As I mentioned in my last column, during the last few weeks, I have received letters from several persons seeking solutions to immigration problems. Last week I replied to a letter from a migrant farm worker who wanted to know what were his chances of obtaining permanent resident status in Canada. This week I will reply to another letter. It comes from an adopted person, a native of the Caribbean who is now a Canadian citizen. She would like to sponsor her elderly mother who lives alone in the Caribbean. Please note that the information provided in this column should not be taken as legal advice.
Dear Mr. Ram:
I am a Canadian citizen, formerly from the Caribbean, and I am well established. I am happily married with two minor children. My husband and I are both professionals. In the late ’90s, I was adopted by an uncle and aunt in Canada. I am the only child of my parents who were very poor and unable to give me a proper education and provide me with the basic necessities of life.
My biological father is now deceased and my biological mother is having a very difficult life in her home country. She is elderly and lives by herself and is unable to get all the medication she requires and there is no one to give her emotional support. I have retained a paralegal who assured me that I can sponsor her.
He commenced sponsorship proceedings and the application was sent overseas for completion but was refused. He then filed an appeal with the Immigration Appeal Division and he assured me that my chances are good at the appeal, as he can argue “humanitarian considerations.” as mentioned in the application.
I am awaiting a date for this appeal but somehow I am not comfortable with some of his answers to my questions as he is requesting more information every time I see him. I have already spent a lot of time and money in this matter. So I am seeking some independent information. Can you tell me what are my chances? I look forward to reading your reply in your column.
You say in your letter that you were adopted and sponsored as a landed immigrant. As a result, all your rights with your biological parents were severed. Under Canada’s immigration laws, you are not eligible to sponsor your mother as you are not a member of the family class in accordance with the Immigration and Refugee Protection Regulations.
You did not state in your letter why your sponsorship application was refused but it is more than likely on the grounds that you are not a member of the family class. A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is (c) the sponsor’s mother or father. Clearly, you have given up this right when you were adopted. So you cannot sponsor your biological mother as your legal ties with her has been severed at the time of adoption. In the circumstances, the application will be refused.
However, you have stated that an appeal has been filed. Now let us look at the jurisdiction of the Appeal Division.
The refusal of your application is valid in law since you are not a member of the family class and therefore as a consequence, the Immigration Appeal Division has no jurisdiction to consider humanitarian and compassionate grounds in accordance with the immigration law.
If the visa officer findings were that there are insufficient humanitarian and compassionate grounds to overcome the inadmissibility and to issue a permanent resident visa to your adoptive mother and this is the issue being challenged, such a challenge is not within the purview of the Appeal Division but must be brought before the Federal Court of Canada within the appropriate time frame.
The law provides that in an appeal respecting an application based on membership in the family class, the Immigration Appeal Division may not consider humanitarian and compassionate considerations unless it has decided that the foreign national is a member of the family class and that his or her sponsor is a one within the meaning of the regulations.
In my opinion, your best course is to withdraw your appeal. It should also be noted that at the time you received the refusal from the visa office overseas, instead of filing an appeal with the Appeal Division, your representative should have advised you to seek judicial review of the decision, if it was based also on humanitarian and compassionate grounds.
Please note that the information provided here is not a substitute for legal advice.
SUKHRAM RAMKISSOON is a member of ICCRC and specializes in Immigration Matters at No. 3089 Bathurst Street, Toronto, Ontario. Phone 416 789 5756.