There are several reasons why a Canadian Citizen or permanent resident is ineligible to sponsor a member of the Family Class – spouse, parents, children, etc.- under immigration laws.
One question in the Application to Sponsor, Sponsorship Agreement and Undertaking Form, is “Have persons you previously sponsored or their family members received social assistance during the validity period of the undertaking? If the answer is yes, then you cannot sponsor unless the amount collected from social services by your relative during the validity of the sponsorship agreement is paid by you.”
To address this, I will discuss the facts of one of my cases which was recently favourably resolved by the Immigration Appeal Division. I will refer to the sponsor as Rex and his spouse as Jane.
Rex, a Caribbean national, married Jane, a national of the Philippines , in her country in September 2010 and through my office submitted a Family Class Sponsorship application. It was determined by the visa office after reviewing the application, documents and submission that Rex did not meet the requirements for sponsoring.
The refusal letter states Rex was ineligible to sponsor as he was in default of more than one sponsorship undertaking. In a fairness letter sent to Rex before refusal he was told he was in default of three of his child undertakings. The social services request form refers to four children.
Rex was subject to an undertaking for his four children from 1994 for 10 years or until they reached the age of 25, whichever came first.
He was informed about the money that was collected by three of his children and he fully repaid these amounts during the time of processing his present sponsorship. However, the issue was that his children collected welfare before he initiated the sponsorship for his present spouse and that he was in default at the time he filed the sponsorship application.
His sponsorship application was rejected as Rex remained ineligible to sponsor as he was in default of a previous undertaking. He appealed that through my office to the Immigration Appeal Division on July 2013.
He was aware since June 21, 2012, that he was in default for one child in the amount of $854 but was not aware of any other amount. However, Rex, together with my office, made efforts since that time to determine what he owed and was willing to pay but was unsuccessful.
His appeal came up for hearing before the IAD in September. Again he was represented by this writer. It was conceded that the refusal is valid but relied on humanitarian and compassionate grounds. It was submitted that if he was informed that he owed an amount he was willing to pay.
The panel noted that my submission was credible, especially that since June 2012 my office inquired about letting me know of any outstanding sponsorship debt for which he was in default.
There was also evidence that Rex and his counsel kept a log of the calls made and that the ODSP office was reluctant to give counsel any information despite written authorization.
Rex testified that he was willing to pay any outstanding debt standing in the way of his sponsorship of his wife.
The minister’s counsel did not take issue with the genuiness of the marriage so the only issue before the panel was humanitarian and compassionate consideration as Rex is sponsoring his wife.
The minister’s representative objected to granting special relief and submitted that Rex previously sponsored four children and that there was a default for each one and all of them went on social assistance and that he continued to be in default.
In conclusion, the panel ruled that the main hardship is that two spouses have been separated for several years. Family separation is the main hardship, the panel ruled.
The panel further noted that once Rex was aware of the default, he acted in a manner that consistently demonstrates he wants to clear the defaults and cited that as the main reason why they ruled that special relief is warranted.
The panel further noted that “given that I accept his evidence that he is willing to pay, if there is something that he owes (but he indicated that nothing is owed) I do not think the legal impediment is on the very serious side at this time.”
The panel allowed the appeal and set aside the visa officer’s decision, ordering that an officer must continue to process the application in accordance with the reasons of the IAD.
Good luck, Rex!
Sukhram Ramkissoon is a member of ICCRC and specializes in immigration matters at 3089 Bathurst St., Toronto. Phone 416-789- 5756.