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frequently asked questions

Can my family and I appeal from being removed from Canada?

Q. I came to Canada in 2001 and applied for refugee status. My case was refused. In March 2006 I made a Humanitarian and Compassionate Application. I did not receive yet a decision regarding my H&C application, but meanwhile, Immigration wants to remove me and my family from Canada. I do not know where to turn to or what should I do at this stage?

A. I receive many questions regarding this matter, and we handle hundreds of cases like this every year. When you applied for protected person / refugee status in 2001 you received a conditional departure order. At the time that your application for refugee status was refused, your departure order automatically became a deportation order without any further notice to you. Many people do not realize this happens – but you have a deportation order against you! At this stage, the Canada Border Services Agency (CBSA) could seek a decision from Immigration Canada on your H&C application, before removing you from the country but do not do so often. Before deporting you, CBSA must first serve you with a Pre-Removal Risk Assessment (PRRA) form for which you have 15 days to file the form and 30 days to file submissions as to why your country of origin is a risk to your life for you and your family. If the PRRA is negative, CBSA will complete removal. At the time of the negative decision on PRRA, you have the option to challenge the decision in the Federal Court of Canada. If you are refused in the Federal Court, you will receive a date for removal. You may also receive a date for removal while you are fighting the decision in Federal Court so you can also make a written request (application) to stop your removal until your H&C application is decided (in case it has not), or other reasons, like children’s school year being interrupted, etc. If refused by CBSA again, you will also have to challenge the decision in Federal Court. The procedures are rather complicated and stopping removal is very difficult so you will need professional help. Good luck!

Of note is the fact that under the new regulations regarding protected persons/ refugee status, after a refusal of your application, you cannot make a Humanitarian and Compassionate application or/and do not qualify for a PRRA application for 12 months after the decision, unless certain conditions apply. The idea is that CIC wants to remove the refused refugee applicants, as soon as possible after the decision is issued.

What happens if I am refused or do not qualify as a sponsor?

If you do not qualify for sponsorship, you have the option to withdraw your application, by writing immediately to CPC Mississauga, before they transfer the file for overseas processing. You may then obtain a refund of the processing fees that you submitted with your application. In this case you do not have the right to appeal the refusal to the Immigration and Refugee Board, Appeal Division (IRB-IAD) but to the Federal Court of Canada. If you succeed in solving the problem regarding your ineligibility, you may then apply again.

How much should I wait for further communication?

Q: I sponsored my parents and dependent sister (mental retarded – unmarried – age 45) in December 2005 for permanent residence. My application was rejected in 2009 due to the dependent mental retarded sister. I have filed the appeal on humanitarian grounds and at the Alternative Dispute Resolution (ADR) conference, the appeal was allowed for my dependent sister. In short, we won the case. Again documentation (medical/further medical) have been submitted and medical has been completed on 3rd April 2012. Passport has been sent on 5th August 2012 to New Delhi, India. I have not received / heard anything after that. There is no communication from immigration department. What should I do now? How long should I wait for further communication?  Do they have the power to reject an ADR decision? Can they reject my application again if appeal is already allowed?

A: There are no set timelines once an application is sent back to be reconsidered.  There have been some challenges with respect to overseas offices following agreements made during Alternative Dispute Resolution (ADR) conferences, but for the most part this is a problem of the past.  After a successful appeal either at ADR or at an IAD full hearing, the issue in dispute (in this case medical) that was resolved cannot be reexamined by an officer and used as groundS to refuse.  If a new medical condition is discovered or another ground of inadmissibility arises i.e. there was a medical issue that was overcome at appeal but when it was sent back to the visa office, another medical condition was discovered or a criminal conviction exists, then the application could be refused again.  I believe you should hear something in the next few months. Good luck!

Can they refuse my application even if I meet the requirements?

Q: I understand that the new changes mean the government could still refuse my immigration application even if I meet the requirements. This must offend some law, doesn’t it?

A: The proposed amendments would allow the Government considerable discretion in deciding skilled worker applications, and overseas humanitarian and compassionate grounds applications. This ministerial authority is what many groups, including the Canadian Bar Association, are concerned with, should these changes become law.

Can the government decide how many immigrants and what types of immigrants we need? Sure they can, but it must be applied in a fair and consistent manner and respect the Canadian Charter of Rights and Freedoms. If not, the Courts will be called upon to assist. But what is worrisome is if our system, one of the best in the world in my opinion, loses a degree of its predictability and certainty in favour of discretion – the system suffers and so does Canadians and potential applicants. If the backlog and resources are key problems, we may need to look at various creative solutions including doing more immigration processing of applications from within Canada by Canadians. It may save on the costs of overseas offices and cut down on the struggle of finding Canadian visa officers overseas. But one thought of many, we will hear over the next several months.

Could my sponsorship application be refused?

Q. I landed in Canada in March 2008, worked for 2.5 months, rented an apartment, opened a bank account, and left to my home country to get married. I got married in July 2008 and I lived in Egypt ever since. I signed a contract with a Canadian company in March 2009 as an independent contractor, and I am currently working on projects outside Canada.

I wanted to sponsor my wife and I applied for my wife and in the application I mentioned I live in Canada (since I work for a Canadian company). Immigration sent the application back requesting more documents (Option C printout, gas bills, phone bills, bank statements, rental lease, etc.). I did my taxes for 2008, I have a Canadian cell phone, bank account, credit card. Is there a problem to sponsor my wife?

A. Yes, there could be a problem with sponsorship. First, the fact that you filed taxes, have a Canadian cell phone, bank account and a credit card in Canada does not mean that you reside in Canada. From Immigration Canada’s point of view, you may be misrepresenting yourself and your application will likely be refused. The legislation has provisions for sponsoring spouses outside Canada but refers only to Canadian citizens living abroad who will return to Canada after the application is approved. You are not a Canadian citizen, but a permanent resident. So in your case, you will not be able to sponsor your wife until you reestablish yourself in Canada and recommence the application while you physically live here. Good luck!

Once I am approved as a sponsor, can my parents still be refused?

Yes, your parents can still be refused on different grounds, including:

  • one or both of your parents are inadmissible on health grounds – meaning their health will impose a high price on the Canadian health care system;
  • one or both of your parents have a criminal record that makes them inadmissible;
  • the relationship between you and the sponsored persons is not genuine;
  • you did not provide all the required documentation in time;
  • you do not meet the financial requirements when they are ready to be approved.

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