The Immigration and Refugee Protection Act sets out specifically how a family member could be excluded from sponsorship under the Family Class Sponsorship.
A large number of persons who believe they can be sponsored to Canada by their spouse or parents are caught by a particular section 117(9) (d).
This states, 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 they cannot be sponsored.
If, however, at the time the reason for non-examination was that an immigration officer determined that they were not required, then and only then they can be sponsored under the Family Class Sponsorship.
Let us examine a case that was recently determined by the Immigration Appeal Division in which a spouse was not mentioned in the sponsor’s application to Canada and she was consequently not examined.
An immigration officer at the Canadian Embassy in Bogotá, Columbia, in July 2012 refused the application for a permanent resident visa filed by Mr. A’s wife Miss B on the basis that she did not form part of the family class by reason of the fact that Mr. A had previously made an application for permanent residence and his wife was a non-accompanying family member of Mr. A and was not examined as required by the immigration act.
As a resident of Canada he had the right of appeal and he exercised that to the Immigration Appeal Division and the same came up recently for hearing in Montreal.
The panel heard evidence that Mr. A. was part of a family of 10 people, headed by a single-divorced mother who fled their native country of Colombia and went to Ecuador where they were referred for refugee status to Canada by the UN high commissioner for Refugees (HUNHCR) in 2006.
An organization was involved in facilitating the applications filed by Mr. A and members of his family to Canada. In February 2007 Mr. A and Miss B were married.
In March 2007, Mr. A was interviewed by a Canadian immigration officer in Quito, Ecuador, at which time he indicated he was previously in a common-law relationship that ended nine years earlier and that he was the father of a daughter living in Colombia who was in the process of completing the paperwork so she could live with him in Ecuador and thereafter accompany him to Canada and confirmed that he was single.
In November 2007 Mr. A. completed the application for permanent residency in Canada and indicated that he had never been married but that he had previously been in a common-law relationship which ended in 1996. In the section provided to indicate information with respect to family members, whether accompanying him or not, he made reference to his daughter from his previous common-law relationship.
Mr. A. arrived in Toronto at Lester B. Pearson International Airport on Nov. 13, 2008, and was interviewed by an immigration officer. He indicated then that he was single (marital status No. 1) and that his daughter was an accompanying family member. In response to the question, have you any dependents other than those listed here? he responded “No”. Thereafter, he signed his name, certifying his statements as true and correct.
In January 2011, Mr. A. filed an application to sponsor Miss B and their son who was born in February 2008 in Ecuador. In July 2012, the immigration officer at the immigration section in Bogotá refused her request for a permanent resident visa.
At his appeal Mr. A contended that he disclosed his marriage to both NGO’s – OMI and HAJAS – and these organizations advised him to disclose his marriage only upon arrival in Canada. He stated that upon arrival in Canada in November 2008, he disclosed to Canada Border Services Agency both his marriage to the applicant as well as the birth of his son and concluded that the immigration officer disregarded his declaration.
However, the panel found he did not disclose his marriage and the birth of his son to immigration officials in his country before he left for Canada.
The panel also quoted a Federal Court decision where Mr. Justice Rothstein stated that “Paragraph 117(9) (d) does not bar family reunification. It simply provides that non-accompanying family members who have not been examined for a reason other than a decision by a visa officer will not be admitted as members of the family class.”
The tribunal ruled the applicant and her minor son are not members of the family class such that the Immigration Appeal Division (IAD) may not consider humanitarian and compassionate considerations and the decision of the immigration officer was valid in law and dismissed the appeal.
Sukhram Ramkissoon is a member of ICCRC and specializes in immigration matters at 3089 Bathurst St., Suite 219A, Toronto. Phone 416-789-5756.