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NON-ACCOMPANYING FAMILY MEMBERS DECLARATION

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PS410 View Drop Down
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    Posted: 05 Apr 2011 at 9:37am
Has anyone had a non-accompanying dependent who refused to have the medical exam and sent in a NON-ACCOMPANYING FAMILY MEMBER DECLARATION??? We are in this situation currently and would really like to talk to someone who went through this issue and the outcome??? Thanks
Med Exam-02/18/2011
Received FBI -03/31/2011
Paid fees-4/21/2011
Mailed Forms-04/22/2011
CIC RECEIVED FORMS-05/02/2011
Decision made-06/01/2011
AOR-07/25/2011
Prcss-10/20/2011
PPR-11/30/2011
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Post Options Post Options   Thanks (0) Thanks(0)   Quote RobsLuv Quote  Post ReplyReply Direct Link To This Post Posted: 05 Apr 2011 at 4:32pm
What exactly is a "non-accompanying family member declaration"?  What does it say? 

As far as the refusal of a dependent child to undergo medical examination - the reaction of the assessing officer will vary.  It stands to reason that an overaged dependent - beyond the age of consent in their home country - should have the right to refuse to undergo examination and make their own decision about not immigrating to Canada.  According to Section 5.12 of the OP2 Processing Manual, it is not "appropriate" for an officer to refuse an application because an overaged dependent cannot be compelled to be examined

   "Officers should be open to the possibility that a client may not be able to make a family member available for examination. If an applicant has done everything in their power to have their family member examined but has failed to do so, and the officer is satisfied that they are aware of the consequences of this (i.e., no future sponsorship possible), then a refusal of their application for non-compliance would not be appropriate.
  Officers must decide on a case-by-case basis using common sense and good judgment (this is where the problem is created) whether to proceed with an application even if all family members have not been examined. Some scenarios where this may likely occur include where an ex-spouse refuses to allow a child to be examined or an overage dependant refuses to be examined. Proceeding in this way should be a last resort and only after the officer is convinced that the applicant cannot make the family member available for examination. The applicant themselves cannot choose not to have a family member examined."

Even so, just within the past few days someone wrote their husband's inland application had been refused because he was unable to make his 21 & 19 yr old daughters (who he hadn't seen since they were 4 & 2) available for examination.  So, it still happens.  I think the key is whether or not the assessing officer believes the applicant is refusing to or interfering with the child's examination, rather than that the "child" is opting out of immigrating and signing a declaration to that effect.  I think this is the result of a misinterpretation of the Act and Regs in regards to family members making a principle applicant inadmissible - and usually happens when an officer makes the assumption that the applicant is trying to keep the dependent from being examined in order to hide something that will make the applicant themself inadmissible  (Refer to paragraph 42(a) of the IRPA and Section 23 of the Regulations for more info.) 

Anyway - so, if this "non-accompanying family member declaration" is some sort of document that can be signed and notarized by an overaged dependent, then it might work - IF the child is beyond the age of consent and you provide proof of such with the declaration.  We finally had my sons sign a "Separation Statement" saying that they did not wish to immigrate - but we asked about them signing such a form when we very first submitted the application and the processing officer refused to acknowledge or discuss the option with us.  I think, if it is going to work at all, a notarized declaration would have to be submitted with your application, along with proof (as I mentioned) of the dependent's legal right and competence to make such a decision for themselves, and then it's just (basically) a [email protected] shoot as to how things end up. 

Immigration Canada extended the age under which an applicant's children are allowed to be included as "dependents" when certain conditions are met.  But instead, applicants are being forced (under threat of being reportable for misrepresentation) to include, as "dependents", grown children who sometimes have no intention of immigrating to Canada and who see no point in spending their time and money to undergo a medical examination and submit to criminal clearance when they want nothing to do with Canada in the first place.  There's something really wrong with a system that forces people to apply for status they don't want when, very simply, if they don't undergo examination the consequences are clear - they are forever excluded from future consideration as a member of the family class and cannot be sponsored.  And, judging from the number of failed appeals of refusals under R117, this is something that Immigration Canada has no problem enforcing.  So, to my mind, if an overaged "dependent" does not want to immigrate, CIC should allow them to exclude themselves from application without it affecting the chances of the priniciple applicant to immigrate to Canada.  In my case, my overaged "dependent" had a criminal record.  He did not want to come to Canada, would have been very willing to sign a declaration saying so, but the assessing officer would have none of it and refused my application because of his arrest.  I was punished for four years for something I didn't do!  Had he been allowed to exclude himself from consideration - knowing he was inadmissible - he would have been forever banned from my sponsoring him in the future . . . but that would not have mattered as he is now beyond the age of being sponsored anyway and he is still inadmissible because of his criminal record.  There was NO WAY on earth my son was ever coming to Canada - so the only justification I can come up with for them denying him the right to be excluded and then refusing my permanent status because of him was that they wanted to punish me for having a son who got into trouble!  Apparently I wasn't fit to immigrate to Canada because I'm a horrible parent - and that kind of judgment isn't supported by the IRPA!

Anyway, excuse my rant - it's still a contentious issue for me even though we won on appeal and I'm now a PR.  Yay!  But they put us through hell - so I caution you that this is not a simple thing and you really should go into it covering your arse to the best of your ability because there are no guarantees about which way it will go in the end.        


Edited by RobsLuv - 05 Apr 2011 at 4:50pm
3/2007-applied
1/2008-Refused
12/2008-ADR failed
1/2010-Appeal allowed
4/2010-In Process(Again)
5/2010-request FBI/meds
8/2010-FBI recd
11/30/10-APPROVED!
1/31/11-LANDED!
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Post Options Post Options   Thanks (0) Thanks(0)   Quote A15x Quote  Post ReplyReply Direct Link To This Post Posted: 07 Apr 2011 at 12:03am
Hello RobsLuv,

Thank you for posting such an in depth answer to the question posted. I've read this with much interest.

I find myself in the scary situation of waiting for the answer to my application, and, to be honest, I'm scared to death.

I too have 4 children, who were, for many years and until becoming adults, in the sole custody of their father in the U.S., and whom, in fact, I have not found until 2 years ago, as my ex-husband and his then wife removed them without a word from their residence at the time. I found them over a social networking site 2 years ago and promptly provided Immigration Canada with their information. However, they all have their lives in the U.S., and they all are now adults (19, 21, 23 and 24), and none of them wanted to undergo the examinations and background checks... I live in Canada with my 4 Canadian Citizen children and my Canadian husband, who is sponsoring me. I am not an American Citizen, but from Austria.

What the questioner might be referring to is, what I experienced: I was told, when I made my application in 2006, which Immigration Canada began processing near the beginning of 2007, that I should put the children in the category of non-accompanying dependents and should then make a declaration, that I was not going to sponsor them to immigrate to Canada at any point. At the time, although I had been searching for them for years, I didn't even know, where they were and couldn't provide an adress for them (too long and painful a story to tell here)... I also provided Immigration Canada with the custody order, which showed, that my ex had sole custody of them.

As already stated, as soon as I had the children's address, I provided it to Immigration Canada, who promptly contacted them through the Buffalo office.

However, I was told from the very beginning and ever thereafter, if I entered the children as non-accompanying dependents and made a declaration, that I would at no time sponsor them to immigrate into Canada, that my application would proceed without any problems, and that the children would not be required to undergo the examinations and background checks. Providing the custody order showing, that their father had sole custody of them supposedly only served to strengthen this outcome.

It is now 2011. Our family is settled here in Canada, and my last child was born here 4 years ago. I am legally blind and have no family in Austria to go to, should my application be refused, because of my older children's refusal to go through with the examinations and background checks requested of them by Buffalo. As I applied from within Canada, there's no appeal (which I didn't know until we were already here and did my application)...

I have now asked my local MP for help, because my letters to Immigration Canada normally get answered in about 8 months, and it's always the same, no matter how hard I try to explain the situation. Always threats and more threats...

I don't know, what to think any more.
Alexandra
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Post Options Post Options   Thanks (0) Thanks(0)   Quote RobsLuv Quote  Post ReplyReply Direct Link To This Post Posted: 07 Apr 2011 at 2:02pm
I just typed up a whole reply and blew it away by touching something on my keyboard just as I went to post.  Angry  So, short and sweet: I think the key in your case is that you have a court order that shows that your children were in the sole custody of your ex.  You have declared them, you have made every effort to tell CIC where they are.  They are all over the age of consent, have been contacted by CIC, and have refused to undergo examination.  I don't think that was the case with PS410's husband - I don't know that he even knows how to get in touch with his children, and that put him in a very difficult position because, without his children saying they don't want to immigrate - CIC starts making judgments that he's just excluding them for his own purposes. 

I understand that you feel really scared about this - because things can, and do, go inexplicably wrong - in spite of the guidelines in the processing manuals.  The thing that jumps out at me is this: The applicant themselves cannot choose not to have a family member examined.  I think when it appears to the assessing officer as though the applicant is preventing examination - or is not putting in a reasonable effort to compel examination - that becomes a problem.  Therefore, if you want to do something else that might help, ask your two younger kids to sign and have notarized "separation statements" that say that they over the age of consent in their State and country of residence and, therefore, they have the right to decide where they want to live.  They need to say that they do not want to be sponsored as dependents on your application for permanent status to Canada and, therefore, will not spend time and money undergoing examination.  I have a copy of a separation statement that was given to someone else by the Seattle office - and she passed it along to me.  I can email it to you if you PM me with your email address.  My eldest son used it when Buffalo was demanding he undergo a new medical and police checks when our case went back for reprocessing after our appeal was allowed.  He was locked in on the original application at 21 - and hadn't wanted to immigrate then.  By the time he was 24, he really didn't want to - and after we submitted his separation statement, they let up and finally issued PR visas to my daughter and me . . . just what we had asked for almost 4 years earlier when we first submitted the ap.

Edited by RobsLuv - 07 Apr 2011 at 2:05pm
3/2007-applied
1/2008-Refused
12/2008-ADR failed
1/2010-Appeal allowed
4/2010-In Process(Again)
5/2010-request FBI/meds
8/2010-FBI recd
11/30/10-APPROVED!
1/31/11-LANDED!
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Post Options Post Options   Thanks (0) Thanks(0)   Quote A15x Quote  Post ReplyReply Direct Link To This Post Posted: 07 Apr 2011 at 9:19pm
Thank you so much for your reply. This is probably quite helpful. Actually, in the beginning I couldn't supply the children's whereabouts, because I didn't know them, but when I found them, I gave the information right away.

I've been told by my local MP that, upon the inquiries of his office into my case, they found out, that Buffalo had just closed the case on my kids. What my kids told me was, that they had written letters to Buffalo, explaining their points, but I don't have those letters, and they don't remember, when they wrote them. So, all I can hope for is, that they did write them. Two of them were in the Armed Forces, and one of them is still in the Navy, serving overseas, so for the most part they were nearly unaccessible (except for the occasional Facebook chat, and definitely pre-occupied.

If you still think, that a separation statement would be a good idea, despite the fact, that Buffalo has closed the case by now (and I don't know the outcome), I'll certainly try it.

My e-mail address is: [email protected]

Thanks so much for your interest and help - and encouragement.
Alexandra

However, I could try anyways to have the 2 do a separation statement. When my application began to be processed in 2007, the youngest was 15, and her brothers would have been 17, 19 and 20. My son, who is now 21, the second oldest, was married when he was 18, so he shouldn't fall into the dependent category any more, unless everything gets worked out only from the date the application was starting to be processed.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote DamCanadian Quote  Post ReplyReply Direct Link To This Post Posted: 28 Oct 2011 at 12:47pm
Robsluv,

Would you mind emailing that separation statement to me as well??  I am in a similar situation with my 19 year old.  Email is [email protected]

I would really appreciate it! :)
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Post Options Post Options   Thanks (0) Thanks(0)   Quote A15x Quote  Post ReplyReply Direct Link To This Post Posted: 28 Oct 2011 at 8:29pm
OK, since posting on the forum last I have had to take things in hand and go to my MPs office, because Canada Immigration kept making more and more demands and wouldn't listen to my explaining to them, that I had done everything I was supposed to and, according to their instructions, should not have to worry about my older kids in the U.S.

Because of the MPs office's help it came out, that Canada Immigration had never properly instructed me, and all these years were wasted in heartache and waiting because of this.

So, if you do have a dependent child in another country, whom you do not wish to sponsor at any time in future, then - it is true - you do not have to have that dependent child examined if you do the following:

1. You provide a Custody Order, which states clearly, that your ex-spouse has had sole custody of that dependent child (if this is the case).

2. You prepare a Statutory Declaration, in which you explain the reasons for your decision and that you understand, that you will never be able to sponsor your dependent child under the family class. Now, in your case, with a 19 year old, some good reasons could be:
- The child has lived with the ex-spouse for a numberof/many years and has been in his custody (if this is the case), and you have no parental rights.
- You have made every attempt you could think of to communicate with your dependent child to encourage him/her to undergo the examinations (medical, background checks...), but your child refused to cooperate for whatever reasons (invasion of privacy and sovereignty, lack of money to undergo these examinations, lack of interest...). If you are unable to connect with your dependent child (he or she doesn't want to talk to you), then you state that too.
- At any rate, at the age of 19, your child is very close to his age of majority, and certainly, as a parent, even if that child had lived with you in the past, you don't have any say any longer over the choices he/she makes. He/she is - more or less - an independent individual by that age.

Aside from that, if your child is in the US, he/she would have been contacted by the Buffalo, NY office with a slew of paperwork to fill out, and he/she can write his/her own letter of rebuttal stating his/her reasons, why he/she doesn't wish to be examined as part of your Immigration process.

It is very, extremely important though, that you have made every effort you can think of to communicate with that child and encourage him/her to undergo thee examinations, and if you can provide proof of your efforts, even the better. The child can refuse, and in that case it is quite obvious, that there's not much you can do about that and your immigration should go ahead.

You write this declaration like a letter to the Vegreville office, date it and put in bold above the letter, what it is: Statutory Declaration.

Then you take it to a Commissioner of Oaths or a Notary Public with 2 pieces of ID for yourself and have it notarized, before sending it to Vegreville.

I hope this helps, if I read your situation correctly.

Thanks for posting,
Alexandra


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Post Options Post Options   Thanks (0) Thanks(0)   Quote DamCanadian Quote  Post ReplyReply Direct Link To This Post Posted: 28 Oct 2011 at 11:46pm
Hi Alexandra!  Thanks for the response!  I suppose I should have given a few more details, but I wasn't sure if this was still an active thread.  Anyway..our situation is a bit unusual.  My son, age 19, enlisted in the US military about a year ago, and went off to basic training in July.  Because of this, he was never considered a "dependent" child when I divorced my ex, because at that time he had already enlisted.  So this means there was no custody arrangement, and had there been, it would have been joint custody, the same as my younger son (who is living with me).  After about a month in basic training, he got really, REALLY sick, and was in the hospital for a couple of weeks.  During this time, they did a CT scan and "accidentally" discovered an arachnoid brain cyst, which although it is harmless, it was a disqualification as far as the military goes, and they discharged him.  He can go to a specialist and if he receives a clean bill of health, he will be allowed to re-enlist.  Basically what I am saying here is, he went from dependent child to independent child (meaning he was self-sufficient and supporting himself financially) and then BACK to dependent again!  And because of this, he is now 19 years old and does not NEED a custody arrangement.  However, he IS now living with his father temporarily, but that is ONLY to get the medical stuff done and then come up with a new plan, whether it be re-joining the military or college or get a job and move out.  So, he would not qualify as sole custody with his father, which might hurt our case for statutory declaration.

NOW..I know for a fact that he absolutely does NOT want to live in Canada ever, ever again.  I dragged him up here for a bit and he hated it, and he vowed never to return as anything other than a visitor.  He would DEFINITELY sign and prepare that declaration.  Part of it is, he despises my current husband and blames him for the break-up of myself and his father (even though it was not true) but he will never ever agree to come back up here no matter what happens..even if everyone he knows has disappeared from the US he will still rather take his chances on the streets--he is that passionate about staying in the US.

Another issue here is if I wait for him to have this medical examination I will NEVER immigrate to Canada, because both he and his father are the KINGS of procrastination.  It doesn't matter how important it is to me, or that it NEEDS to be done..they won't do it if it is an inconvenience to them.  It doesn't help that the nearest doctor is in Buffalo and they are in Watertown NY (at least a 4 hour drive).  I have given them a time frame of December 1st to do it, but I know they won't, and it is really frustrating because it will not only delay my permanent residence application, but probably disqualify me altogether, unless he does this declaration, which he would probably be a little more likely to do than to just have the medical and police stuff done. :P

So anyway..given all of this, do you think the statutory declaration would be an option for us, or should I be trying to immigrate my husband to the US instead..lol.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote dpenabill Quote  Post ReplyReply Direct Link To This Post Posted: 29 Oct 2011 at 3:18am

The approach suggested by A15x is about as good of an explanation there is for how to ATTEMPT to deal with this and similar issues. No guarantees. Strongly ditto the post by Robsluv as well, with a lot of emphasis on the point that the applicant cannot choose to not have a dependent child examined. If the dependent child can be examined, the dependent must be examined. This cannot be waived.

Again, the approach suggested by A15x is about as good a way to approach this as one might, subject of course to the particulars of the applicant's situation.

Meanwhile, DamCanadian, here's the rub: FORGET everything you know about who is a "dependent" for purposes of U.S. domestic relations law. NOT RELEVANT! What matters is who is a dependent pursuant to the Canadian immigration law. The Canadian immigration law defining who is a dependent child is intended to facilitate bringing children to Canada accompanying a landing immigrant. It is the only definition of "dependent" that matters. Again, forget that a nineteen year old in the States is essentially an independent adult, not a dependent, not subject to the control of a parent (least not beyond the bounds of the existing relationship between them, that is, no parental control in law).

And that is what you have to deal with.

Options:

-- Wait to apply or, if need be, re-apply, until after the child is no longer a dependent child according to the Canadian immigration definition

-- Have the child examined (caveat: any criminal inadmissibility, like shoplifting or driving under the influence, makes the child inadmissible and that in turn makes the parent inadmissible, no matter that the child will never visit let alone immigrate to Canada); this, of course, is what Immigration Canada expects the applicant to do

-- Follow an approach similar to that which A15x outlines; I suggest, however, that an attempt to do the latter is best done with the assistance of a lawyer

Unfortunately this is the situation. We all carry some baggage from our former lives.

It is unfortunate that you cannot get him to go to Canada briefly just for the medical. He could get it done in Kingston, a lot closer to Watertown than Buffalo (and probably a lot easier to schedule than through Buffalo), and probably cheaper.

Bureaucracy is what bureaucracy does, or When in doubt, follow the instructions. Otherwise, follow the instructions.



BTW: Not an expert, not a Can. lawyer, never worked in immigration
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Post Options Post Options   Thanks (0) Thanks(0)   Quote A15x Quote  Post ReplyReply Direct Link To This Post Posted: 29 Oct 2011 at 12:14pm
Good advice given, and unfortunately, it is very true. The Canadian immigration process is rather archaeic and belongs to Medieval Britain serfdom. The thought alone, that you can get punished for what your children have done or are doing (for all sense and purposes adult children or young adult children, in the eyes of the world, with minds of their own) is gruesome. We could get into miles of philosophical discussions about, when a child becomes a free agent, considering, that here in Canada teenagers can go to a doctor and get abortions and birth control pills without even the knowledge of their parents... I rest my case. At least, in the U.S., when a teenager commits a crime, there's something called Juvenile Hall. Here in Canada we're debating, if hardened criminal teenagers should be punished or let go... Well, some may argue, that it's not that bad, but if you really pay attention to what's going on, it is...

However, dpenabill's assessment of the situation is despairingly right.

Here are a couple of thoughts, that might help.

1. You DO have the option to do this Statutory Declaration. And you needed to be advised of this by the Immigration call centre, if you call and try to find out, how you can deal with this situation. They CANNOT advise you on your case, but they DO NEED to provide you with your options.

2. Is your child listed as a non-accompanying dependent on your application for Permanent Residence? If so, then this is the situation, where you can make a Statutory Declaration.

3. This is not a separation statement, and it is done by yourself. Your son will have received his paperwork from Buffalo, and, if he really does not want to immigrate to Canada at any time, he will need to - at least - write a letter to Buffalo to that effect. You need to urge him to do so, and you can hold before him some of the military codes of honour. How is he going to re-enter the military and fight for his country (if this is what he believes he is doing), when he cannot lay family squabbles and disgruntlement/hatred aside to deal objectively with a situation he needs to deal with. This is not a matter of whether he likes your husband or not. He's not married to him, and really, it's not his life, especially at 19. We parents, although we love and care for and nurture our children, ultimately too are our own free agents with our own lives. This is purely following orders and doing, what needs to be done.... I guess, what I'm saying is, that you can use a little 'moral obligation' psychology on him, which is only right.

3. If your son is not listed as a non-accompanying dependent on your application, then you need to send a letter to the immigration office telling them exactly, what you've written on your last post, so they understand, how the circumstances have changed for you and your son. You do have a pretty good case in the fact, that he was here with you briefly and so hated it, that he returned to the U.S. and enlisted in the military, and, despite his health problem, is not coming back, not under any circumstances. Yes, it is true, that by Canadian Immigration law he is a dependent child until he is 25, unless he is married or re-enlists, but - although you can lead a horse to the water - you can't make it drink. He is an old enough horse, that you can't force him. 

4. When you write your Statutory Declaration, even if your son doesn't write his letter to Buffalo, although this would really strengthen your case, you need to ensure, that you explain, that and how you did everything in your power to get him to cooperate with the Canadian Immigration authorities. This is of paramount importance.

If you don't get anywhere with all of this, then I would suggest, that your husband goes to his MPs office with you, you two state your case (I presume he is your sponsor), and you get them to look into the situation, especially when they know, that you have done everything you were required to and everything you could regarding your son.

Most of us can't afford a lawyer at $400 an hour, and most of the free legal advice is well meant, but not very helpful. You go to these free legal clinic appointments and come back none the wiser.

Hope this helps. and I too must emphasize, that I have no legal training, but am speaking purely from experience. Although, I really do hope for you, that the advice you get here from this forum can help you with your case, so you don't feel like you are trying to battle this all on your own, as I had for so many years. Most importantly, always stay in touch with Immigration Canada and advise them of any and all changes to your circumstances, and DO ask them, how you can deal with this changed situation.

Best of luck to you,
Alexandra
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