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~*Dani*~ View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote ~*Dani*~ Quote  Post ReplyReply Direct Link To This Post Posted: 11 Nov 2012 at 1:50pm
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Edited by ~*Dani*~ - 27 Feb 2013 at 10:26am
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computergeek View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote computergeek Quote  Post ReplyReply Direct Link To This Post Posted: 11 Nov 2012 at 2:39pm
Immigration is intensely stressful, especially when dealing with a rejection.  The key is to try and focus on other things in your life.  I realize this is a bit like trying to ignore an elephant in the room, but it's the only way to remain sane while the process is ongoing.

Visa Officer's do make mistakes, and according to the statistics that CIC just released, they reject 17% of outland applications - that's about 1 out of every 6.

While I'm sure it won't assuage your own pain right now, I've read cases that have gone the other way - where the sponsored person gets to Canada and then just gives up on the sponsor.  Such cases are sad and they do happen, unfortunately.  Thus, there is a complex balance to be struck here and sometimes there will be mistakes either way.

It will take time, but you can convince the IAD tribunal that your relationship is genuine.

FSW applied 6/09, denied (med inadmissible) 12/11. JR leave granted 7/12, discontinued 9/12. Spousal app PPR 9/12. Landed 13 October 2012
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Post Options Post Options   Thanks (0) Thanks(0)   Quote ~*Dani*~ Quote  Post ReplyReply Direct Link To This Post Posted: 12 Nov 2012 at 10:43am
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Edited by ~*Dani*~ - 27 Feb 2013 at 10:26am
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computergeek View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote computergeek Quote  Post ReplyReply Direct Link To This Post Posted: 12 Nov 2012 at 3:08pm
You may request that your spouse be allowed to attend the IAD hearing in person.  They don't have to allow it, but will do so if you can convince them that it is important to your case.  But in your instance it sounds like the VO made a legal error - it doesn't have to do with the genuineness of your relationship, it has to do with your eligibility to sponsor.

You are right.  As a Canadian citizen, you do not have to be in Canada to sponsor your spouse.  If the reason for rejection cited this as grounds for refusal it is invalid in law.  I suspect the waiting times for IAD hearings are shorter in SK than they are in ON - people talk about waiting 2+ years for an IAD hearing in Toronto.  The good thing here is that the tribunal (IAD person hearing your case) can actually evaluate the legitimacy of your relationship as well and issue a decision on all the issues in your case - e.g., that you are eligible to sponsor and your relationship is genuine.

With such a decision, the case will be assigned to a new VO.  Last year they started sending successful appeals to CPP-O, so your case may go there instead of back to the visa office that rejected your application in the first place.  With a positive decision on your eligibility and on genuineness of the relationship I'd be rather surprised if your application were not successful when it gets sent back for further processing.

FSW applied 6/09, denied (med inadmissible) 12/11. JR leave granted 7/12, discontinued 9/12. Spousal app PPR 9/12. Landed 13 October 2012
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Post Options Post Options   Thanks (0) Thanks(0)   Quote pmm Quote  Post ReplyReply Direct Link To This Post Posted: 12 Nov 2012 at 4:49pm
Hi


Originally posted by computergeek computergeek wrote:

You may request that your spouse be allowed to attend the IAD hearing in person.  They don't have to allow it, but will do so if you can convince them that it is important to your case.  But in your instance it sounds like the VO made a legal error - it doesn't have to do with the genuineness of your relationship, it has to do with your eligibility to sponsor.You are right.  As a Canadian citizen, you do not have to be in Canada to sponsor your spouse.  If the reason for rejection cited this as grounds for refusal it is invalid in law.  I suspect the waiting times for IAD hearings are shorter in SK than they are in ON - people talk about waiting 2+ years for an IAD hearing in Toronto.  The good thing here is that the tribunal (IAD person hearing your case) can actually evaluate the legitimacy of your relationship as well and issue a decision on all the issues in your case - e.g., that you are eligible to sponsor and your relationship is genuine.With such a decision, the case will be assigned to a new VO.  Last year they started sending successful appeals to CPP-O, so your case may go there instead of back to the visa office that rejected your application in the first place.  With a positive decision on your eligibility and on genuineness of the relationship I'd be rather surprised if your application were not successful when it gets sent back for further processing.



1. Although a Canadian citizen can sponsor a spouse while residing overseas, if the sponsor can't demonstrate that they will be returning to Canada once a COPR the application can be refused under 130(2).
2, I suggest that you search CanLII with the search 130(2) and dismissed.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote MajidS Quote  Post ReplyReply Direct Link To This Post Posted: 13 Nov 2012 at 9:30am
Originally posted by computergeek computergeek wrote:

... As a Canadian citizen, you do not have to be in Canada to sponsor your spouse.  If the reason for rejection cited this as grounds for refusal it is invalid in law....
 
I have to disagree a bit on that. From what I know, the visa officer has the legal right to reject any Canadian citizen's application if they doubt about the couple's genuine intention of living in Canada. I can speak from experience of a Canadian citizen buddy of mine (been a citizen for over 20 years) who was fully living his life in Canada. They refused his application to sponsor his wife because the officer was not convinced they were going to live in Canada. All this because my buddy took a few months off every year to spend time with his wife overseas and the fact that he was a contractor and kept jumping jobs every year. All the officer has to do is say he is not convinced the couple are going to be "Canadian after the application is approved" by living forever in Canada.
 
 
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Post Options Post Options   Thanks (0) Thanks(0)   Quote ~*Dani*~ Quote  Post ReplyReply Direct Link To This Post Posted: 13 Nov 2012 at 10:49am
..............

Edited by ~*Dani*~ - 27 Feb 2013 at 10:27am
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Post Options Post Options   Thanks (0) Thanks(0)   Quote ~*Dani*~ Quote  Post ReplyReply Direct Link To This Post Posted: 13 Nov 2012 at 10:53am
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Edited by ~*Dani*~ - 27 Feb 2013 at 10:28am
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Post Options Post Options   Thanks (0) Thanks(0)   Quote computergeek Quote  Post ReplyReply Direct Link To This Post Posted: 13 Nov 2012 at 4:38pm
I don't have the VO's decision in front of me, so I have based my observation on two things: (1) the OP's claim that the VO indicated she had to be in Canada to sponsor (not true for Citizens); and (2) that her attorney has told her the decision was wrong in law.  These are consistent with her being told she was ineligible to sponsor because she was not in Canada.  I agree that the VO has the right to decide her plan to return was (on a balance of probabilities) not credible, but I'd be shocked that an attorney would describe that decision as "wrong in law'.

Dani, the point here is that the specific language of the denial is what is important here.  If the VO indicated she or he did not find your plan to return to Canada credible, that's allowed by law.  If the VO stated you were ineligible to sponsor because you were not in Canada, that decision would be wrong in law.

It's speculative on all of our parts to comment with respect to a rejection that we've not reviewed directly.  You should rely upon your attorney to represent you well in this case.





Edited by computergeek - 13 Nov 2012 at 4:38pm
FSW applied 6/09, denied (med inadmissible) 12/11. JR leave granted 7/12, discontinued 9/12. Spousal app PPR 9/12. Landed 13 October 2012
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Post Options Post Options   Thanks (0) Thanks(0)   Quote computergeek Quote  Post ReplyReply Direct Link To This Post Posted: 13 Nov 2012 at 4:43pm
Originally posted by MajidS MajidS wrote:

Originally posted by computergeek computergeek wrote:

... As a Canadian citizen, you do not have to be in Canada to sponsor your spouse.  If the reason for rejection cited this as grounds for refusal it is invalid in law....
 
I have to disagree a bit on that. From what I know, the visa officer has the legal right to reject any Canadian citizen's application if they doubt about the couple's genuine intention of living in Canada. I can speak from experience of a Canadian citizen buddy of mine (been a citizen for over 20 years) who was fully living his life in Canada. They refused his application to sponsor his wife because the officer was not convinced they were going to live in Canada. All this because my buddy took a few months off every year to spend time with his wife overseas and the fact that he was a contractor and kept jumping jobs every year. All the officer has to do is say he is not convinced the couple are going to be "Canadian after the application is approved" by living forever in Canada.


That really would be a different rejection than what I was attempting to describe. Let me clarify:

"If the VO indicated the reason for rejection was that you were ineligible to sponsor your spouse because you were not in Canada at the time the application was filed or the decision made, it would be incorrect in law."

The rejection you describe would be "I am not convinced it is your intention to return to Canada if your spouse is granted a permanent resident visa."  I would not describe that as "wrong in law".

Of course, regardless of the reason for the decision, the IAD tribunal is de novo and may re-examine all of the evidence for the OP's case.  I certainly hope they come to a reasonable conclusion given the facts of the case.



Edited by computergeek - 13 Nov 2012 at 4:44pm
FSW applied 6/09, denied (med inadmissible) 12/11. JR leave granted 7/12, discontinued 9/12. Spousal app PPR 9/12. Landed 13 October 2012
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