BY SUKHRAM  RAMKISSOON

I have recently received phone calls from several people  requesting information about sponsorship of  their spouses who they did not declare in their applications for permanent residence in Canada. So this week I will discuss what is  described as “excluded relationships.”

Let’s look at the recent case  of a woman  from Afghanistan who, for purposes of this article,  I will call Fatima. She had applied to sponsor her husband, Sham, who is also from Afghanistan. Her application was turned down but she appealed the matter. The case was concluded at the  Immigration  Appeal Division (IAD).

A refusal letter ( from  Citizenship and Immigration  Canada) sent to Sham dated October 29, 2015, was based on a section of the Act and Regulations, specifically:

“117. (9) Excluded relationships – A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.”

The visa officer found in particular that:

 “Your sponsor has not stated her change of status before or when she became a permanent resident.”

On December 23,  2015,  Fatima filed a notice of appeal with the Immigration and Refugee Board.

Fatima who was born in Afghanistan in 1987, was landed on October 1, 2009. She had married Sham in Afghanistan on September 17, 2009. But  she did not inform the visa post that she was married prior to traveling to Canada and at the port of entry. She declared that she was single.

On June 3, 2016, the Immigration Appeal Division (the IAD) wrote to Fatima asking for written submissions explaining why her appeal should not be dismissed on the grounds that  Sham was not a member of the family class, as he appeared to be excluded by the application of  section 117(9)(d) of the IRPR.

Fatima’s lawyer then made submissions which did not deal with the issue of Exclusion but only with humanitarian and compassionate considerations.

The  IAD ruled that “ as Sham   is not a member of the family class, the panel has no discretionary jurisdiction to consider humanitarian and compassionate circumstances.”

The following recent statement by the Federal Court may provide some guidance to Fatima and other persons similarly situated.

“Once the IAD determines that the foreign national is a non-family member (or the sponsor is not a defined sponsor), that ends its jurisdiction in respect of any claim for H&C consideration. The route of review in those situations is to the Federal Court by way of leave for judicial review.”

In the IAD ruling, the panel member stressed  that ” this is not a case where the visa officer failed to consider the humanitarian and compassionate considerations that were raised by  Fatima, rather, the visa officer considered them but came to the conclusion that “I do not see in this application of unusual and undeserved or Difficulties Difficulties disproportionate to the applicant, Fatima”.

In consequence, Fatima appeal  was  dismissed . She cannot

sponsor her husband under the Family Class Sponsorship.

SUKHRAM  RAMKISSOON is a member of ICCRC  and specializes in Immigration Matters at No. 3089 Bathurst Steet, Suite 219A, Toronto, Ontario.  Phone 416 789 5756.