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Hello - I'm a Canadian citizen who sponsored my husband ( Australian) about 10 years ago to become a permanent resident. He's now a Canadian citizen .

I don't know how we missed it, but although we declared that he had a dependent child (mother had full custody in the UK) we didn't realize that the 5 year old who was not living with him when he landed also needed to get a medical.

On his record of landing (at Etobicoke 2000) It was written "yes" by the question do you have any dependents other than those accompanying you. He was never asked to get a medical or provide passport info etc. for his son. Nor did he sign anything saying not to consider his son as part of his application.

Two years ago the child ( who's now 13 yrs) came to live with us in Canada and we started the process to sponsor him. Two weeks ago we received a letter from the Buffalo Visa office asking us to bring in his passport with 3 photos to get the permanent residence visa.

A few days later we received a letter from the same office from an immigration officier who said because my husband " did not declare the presence of other dependents, for the purpose of immigration", on his landing record, his child was now excluded from applying for immigration in the family class.

When I looked at the CIC web site I finally see that without a medical for the child when I sponsored my husband so long ago we may forever be banned from sponsoring his son. It doesn't say that in the letter but it says the "onus is on you ( my husband)" to satisfy the immigration officer that a visa can be issued to his son.

After being approved for sponsorship and getting the letter from Buffalo indicating the process is complete we don't understand why this other letter has arrived now. It took so long to get to this point that my step-son has already had to have 2 medicals ( he's in excellent health).

Is it really possible that my husband will never be able to sponsor his own son?! Can I sponsor my step-son ( now 15?). Can my husband renounce his citizenship and start the whole process over again. Should we just go to Buffalo with the letter indicating the process is complete and take our chances?

We aren't sure how to proceed. Any suggestions would be extremely welcome.

Hi

tartecerise Wrote:Hello - I'm a Canadian citizen who sponsored my husband ( Australian) about 10 years ago to become a permanent resident. He's now a Canadian citizen .

I don't know how we missed it, but although we declared that he had a dependent child (mother had full custody in the UK) we didn't realize that the 5 year old who was not living with him when he landed also needed to get a medical.

On his record of landing (at Etobicoke 2000) It was written "yes" by the question do you have any dependents other than those accompanying you. He was never asked to get a medical or provide passport info etc. for his son. Nor did he sign anything saying not to consider his son as part of his application.

Two years ago the child ( who's now 13 yrs) came to live with us in Canada and we started the process to sponsor him. Two weeks ago we received a letter from the Buffalo Visa office asking us to bring in his passport with 3 photos to get the permanent residence visa.

A few days later we received a letter from the same office from an immigration officier who said because my husband " did not declare the presence of other dependents, for the purpose of immigration", on his landing record, his child was now excluded from applying for immigration in the family class.

When I looked at the CIC web site I finally see that without a medical for the child when I sponsored my husband so long ago we may forever be banned from sponsoring his son. It doesn't say that in the letter but it says the "onus is on you ( my husband)" to satisfy the immigration officer that a visa can be issued to his son.

After being approved for sponsorship and getting the letter from Buffalo indicating the process is complete we don't understand why this other letter has arrived now. It took so long to get to this point that my step-son has already had to have 2 medicals ( he's in excellent health).

Is it really possible that my husband will never be able to sponsor his own son?! Can I sponsor my step-son ( now 15?). Can my husband renounce his citizenship and start the whole process over again. Should we just go to Buffalo with the letter indicating the process is complete and take our chances?

We aren't sure how to proceed. Any suggestions would be extremely welcome.

1. The son is no longer a member of the family class so cannot be sponsored. BUT his father should submit an application under Section 25 of the "Humanitarian and Compassionate Grounds" see; http://www.cic.gc.ca/english/information.../handc.asp for the application.
2. Your spouse is going to have to prove that he has sole custody of the child and the ability to have removed him from Australia. If not, he will have a real problem.

PMM

There's a lot of information about this in the OP2 Processing Manual, starting in Section 5.9 - here are some excerpts:

Quote:5.10. Non-accompanying family members
Applicants must declare all family members when applying for a visa and must again declare all family members, whether accompanying or not, prior to obtaining permanent resident status. Permanent residents who did not declare all their family members on their application are reportable under A44(1) [see also “Sponsor who may be subject to an A44(1) report” (section 10.5 below) and “Misrepresentation” (section 5.22 below)]. In addition, all family members, whether accompanying or not, must be examined, unless the appropriate officer determines that they are not required by the Act or the former Act to examine the family member [R117(10)]. Family members who were not declared and examined are excluded from the family class and may not be sponsored at a later date as per R117(9)(d) unless R117(10) applies. Non-accompanying family members must undergo medical examinations. They must also establish that they are not inadmissible for criminal or security reasons.

5.12. Exclusion from membership in the family class – R117(9)(d), R117(10) and R117(11) (former OM OP 03-19)
Under both the previous legislation and under IRPA, both the applicant and the applicant's family members, whether accompanying or not, must meet the requirements of the legislation. There are no exceptions to the requirement that all family members must be declared. With few exceptions, this also means that all family members must be examined as part of the process for achieving permanent residence.
. . .
The intent of R117(9)(d), R117(10) and R117(11) is to ensure that persons whom the sponsor made a conscious decision to exclude (either by not declaring and/or not having the persons examined) from their own application for permanent residence cannot later benefit by being sponsored by this same person as a member of the family class. Where, however, the applicant has declared the person and CIC chooses not to examine the family member, for example, because of an administrative decision or for policy reasons, or due to an administrative error, the family member is not excluded from membership in the family class. However, a sponsor cannot sponsor a family member if an officer determined at the time the sponsor previously submitted their application for permanent residence:
1. that the sponsor was informed that the family member could be examined and that the sponsor was able to make the family member available for examination, but did not do so, or
2. that the family member did not appear for examination when he was able to do so.

Many of the family class cases that are currently being processed have a sponsor who immigrated to Canada under the previous legislation. Under the previous legislation, certain persons either did not have to be examined as part of the application or could not be examined due to an administrative policy or decision taken by CIC. There are two groups of persons who fall into the above category:
• The family members of an applicant for refugee status . . .;
• Where an application for H&C consideration was made in Canada, . . . they were not examined.

In addition, under the previous legislation, there were situations where an application could proceed even though the applicant made a decision not to have a family member examined, namely:
• where a dependent child was in the custody of the sponsor’s spouse or ex-spouse;

Consequences of no examination:
Where CIC made the decision not to require examination of family members as per R117(10), the exclusion of R117(9)(d) does not apply to an applicant where it is established that an officer determined, during the course of the sponsor’s own application for permanent residence, that this applicant (then a family member of the foreign national who later became a sponsor) was not required to be examined, as applicable, under IRPA or the former Act. The key notion operating here is whether it was the decision of the officer who, being fully advised of the existence of the family member through the truthful declaration of the foreign national who later became a sponsor, determined that it was not required that that family member be examined and did not require that the family member be examined. If the decision for nonexamination was made by the officer, then R117(9)(d) does not apply in respect of that family member and that family member is not excluded. Nevertheless, as per R117(11), R117(9)(d) does apply to an applicant if an officer determines that this applicant could have been examined during the sponsor’s own application for permanent residence, but that the sponsor chose not to make the applicant available for examination or that the applicant did not appear for examination. The choice in this situation rests with either the sponsor or the applicant (not with an officer of the Department) and, consequently, the applicant is excluded, pursuant to R117(9)(d) and R117(11), for not having the family members examined as part of the sponsor’s own application for permanent residence.

Dependent child in the custody of a former spouse
In some cases where a child was in the custody of the other parent, the applicant may have been advised, pursuant to R6(5) of the Immigration Regulations, 1978 and per R23 of the current Regulations, that the child did not have to be examined because of the custody situation. In this situation, the decision whether or not to have a child examined is definitely the applicant's decision. The applicant should have been fully counselled by the officer on the consequences of not having the child examined, i.e., exclusion from later sponsorship in the family class by the applicant. The CAIPS notes should reflect that this counselling took place. In situations where it is evident that the applicant was fully counselled, the dependent child is excluded from membership in the family class by virtue of their relationship to the sponsor and cannot be sponsored by this person at a later date. This was true under R4(2) of the previous legislation and is still valid under R117(9)(d) of the current legislation. In cases where, upon review, it is not clear that the applicant in fact made the choice not to have the child examined and/or it is not clear that the applicant understood the consequences of the choice, a review board, i.e., the IAD may conclude that the officer was in breach and that the applicant was not correctly advised. Natural justice and fairness require that the consequences of a decision of this magnitude be fully explained and understood, whether at interview or through correspondence.

Excluded family members and humanitarian and compassionate grounds
A25 requires officers and delegated authorities to examine humanitarian and compassionate factors (H&C) upon the applicant’s request. In addition, if an officer believes there are strong humanitarian and compassionate factors present in a case, the officer may on their own initiative, without the applicant specifically requesting it, put the case forward to the person with the delegated authority to approve the use of A25(1) for the case. A separate application and fee are not required. A25 can be used by applicants to overcome being an excluded family member or any other requirement of the Act. This includes an applicant who has a sponsor who does not meet eligibility requirements. The text that follows addresses the use of A25 in relation to R117(9)(d). This regulation excludes from the family class, persons who were not examined as non-accompanying family members at the time their sponsor made their application for permanent residence. In considering the use of H&C for excluded family members, the officer should take into account all relevant factors including, but not limited to, those provided below.
General
• The onus is on the client to understand their obligations under the law. The information guides included with application kits and visa issuance letters give clear information on the need to declare and have examined all family members including new family members.
• The exclusion found in R117(9)(d) exists to encourage honesty and prevent applicants from circumventing immigration rules. Specifically, it exists to prevent applicants from later being able to sponsor otherwise inadmissible family members under the generous family class sponsorship rules when these family members would have prevented the applicant’s initial immigration to Canada for admissibility reasons (i.e., excessive demand).
• The application of humanitarian and compassionate considerations may nonetheless be appropriate in cases that are exceptional and deserving from a reasonable person’s point of view.
Case-specific factors
• Canada’s continuing obligations under the Convention on the Rights of the Child require that the Department consider the best interests of a child directly affected by the application whether they are explicitly mentioned by the applicant or are otherwise apparent. (For more information on the application of the policy pertaining to the best interests of the child, see OP4, section 8.3.)
• Where family members were declared but not examined and it is clear that the applicant/sponsor made their best efforts to facilitate this examination and that this lack of examination was beyond the applicant’s/sponsor’s control, considering the use of H&C factors may be appropriate.

It's apparent that Buffalo is not going to research this themselves - they have put the burden of proof on your husband to prove that his son was exempt from the requirement of being examined as part of his own application for permanent residence. If the legislation did not require it, for any of the reasons mentioned above, he's going to have to demonstrate that fact sufficiently. But it looks like that was probably not the case as your husband landed in 2000. So, since the legislation probably DID require examination, he's going to have to demonstrate that the child was not examined due to an officer decision or an error in processing. If he could not have the child examined because he was in the custody of the other parent, then Sydney was obligated to counsel him that this would result in the son being ineligible to be sponsored in the future, and they should have had him sign some sort of declaration of understanding to that effect. IF they did not do that, he needs to be able to prove that beyond the shadow of a doubt. Believe me, CIC does make mistakes in processing, but it's pretty difficult to pin them down on it without benefit of an appeal. So - it's very possible that, in the end, they will refuse the application - and then his only option will be to appeal the decision. That's where the Humanitarian and Compassionate considerations come into play, as well as the "best interests of a child". It's a long and costly process - so it's important to do whatever you can to try to get this resolved now. Having experienced what I did with Buffalo, I suspect this won't be easy - so I'd suggest you guys immediately consult with a qualified immigration attorney to see if you can get some direction in hopes of avoiding a refusal and appeal. (Keep in mind that immigration attorneys make a lot of $$$ representing appeals cases, so if you talk to an attorney who counsels you to just wait and see what happens, he's doing nothing more than bucking for a shot at representing you in an appeal. Find someone who is willing to work with you to pull together the best case of credible evidence - with the goal of avoiding an appeal, if at all possible.)

To answer your other questions: no, your husband cannot renounce his citizenship now and start all over again - it wouldn't change anything. And no, you absolutely should NOT go to Buffalo with the original letter, as though the process is complete, and try your chances. Buffalo's not that stupid and you'd very likely risk his son not be allowed to re-enter Canada. The letter you received put the onus on your husband to show that the officer who processed his original application did not require him to have his son examined - I'd start with ordering his FOSS notes (inland process) for information into the processing of the case. If the son was, at that time, in Australia, Sydney should have been processing the son's part of the application - even as a non-accompanying dependent - and it would have been up to them to ask for the medical if it wasn't submitted. It's possible they sent notification to the son's mother, and she simply ignored it. So I'd also have your husband order his son's CAIPS notes from Sydney - if he can show an error in processing, Buffalo should allow the sponsorship. That's not saying they will, though - if they're not comfortable with the "proof", they'll turn the decision over to the IAD just to be done with it.

Hello Robsluv- I am so grateful for all the very useful information you gave us, the links, and for so generously taking the time to provide so much detail regarding the minutae of our case.

I have a 30 mins consultation scheduled with an experienced immigration lawyer later today and your input will also help me make the most of that time.

I think, like many immigration cases, ours is complicated because of the mix of nationalities and circumstances. I'm Canadian, husband Australian and now Canadian, his son British and Australian ( his mother is a British National and he lived in England between 4 and 12 yrs of age). I met my husband when we were both ( legally) living and working in Costa Rica.

I sponsored my husband when we were living in Canada but at the same time he requested and received an exemption from immigrant visa requirement. I think the fact that he was allowed to apply from inside Canada meant ( maybe?) that this application was never sent to an external visa office (e.g. Sydney, Australia). Maybe that is why no one ever talked to him or me about the danger of not having the child take a medical examination before my husband applied for landing.

I agree that if at all possible we don't want to get a written "no" at this point.

I still don't understand why they sent a letter saying my step-son's application for permanent residence was complete and we should go to Buffalo, then, a week or so later we get the letter questioning his suitability for receiving such a visa. Strange- but more and more I think the entire immigration system is very uneven, unfair and difficult to understand so the earlier letter was really just an example of how mixed up things can get.

I worry deeply about how others manage who don't have English or French as a first language and who are without resources to at least try and pursue a positive outcome.

Thanks again so much.
Mary

All the best - hoping you'll update us after you receive your consultation. What I'm not sure about is this: it was my understanding that when someone files an inland application and they have dependent children overseas, the dependents are processed through the overseas visa office, even if they're non-accompanying. I'm not positive about that in the case of non-accompanying dependents . . . but I do know, for sure, that frequently then overseas embassies have contacted the custodial parent (rather than the applicant) in an effort to get compliance with the necessary examinations. I've always had an argument with that - because it's pretty fair to assume that (in spousal/common-law sponsorships at least) a former partner is not going to be terribly anxious to receive word that they're required expend time, expense and inconvenience to transport their child to a DMP for a medical examination to help facilitate the immigration of a former partner to Canada. In addition, many fear this will mean the child could be "spirited away to Canada" by the other parent because, of course, CIC doesn't take time to explain that a visa will NOT be issued to a child who's in the custody of the non-immigrating parent - under any circumstances.

Anyway - I'd suspect that it's possible that the embassy in Sydney sent the child's mother a letter trying to compel her to get him examined . . . but if they never notified your husband of it, then they don't have much of a case to exclude the child from the family class. The problem is that they don't always play fair - so be prepared for a refusal and an appeal. I sincerely hope it doesn't come to that, but I found Buffalo to be notoriously non-communicative and uncooperative when it comes to complicated "issues" where they're uncomfortable interpreting the Act & Regs. Just out of curiousity - what's the name of the Immigration Officer who sent the letter(s)?

The consultation with the immigration lawyer was over the phone with someone in Montreal who suggested a couple of names of lawyers in Toronto. He said the case was complicated and we needed someone with a lot of experience ( and success) to help us with the next move. Agreed that the intent of the Act was similiar prior to 2002 but that 117 (9) d was brought in during 2002 because the provisions it addresses were not as clear before 2002.

He pointed out, as did you, that we have one shot to not be thrown into the appeal system and while we could send a response ourselves - I went over a few points with him- he thinks it would best to work with a lawyer to avoid an appeal. We have to agree really.

After a long two year court battle for custody of a then 13 yr old, now 15 yr old ( we won) we were hoping that legal costs were behind us. Still probably better to spend money now in an effort to avoid spending even more money later. Have an appointment for a face-to-face with a immigration lawyer that both the Montreal-based one and our family lawyer said has a good reputation.

The immigration officer who signed the letter voicing "concern" and saying the "onus" was on us to address that concern signed as C. Athoe. I looked up staff on the Buffalo website so it looks like it's probably Cheryl Athoe. Hope that doesn't ring any bells for you because it seems like you've had a difficult time.

Sigh

I'll PM you.

You will need to go above and beyond with her on your case.