By Sukhram Ramkissoon

In May 2012 an applicant was advised he was eligible to apply for permanent residence as member of the spouse or common-law partner class in Canada.

He was also advised that a final decision would be made after he obtained medical, security and background checks for himself and all family members.

He had a 13-year-old son who lived with his ex-wife in his country. He submitted a statutory declaration in which he purported to remove his son from his permanent residence application and his mother as she would not allow him to have his meds. He also sent a copy of his divorce petition.

The officer acknowledged there was an exemption to the requirement but said the applicant was ineligible for such as documentary evidence submitted indicated he had joint custody of his son. He was invited to provide evidence of his efforts to have his son examined.

In April 2013, the applicant traveled to his country to have his son examined and he stated that his ex-wife hid his son’s passport and the designated medical practitioner refused to examine the child without the passport to confirm identity.

In early May 2013, the applicant’s counsel provided a submission regarding his efforts to have his son examined. He also submitted copied of correspondence directed to his ex-wife, including an e-mail, letter sent by registered mail from his counsel, a letter from the applicant’s son, a letter from the applicant’s mother and a letter from a friend.

In late May, 2013 the officer refused the request to have his son removed from his application and in September 2013, his application for permanent residence was denied, because his  son did not comply with an immigration examination.

He then filed for judicial review in Federal Court. He argued that the officer erred in misinterpreting the act and regulations and that the refusal to waive the medical examination of his son was unreasonable. He says he made all reasonable efforts to present his son for medical examination and it was his ex-wife who prevented him from doing so.

The minister argued that the manual makes it clear an officer must be convinced “an applicant has done everything in their power to have their family member examined” but he failed to do so. The officer noted that he spoke to the applicant’s representative and “advised him that the evidence on the file is insufficient to consider waiving examination of the overseas dependent, especially considering custody is joint.”

The judge stated in his reasons “It is also apparent from the record as a whole that, given the importance of the decision, the applicant, and given the fact that he had custodial rights over the child in his country, it was felt that the applicant had not done enough to warrant a positive exercise of the discretion under the policy. He had not, for example asked the family court in his county to order his ex-wife to provide the child’s passport and permit and examination.”

It cannot be said that the officer failed to consider the applicant’s evidence and arguments on point. It is also clear the officer felt the facts did not warrant a positive exercise of discretion, especially given the custody situation, stated the judge.

The judge ruled “the decision is unfortunate and the court has considerable sympathy for the situation in which he finds himself but the court cannot interfere.”

This case clearly shows that all applicants to Canada with dependent children must have them be examined. Otherwise your application could be rejected.

Sukhram  Ramkissoon is a member of ICCRC and specializes in immigration matters at 3089 Bathurst St., Suite 219A,  Toronto. Phone 416-789-5756.