One of the principal objectives of the Canadian Immigration program is to promote family reunification. A Canadian citizen or permanent resident may apply to sponsor a family member to become a permanent resident in Canada under the Family Class. Currently, 25%-30% of all new permanent residents to Canada are derived from the family class stream.
Although not all applications are approved, Canada’s immigration laws provide permanent residents with a number of appellate review mechanisms under the Immigration Appeal Division (IAD), a court of equitable jurisdiction, to address refusals of sponsored applications for permanent residence on behalf of members of the family class on spousal relationship applications. Most appeals are contested and owing to the volume of such cases at the Immigration Appeal Division across Canada, can take approximately 12-18 months to conclude.
There are a number of family class sponsorship applications that are considered “red flag applications”, where CIC will often refuse such applications unless all of the “issues” are effectively addressed. One such case is the sponsorship application submitted under the common-law marriage rules. Although CIC makes it perfectly clear that common-law applicants may apply for sponsorship under the Family Class, the reality is they are often refused. This is a very problematic circumstance for some people, in that they are generally unaware of the almost systematic refusals that can occur if important issues are not properly addressed in the application. Even Immigration Canada’s application kits that are made available to those hoping to apply under this program, hints at this circumstance as a potential for refusal:
“(Refusals can result if) the relationship between you and your sponsor is for convenience only, that is you and your sponsor…entered into a common-law relationship to allow you to stay in (or come to) Canada.”
Clearly, this is a delicate area for any couple wishing to pursue a successful sponsorship application and a properly constituted application prepared by effective legal counsel may be a viable consideration.
Alternative Dispute Resolution Process
In some instances, appeals can take a shorter route under the Alternative Dispute Resolution process (ADR). This is an uncontested process whereby the Minister’s representative, a Canada Border Services representative and the applicant’s legal counsel will agree to approve an appeal on the basis that the previous concerns of the Visa Officer who rendered the negative decision are no longer in doubt. This can occur under a number of scenarios such as for example where an issue of criminality has been clarified, or no longer has an effect on the admissibility of the applicant to Canada; or where the Canadian sponsor and the foreign national previously applying under the Conjugal Relationship guidelines have legally formalized their marriage.
The ADR process can substantially shorten the appeal. The formal appeal is filed with the Immigration Appeal Division requesting consideration for ADR. Submissions are included to address the concerns of the Visa Officer that gave rise to the refusal. There is no standard processing time, but in general, the majority of spousal sponsorship appeals that are processed under the ADR mechanism are concluded within a year.
The essence of this process is to give an early opportunity to an applicant to resolve their appeal after being denied. For the applicant, it is a chance to discuss their case, tell their story and engage in discussion with a representative of the Minister. An experienced immigration lawyer can be invaluable at this stage, and can often address the important issues in order to maximize the opportunity for the application to be resolved favourably.
ADR is an informal process. The Dispute Resolution Officer (who is not an employee of CIC) allows all parties to discuss the issues raised by the refusal. The applicant and their council may ask questions and may provide whatever information that will help their case. This process is also confidential. Regardless of the outcome, it will not affect the applicant’s right to a full appeal hearing thereafter in the event that ADR does not result in positive decision. In other words, appeal applicants have nothing to lose under the ADR process.
There is no standard format for an ADR, as it is an informal meeting. But the general flow of the process is as follows: the parties meet, if an interpreter has been ordered, they will meet the parties there. An opening statement will be offered by the Dispute Resolution Officer. After this point the applicant or their council may tell their story. Here, they may underline the merits of their case. Council may provide a very meaningful role by presenting information and providing reference to applicable case law which the Dispute Resolution Officer can use to render a recommendation.
At this point, the Dispute Resolution Officer may ask a list of questions. According to the guidelines given to Dispute Resolution Officers when they are given their training, as well as questions drawn from our experience in dealing with this process, typical questions include; why is it important to you that your relative come to Canada? Tell us about your relationship and how it developed. What is your understanding as to why your sponsorship was refused? This is just a sample, and there are many other questions that may be asked. It is important to be very well prepared for this engagement, as it is a delicate process and can weigh heavily on the recommendation of the Officer.
After questions and further discussion, the Officer will evaluate the case on the standard of likelihood of success at the appeal hearing. Here, the Officer will recommend that the appeal continue or that it be withdrawn. If the Officer recommends that the appeal is withdrawn because the Officer believes that the case will not succeed at the appeal hearing, for either the applicant or the government, the applicants may nevertheless proceed to the formal appeal stage as the outcome of ADR does not bear on the actual appeal hearing. On the other hand, if the Officer believes that the applicant’s case will succeed at the appeal hearing then a positive recommendation will be rendered which is generally followed by the government.
ADR helps resolve about 60% of sponsorship appeals and, if pursued in an organized and thoughtful way by the applicant, this process saves time and reduces the anxiety that goes with the unknown of an appeal hearing. It is a good opportunity to have meaningful discourse with a representative of the Minister and to have the applicant’s side of the story told without all of the procedural hang-ups. Of course, the process is not straightforward, as evidenced by the number of negative recommendations that are rendered. But, with a strong case that is presented in a very well-organized and thorough way, the chances for success under ADR are significantly increased.
Interested readers with questions on the foregoing may contact Attorney Colin R. Singer by email at [email protected]
Since June 2002, when Canada’s immigration laws were amended to provide refused applicants for permanent residence with a right of appeal to the Federal Court of Appeal, with permission (known as “Leave”), the number of immigration related appeal cases before the Federal Court has been drastically reduced. In immigration matters, leave applications to the Federal Court are hard to obtain. Previously, this right of appeal did not require permission and consequently, refused immigration applicants had an easier access to a process of review of unfavourable decisions for permanent residence.
Canada’s immigration authorities lobbied hard to implement this barrier to appeal and now we can understand the practical effects of this current requirement. Visa officers, who are over burdened with growing case loads, routinely deny applicants the opportunity to address “concerns” with their applications. The applicant is presumed to know the law.
Recently, Canada immigration lawyer Colin R. Singer successfully sued the Minister of Citizenship and Immigration on behalf of a refused applicant for permanent residence. In the Federal Court decision of Shaker v. Minister of Citizenship and Immigration, IMM-3927-05, rendered on February 10, 2006, the court ruled that the visa officer breached a duty of procedural fairness when she did not clarify the ambiguity caused by the officer’s request to produce undertakings some of which the applicant had already produced. The Court also ruled that the assessment of the applicant’s employment experience and language abilities were unreasonable in light of the evidence before her.
The applicant had submitted six manuscript pages demonstrating his proficiency in English as well as two letters of employment outlining his duties. The visa officer chose to ignore this evidence and allotted the applicant a score of zero for language and zero for experience.
The case hinged on a letter from the attorney requesting a clarification as to what remained outstanding. The officer simply ignored the request for clarification and refused the application based on the evidence before her.
“Under the new leave rules before the Federal Court, it is becoming increasingly difficult for the voice of an applicant to be heard, even when it is evident that mistakes are being made. Strong applications submitted by highly qualified individuals are being routinely refused due to elementary and obvious errors being committed by an officer or by overlooked submissions” explains Singer.
According to Singer, visa officers, who have growing case loads comprising of applications for permanent residence and temporary entry applications to Canada for work and study, no longer fear that their name will be highlighted by the judicial review process. ”In most instances, the test to gain access to the Federal Court is very high and even if an applicant suffered an injustice, there might not be a right of appeal under the current rules”, he warns.
“Now, more than ever, a properly constituted application, with effective representation from legal counsel, can make all the difference in preserving an applicants’ future rights”, says Singer. ”The paper trail set by a trained attorney plays an important role in the ultimate success of an application to Canada under the current rules and thankfully, in this particular case, it was the deciding factor to set the decision aside”, he explains.
Applicants seeking entry to Canada should take careful note of this decision which can be found on the Federal Court web site as well as in the attached documentation: Shaker v. Minister of Citizenship and Immigration, 2006 FC 185.
If you are considering applying for admission to Canada or if you are faced with an immigration problem affecting your status or that of a close relative in Canada, please take the liberty to contact Canada Immigration Lawyer Colin R. Singer (888-817-2011 Toll Free in Canada or Continental USA) or by email – [email protected] to discuss any issue related to the foregoing.
The issue of medical inadmissibilty underwent an important clarification in a recent decision rendered by the Supreme Court of Canada. In the decision of Hilewitz v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, the court in defining the obligation of the Immigration authorities when assessing medical inadmissibilities, ruled that the Minister of Immigration, before refusing an application for residence, is required to consider all of the individual’s particular circumstances as well as the personal circumstances of the Applicant and his or her family in evaluating the “excessive demands” standard which could lead to the inadmissility of an applicant. Non medical factors such as the availability, scarcity or cost of publicly funded services along with the willingness and ability of an Applicant or his or her family to pay for the cost of private support, must also be taken into consideration by a visa officer.
The case involves two families Hilewitz and de Jong who had applied as business immigrants to Canada, one as an Immigrant Investor and the other as a Self Employed. The visa officers in both cases refused the applications for residence on the basis that the medical officer’s opinions concluded that their intellectually disabled children’s admission to Canada would likely cause excessive demands on Canada’s health or social services. Both families had provided compelling evidence of their intention and ability to provide private social care for their intellectually disabled children. The Court relied on evidence to the effect the the visa officers had not taken into consideration the individual circumstances of each family but instead had merely confirmed the medical officers’ negative findings. The refusals were based more on conjecture, speculation and remote possibilities of excessive demands rather than on reasonable probabilities. The court opined that such an approach disregarded a family’s actual circumstances, replacing the purpose of the legislation with a “cookie-cutter” methodology. The court found that it is incongruous to interpret the legislation in such a way that the very assets that qualify investors and self-employed individuals for admission to Canada can simultaneously be ignored in determining the admissibilty of their disabled children.
The case centred around the excessive demand provisions of the former Immigration Act, which have been replaced by s. 38(1)(c) of the Immigration and Refugee Protection Act, which provides that a foreign national is inadmissible on health grounds if their health condition might reasonably be expected to cause excessive demand on health or social services.
This decision which overturned the Federal Court of Apeal sets a ground breaking precedent that will allow prospective applicants applying for permanent residence to Canada or being sponsored by a member of the Family Class with disabling or perhaps other serious medical deficiencies, the opportunity to demonstrate to immigration authorities a willingness and an ability to lesson the impact of their children’s disabilities on Canada’s social services.
A judicial review of a decision made under Immigration and Refugee Protection Act involves a two stage process. At the first stage, known as the “permission / leave stage” an application for leave and judicial review undergoes a paper review. At the “permission / leave stage” the applicant must persuade the Court that the application raises a serious issue involving an error in law, a serious error in fact, a violation of natural justice or an excess of jurisdiction by the decision maker. This is a low threshold. A serious issue is demonstrated if the judge reviewing the application believes that the applicant has raised an arguable issue that can only be resolved by a full hearing of the judicial review application.
Once the application for leave and judicial review is filed, the applicant has thirty days in which to file an Application Record which includes the applicant’s affidavits and a written memorandum of argument. The respondent Minister of Citizenship and Immigration must file its responding material within thirty days after receiving the Application Record. The applicant may file a memorandum in reply within ten days of receiving the respondent’s materials. This is the final document exchanged between the parties before the determination of the ”permission / leave stage” of the application.
If leave for judicial review is denied, the application is dismissed and proceeds no further because there is no right to appeal from this decision. If leave is granted, the proceedings move to the second stage, the application for judicial review.
A judicial review application is different from an appeal. On an appeal, the judge decides the issues based on what the judge determined to be the correct answer when the law is applied to the facts of the case. Appeals are therefore concerned with getting the right decision.
Judicial review addresses the manner or the process in which the decision is made. For example, a judge may disagree with an officer’s decision, but if the judge is satisfied that the officer proceeded fairly, understood the facts of the case and acted within the authority of the Immigration and Refugee Protection Act, the judge may dismiss the application for judicial review.
In simplified terms, the main reasons for allowing an application for judicial review are:
- the decision make an error in law, whether the error is obvious or not;
- the decision maker got the facts wrong at a fundamental level, or appears to have ignored a fact of fundamental importance;
- the decision maker violated a principal of natural justice or failed to observe procedural fairness;
- the decision maker’s decision goes beyond the authority conferred upon him/her by the Immigration and Refugee Protection Act and its Regulations.
Accordingly, when the judicial review application is granted, the judge does not make the decision which, in the Court’s opinion should have been made. The initial application is remitted for re-determination by a different visa officer. The parties proceed as if the earlier decision had never been made. This means that the officer making the re-determination starts afresh and may consider any facts arising, since the earlier decision was taken.
Criminality has profound and long lasting consequences for individuals entering Canada or visiting the United States. Canada’s immigration laws prevent the admission of a foreign national who has committed an offence that if committed inside Canada could be considered an indictable offence in Canada. Many minor offences for example where an individual has been convicted within the past five years of an impaired driving charge, a small quantity drug possession, minor theft or assault charges will be inadmissible to Canada because such offences can be prosecuted in Canada either as an indictable offence or punishable on summary conviction.
Legislation in the United States, harsher than Canadian law, now prevents Canadians with any criminal record history from entering the US without first obtaining an entry waiver or a criminal pardon in Canada.
A criminal pardon awarded by the National Parole Board in Canada can be the vehicle by which applicants may qualify for entry to Canada either temporarily or on a permanent basis. Once a pardon is issued, all records of convictions in Canada that are otherwise readily available to anyone conducting criminal records verifications, including the FBI border personnel are removed from the Canadian Police Information Centre (CPIC) computer system and information regarding a conviction may not be given out except in rare circumstances. A pardon enables most people who were convicted of a criminal offence and who have completed their sentence, paid applicable fines, completed the terms of their probation and demonstrated good character for a period of either three years or five years, depending on the severity of the offence, to limit access of their criminal past to government agencies, potential employers and adoption agencies.
For pardoned Canadians entering the United States, their criminal records if not previously accessed from Canadian records will not be revealed to US authorities. For Canadians requiring US entry waivers, a criminal pardon issued in Canada will likely assist entry to the United States.
At the LAW OFFICES OF COLIN R. SINGER, we take pride in our past advocacy related accomplishments before the National Parole Board. We also provide assistance to Canadians requiring a US entry waiver.
If you are faced with a problem affecting your criminal history or that of a close relative in Canada, or if you require additional information in this area, please take the liberty to contact Colin R. Singer, Attorney by Toll Free telephone (1-888-817-2011) or by email – [email protected] to discuss any issue related to the foregoing.