Immigration Matters    Sukhram Ramkissoon

Undeclared child can now be sponsored                      

A reader recently spoke to me about the Immigration Minister’s announcement on May 31 last  with respect to a child who was “undeclared” at the time he was landed.  He said he sponsored the child in 2017 and the application was refused.He then appealed to the Immigration  Appeal Division (IAD) and the matter was also dismissed earlier this year.

He also stated that he was advised that due to the recent change in policy, the fastest route to get his child to Canada is to have his appeal re-opened and file a new application under the present guidelines and pilot project.

He asked that I should publish my suggestions about this matter in my column.

Dear Reader,

It is true that a pilot project  announced by the previous Minister of Immigration, Refugees and Citizenship in May 2019 became effective as of September 9, 2019.   It stated that a person such as  a resettled refugee, a person conferred refugee protection in Canada, or a person who was sponsored as a spouse, partner or dependent child themselves, will be able to sponsor undeclared immediate family members  (a spouse, partner or dependent child). 

In my opinion that it will be unwise for you to re-open the appeal, based on this new pilot project and the best option for you is to proceed with a new sponsorship application based on the new pilot project.

A recent IAD decision  dealt with the reopening an appeal for a person who was in similar circumstances as yourself. 

So, let’s look at this case.  Mr. X applied in writing to the IAD by letter in June 2019 stating that his appeal should be reopened because of the new public policy  which came into effect  last September and on the basis of additional information related to his circumstances.

 The IAD forwarded copies of the application to the Minister’s Counsel requesting submissions and by letter last August, the Minister’s Counsel submitted that the application to reopen should not be allowed because Mr. X has (1) not demonstrated there was a breach of natural justice and (2) is unaware of any current change in legislation or policy that would form a basis in allowing the appeal to be reopened.

The Act is silent as to whether a sponsorship appeal can be reopened. The IAD’s jurisdiction in this area has been settled by the Federal Court decision as it has jurisdiction to reopen a sponsorship appeal due to a breach of natural justice.

The onus of proof for these types of cases is on the Appellant. The IAD must apply the law to the circumstances of the appeal. The appeal was dismissed in February 2019, as the child was not examined and was excluded as a family class member.   The IAD found there was no evidence of any breach of natural justice in that decision.

In  that decision the member also stated that Immigration, Refugees and Citizenship Canada (IRCC) introduced a temporary public policy related to certain foreign nationals excluded under immigration law.  The public policy was announced in a document dated July 5, 2019 titled “Public Policy to facilitate the immigration of certain sponsored foreign nationals excluded” posted on the IRCC website.

The document dated July 5, 2019 was further explained in a document posted on the IRCC website dated August 6, 2019 titled: “Pilot program to exempt permanent residence applicants in the family class or the spouse or common-law partner in Canada exclusion.” The public policy is effective from September 9, 2019. However,  it sets out out a number of eligibility requirements. In particular, the public policy only applies to applications either: still in process on May 31, 2019 (no final decision made before that date); received between May 31, 2019 and September 9, 2021; and pending reconsideration between May 31, 2019 and September 9, 2021.

While not binding on the IAD, the panel notes that it is the position of IRCC as set out in the document dated August 6, 2019 that the public policy does not apply to applications that were refused before May 31, 2019, and that are being appealed at the IAD.

The member further ruled, that this decision does not bar the Appellant from making a new application to sponsor her child.  The re opening application was dismissed.

So, you see, reader, it is best to proceed with a new sponsorship application.

Good luck.

MERRY CHRISTMAS AND A SAFE AND HAPPY NEW YEAR TO ALL MY FAMILY, FRIENDS AND READERS.

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