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Parent's PR - Humanitarian and Compassionate

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pla1 View Drop Down
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    Posted: 08 Dec 2009 at 2:20pm
My mother came to Canada with tourist visa in 2006 Nov just before my daughter was born.
 
In 2008 April, we applied at CIC-Missuasaga for sponsoring my mother for PR. This application will not even be opened up until after mid 2011 according to current processing waiting period of 32 months.
 
We have been extending her Temporary Resident Visitor Visa for 5 times... and now she has been here for exactly 3 years, and the last application for extension was refused. Which means now she has to immediately leave Canada.
 
My question is: Can we apply for PR on the "Humanitarian and Compassionate Considerations" basis, since she has no one back in her native country Burma?
 
She is a widow. Goind back means tremendous hardships to be dealt in that country, she's 72 but with very good health. During her three years stay in Canada never had to see a doctor. She herself used to be doctor back in her country. But she dosn't have earned anything much.. therefore, no savings at all. She raised me through her professional practice in Burma, supported me for everything and now I am here in Canada working full time, paying taxes and what not. It's only natural that now I want to support my mom and take care of her for her rest of the life.
 
Besides, if she goes back.. there's virtually no way for her to survive on her own... no social security, no pension (she practiced privately running clinic in her own small house), her passport will expire, and most probably she will not be able to get another passport given the nature of military government ruling Burma ruthlessly.
 
So, should we apply for PR based on "Humanitarian and Compassionate Consideration" ?
 
If applied, can she remain in Canada without having to leave during the processing period?
 
I heard that after the processing of this application begins, she is even eligible for health care. Is it true?
 
The website says that Vagreville process this type of application in 4 months, but once the processing begins, is it true that it may take 3-4 years?
 
Thanks a lot, if you could provide some answers to my above questions. Time is critical since we already received the rejection letter for temporary resident visa extension.
 
 
 
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pla1 View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote pla1 Quote  Post ReplyReply Direct Link To This Post Posted: 09 Dec 2009 at 11:52am

Some new info I found.. it would be a good read of IP5 policy Manual before applying for H&C PR application.

 

CIC Update on IP5: Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds


Monday, November 30, 2009

CIC has recently published the new IP5: Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds. It is a complete revision and replaces the previous version. Any previous version of IP 5 should be discarded.

The Canadian Council for Refugees has identified a number of positive changes, including:

  • Best Interests of the Child: somewhat enlarged section. Officers must carefully identify and examine all factors related to the child’s life, are encouraged to do interview as "for some applicants it can be difficult to express themselves in writing", must give factors affecting children "substantial weight", and must take into account country conditions and their potential impact on the child.

  • Assessment of Hardship: The officer must now examine the actual hardship that the applicant would face if refused (as opposed to the hardship of supposedly having to leave Canada only temporarily to apply for a permanent resident visa). Thus, the fiction of a temporary departure from Canada, in case of refusal of the H&C, has been removed.

  • Prolonged stay in Canada has led to establishment: this section is marginally improved and now states that it could apply even after a moratorium on removals has been lifted.

Download IP5: Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds in PDF format.

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ralph dzegniuk View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote ralph dzegniuk Quote  Post ReplyReply Direct Link To This Post Posted: 09 Dec 2009 at 8:26pm
Yes, you can file an H&C application in situation such as yours.
I have dealt with a number of H&C's based on nearly indentical fact scenario (elderly parent unable or unwilling to return to home country due to lack of support over there and strong family ties in Canada) and they have been, by and large, successful... Even though they take a very long time to be finalized - 3 yrs. on the average, as you are probably already aware.
 
The only wrinkle in all this is that, in the interim, of course, your mother won't have any status in Canada. So, if she stays, she'll be here without status and will, sooner or later (and probably sooner rather than later) become subject of a section 44 report which could, in the long term, lead to a removal order. So, in reality, you will probably have to deal on two fronts - CIC with H&C and CBSA with deferral of removal pending the determination of the H&C application. I'd strongly urge you to seek professional (legal) advice on both fronts.
 
Don't hestitate to contact me should you have any questions or concerns,
 
regards,
 
Ralph Dzegniuk, Barrister & Solicitor (B.A., L.L.B.)
Migration Law Chambers
82 Richmond Street East, Suite 305
Toronto, ON. M5C 1P1
Phone: (416) 548 9072
Fax: (416) 548 9092
www.migrate-2-canada.com
[email protected]2-canada.com
[email protected]
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canadaturk View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote canadaturk Quote  Post ReplyReply Direct Link To This Post Posted: 09 Dec 2009 at 8:47pm
Here is our scenerio:
My partner (we are a same-sex couple) was approved for refugee status in 2005. We are applying for citizenship now.
Her mother is elderly (73) and has some health issues but nothing that cannot be controlled without proper care. She came to visit in 2007 and filed for refugee status but later withdrew the claim because her youngest son (age 37 and has hearing disability) was still in the country of origin and was constantly worrying about his well being. Despite us advising against going back she withdrew the claim.
We are thinking of filing an H&C application for both of them. We were told that we could sponsor the mother but not the son because he is over age 22. However he takes care of his mother and provides for all of her needs and she provides the financial support. Now my partner has visited a few times but it is very hard for her as she constantly has to conceal her sexual orientation on each visit and is very fearful each time. This places a severe hardship on her because she does worry about both of them but at the same time is taking a risk to just see them.
We cannot file a sponsorship at this time due to a bankruptcy and even if we did we could not include both of them.
Can an H&C even be filed if they aren't even here in Canada? We know they have a very low approval rate but this is the only application that seems to fit this situation. Any advice?
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ralph dzegniuk View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote ralph dzegniuk Quote  Post ReplyReply Direct Link To This Post Posted: 10 Dec 2009 at 10:12am
This is a rather complicated scenario.
So, to clarify, your partner's mother is here (in Canada) but her hearing impaired son is still back home, yes? If so, you have 2 options:
 
1) If her mother is really unable/unwilling to leave Canada, file for her an H&C as described above, but be prepared that in the meantime you will also have to deal with CBSA in order to have her removal order (which will be issued sooner rather than later given that she's here without status) deferred pending the decision on the H&C. CBSA likes to play "hardball" so it might be difficult to achieve it but with proper documentation it is not impossible. Given your bankrupt status and the fact that you are ineligible as sponsors at this point, De-Facto Family Member arguments will have to be included in the legal submissions as per the Manual.
 
At the same time, separately, you'd have to file an overseas Sponsorship with H&C request for the hearing impaired brother who's still back home. The Sponsorship is being filed only symbolically since he doesn't meet the definition of Family Class (given his age), you don't qualify as sponsors (for financial reasons) and, in addition, there might be medical inadmissibility issues due to "excessive demand" given his hearing impaired status (this is not necessarily the case but I have had cases before where hearing impaired people were rendered inadmissible due to excessive demand - this is really fact specific). So, in the legal submissions you would have to deal with all of these issues: De-Facto family member; excessive demand, Unusual, Undeserved and Disproportionate Hardship, etc.  It won't be easy, but it's not impossible. Again, follow the Manual very closely. Keep in mind that there are no specific H&C forms for overseas processing so you will be relying on the Sponsorship application kit.
 
2) File an overseas Sponsorship with H&C, as described above, for both of them. That way you don't have to file 2 separate applications . However, if an interview is scheduled back home in connection with this application, at that point your partner's mother would have to go back home to attend it. Be prepared for this eventuality.
 
Again, this is going to be a difficult and long process, however, if strong legal submissions and all encompassing documentation is filed in support of it, it is not impossible. On these applications VO's are afforded great amount of discretion so make sure you take that into account when preparing the legal submissions and supporting docs. Again, in as complicated of a situation as this one I'd advise you to have legal representation.
 
Feel free to contact me directly if you wish to scheduule a  phone or personal consultation,
 
regards,
 
Ralph Dzegniuk, Barrister & Solicitor (B.A., L.L.B.)
Migration Law Chambers
82 Richmond Street East, Suite 305
Toronto, ON. M5C 1P1
Phone: (416) 548 9072
Fax: (416) 548 9092
www.migrate-2-canada.com
[email protected]2-canada.com
[email protected]
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canadaturk View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote canadaturk Quote  Post ReplyReply Direct Link To This Post Posted: 10 Dec 2009 at 8:44pm

Yes it is rather complicated but to clarify no my partner's mother is presently not in Canada as she withdrew her refugee claim and did return willingly to the home country. There were never any removal orders issued. Now it doesnt make sense to file a sponsorship (hence additional fees) if we know that we dont qualify as sponsors at this point. I really wish we could retain a lawyer but at this point we really cant. It is very unfortunate but we may have to go it alone.

Is it absolutely nessessary to file a sponsorship AND H&C for both? Cant we just file the H&C for both seperately? Is there not a way to do this? I will need to look at the manual more closely. Not sure what De-Facto member means. Now he is hearing impaired but he can hear at a relative normal level because he has already had the coclear transplant already. There are many angles and we have many valid arguments I am just not sure how to arrange it all.
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canadaturk View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote canadaturk Quote  Post ReplyReply Direct Link To This Post Posted: 10 Dec 2009 at 8:54pm
Sorry I do not understand #2 (file overseas sponsorship with H&C for both). This would then be two applications. From what I have read the only way we could do this would be to sponsor the mother and add the son as her dependant and then attach two H&C applications for both. Is this what you mean?
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Post Options Post Options   Thanks (0) Thanks(0)   Quote smartin Quote  Post ReplyReply Direct Link To This Post Posted: 10 Dec 2009 at 11:20pm
is there any chance to get a single parent's application in priority processing? under what circumstances parent's case can be considered on a priority basis?
thank you
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Post Options Post Options   Thanks (0) Thanks(0)   Quote arbaba Quote  Post ReplyReply Direct Link To This Post Posted: 11 Dec 2009 at 2:09am
Thanks for the information.
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ralph dzegniuk View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote ralph dzegniuk Quote  Post ReplyReply Direct Link To This Post Posted: 11 Dec 2009 at 12:22pm
there's no such thing as priority processing of an H&C application.
that's exactly why during the course of processing most applicants face removal arrangements and must deal with CBSA, Deferral of Removals and Stay Motions at Federal Court.
Given the 3-year processing time this is the inevitable reality.
However, a single parent, particularly with Canadian-born children, usually has a pretty good argument both for the H&C and Deferral of Removal.
 
regards,
 
Ralph Dzegniuk, Barrister & Solicitor (B.A., L.L.B.)
Migration Law Chambers
82 Richmond Street East, Suite 305
Toronto, ON. M5C 1P1
Phone: (416) 548 9072
Fax: (416) 548 9092
www.migrate-2-canada.com
[email protected]2-canada.com
[email protected]
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