago.

We now want to apply for a pr card for me, my wife is sponsoring me. I still have a criminal record back from 2014 not showing any entry and it was accepted for all visa.

My question and my fear: Applying for the pr card, can I include the record showing no entry or doesnt it matter anyways as the CIC is receiving information anyways from the foreign country itself?

My fear, stating now that I was convicted am I still eligible for a pr card? I really dont want anymore trouble and I would rather fill out the form stating that I was convicted. How does this affect the application and what exactly is the process of the CIC to check every application?

Please let me know. Thanks in advance
 
You'll be apply for PR - not a PR card technically (the card is something you will receive later). More specifically your wife will have to sponsor you for PR under the spousal sponsorship program. As part of the application process you will have to provide a police certificate from your home country and CIC will also conduct a separate background / security check. In the application, you will have to mention the conviction when asked and provide all of the details. If your fraud conviction impacts your application will depend on what charge your conviction equates to in Canada. If you were previously approved for a work permit and you declared your conviction in that application, then you should be fine for the PR application.
 
Of course, if you didn't declare your conviction when applying for the work permit or extension when you should have done so, you may be accused retrospectively of material misrepresentation... This could result in a five-year ban from Canada.
 
To OP:

Assuming that you would like to apply for PR status under spousal sponsorship, you will have to disclose the prior conviction from 2014, and obtain relevant police certificates. This may lead to your being viewed as being criminally inadmissible. However, you should look at the rules for criminal inadmissibility in the IRPA Act which can be viewed in Section 36 as per http://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-8.html#h-23

IRPA 36 Criminality

(2) A foreign national is inadmissible on grounds of criminality for
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;
(b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament;
(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament; or
(d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.

Application

(3) The following provisions govern subsections (1) and (2):
(a) an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily;
(b) inadmissibility under subsections (1) and (2) may not be based on a conviction in respect of which a record suspension has been ordered and has not been revoked or ceased to have effect under the Criminal Records Act, or in respect of which there has been a final determination of an acquittal;
(c) the matters referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated;
(d) a determination of whether a permanent resident has committed an act described in paragraph (1)(c) must be based on a balance of probabilities; and
(e) inadmissibility under subsections (1) and (2) may not be based on an offence
(i) designated as a contravention under the Contraventions Act,
(ii) for which the permanent resident or foreign national is found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or
(iii) for which the permanent resident or foreign national received a youth sentence under the Youth Criminal Justice Act.


I suggest that you print and read this section, and indeed the whole of the IRPA act. It is not too long. There are at least three possible options for you:

1) As per IRPA 36(3)(b) one way you may be able to overcome any potential inadmissibility is to show that your conviction has been "cleared", "expunged", "pardoned" or "spent" based on whatever the equivalent process is in Germany for Rehabilitation. Canada *may* accept you as being admissible if you can show that you have your conviction has been "cleared" in Germany AND that the laws and rules of Germany are of a similar standard to Canada. There is an important case of Saini v. Canada at the Federal Court in Canada which I strongly recommend that you print and read: http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31531/index.do?r=AAAAAQAFc2FpbmkB

2) As per IRPA 36(2)(b), another way you can overcome any potential criminal inadmissibility is to show that if you had committed the particulars of the offence that you did in Germany in Canada, then you would not have been convicted of an Indictable offence under an Act of Parliament. You need to check carefully the Criminal Code of Canada and try to identify the offence in Canada that has the "essential ingredients" or is most similar to the offence for which you have a conviction in Germany. You can find the Criminal Code here: http://laws-lois.justice.gc.ca/eng/acts/C-46/ What matters is not the sentence you got in Germany, but the maximum sentence that you *could have* obtained in the worst case if you had been convicted of the offence in Canada.

3) A third way is to apply for Individual Rehabilitation, but this can only be done 5 years after the *completion* of your sentence. If you have done probation, then what matters is not the date of conviction or sentencing, but the end of the probation period. So the 5 years must be from the end of the probation period. If you can show that what you did was not an Indictable offence under an Act of Parliament in Canada or that the maximum sentence was less than 10 years in Canada (i.e. not 10 years, 14 years or Life in prison), then you have a better chance of being accepted as being rehabilitated. The usual application for individual rehabilitation requires you to demonstrate that you no longer represent a risk of offending, and that you are reformed and rehabilitated. Usually you should provide a few references from notable people in society and references from employers after your conviction. To be of stronger value the reference from your new employer(s) should probably state that they know about your conviction and that you informed them of it.

If you need more guidance, please feel free to send me a private message.