How to Apply for a Study permit for Canada – the logic of a study permit from outside of Canada

By Author: Arvin Afzali | August 10, 2017

How to Apply for a Study permit for Canada – the logic of a study permit from outside of Canada

Study permit from outside of Canada

This article will briefly review what is required to apply for a study permit from outside of Canada. We remind the reader that this does not necessarily apply to everyone seeing that the Canadian Immigration Law is complex and therefore this article should not be construed as Legal Advice.

In the Canadian Immigration Law context, a study permit is defined at R. 2 of the Immigration and Refugee Protection Regulations, hereafter the Regulations, as “a written authorization to engage in academic, professional, vocational or other education or training in Canada that is issued by an officer to a foreign national. In General, a foreign national who wishes to study in Canada must obtain a study permit before entering Canada pursuant to R. 213 of the Regulations. There are some exemptions that allow some foreign nationals to apply at a Port of Entry or after entry into Canada. Some foreign nationals are even exempt from applying for a study permit such is the case ”  if the duration of their course or program of studies is six months or less and will be completed within the period for their stay authorized upon entry into Canada” pursuant to R. 188 (1) (c) of  the Regulations. 

This article will address foreign nationals who want to apply outside of Canada for a study permit. Pursuant to R. 216 (1) of The Regulations, an international student may be issued a study permit if upon examination by an officer it is determined that the foreign national meets the requirements of a temporary resident application as well as the requirements set out for a study permit.

A visa officer considers many factors when assessing whether or not a foreign national should be issued a study permit. At a minimum a foreign national must demonstrate five things:

  1. That they have been accepted in a designated learning institution by presenting a letter of acceptance from the institution unless they are exempt pursuant to R 219 (2) (a) of The Regulations.
  2. That they will have the financial capacity to pay their tuition as well as cover their living expenses while in Canada.
  3. That their intention to study in Canada is genuine (bona fides).
  4. That they are not inadmissible into Canada.

Despite meeting these requirements an officer might still determine that you do not meet the requirements pursuant to section 219 and 220 of the Regulations or that you will not leave Canada upon the expiry of your status therefore it is important to demonstrate all the requirements for a temporary residence application such as your travel history (although an absence of travel history is a neutral factor), ties to the home country and Canada as well as the general requirements for a study permit.

Applicants must also ensure they meet the documentation and form requirements of the Visa Office  of their country of residence which can be found here by selecting the country from which the applicant is applying form.

We have thus seen that applying for a study permit can be quite complex in some circumstances. If you would like to come and study in Canada and are uncertain as to how to proceed contact the Chaudhary Law Office, a Toronto Immigration Law Office specializing in Canadian Immigration Law.

I have a visitor Status in Canada can I apply for a work permit in Canada?

By Author: Arvin Afzali | July 31, 2017

I have a visitor Status in Canada can I apply for a work permit in Canada?

I-have-visitor-visa-can-I-apply-for-a-work-permit-toronto-immigration-lawyer-chaudhary-law-office

A lot of people contact us and ask us if they can apply for a work permit with their visitor visa or their visitor record.

The answer is not as straight forward seeing that there are various factor’s that must be considered such as the country of citizenship and whether or not they have a family member in Canada with status in Canada either temporary (work, study, work permit exempt, temporary resident permit, Permanent resident).

The general rule is that a foreign national must apply for a work permit before entering Canada (R. 197 of the Immigration and Refugee Protection Regulations). However, some foreign nationals may apply for a work permit when entering Canada (at the border) if the foreign national is exempt from the requirement to obtain a temporary resident visa (R. 198 (1)  of the Immigration and Refugee Protection Regulations).  For a list of foreign nationals who are exempt from a temporary resident visa see R 190 of Immigration and Refugee Protection Regulations, they include:

  • citizens of Andorra, Antigua and Barbuda, Australia, Austria, Bahamas, Barbados, Belgium, Brunei Darussalam, Chile, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Federal Republic of Germany, Finland, France, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Mexico, Monaco, Netherlands, New Zealand, Norway, Papua New Guinea, Poland, Portugal, Republic of Korea, Samoa, San Marino, Singapore, Slovakia, Slovenia, Solomon Islands, Spain, Sweden or Switzerland;
  • British citizens,
  • British overseas citizens who is re-admissible to the United Kingdom, or
  • Citizens of a British overseas territory who derives that citizenship through birth, descent, naturalization or registration in one of the British Overseas Territories of Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn Island, Saint Helena or Turks and Caicos Islands; and
  • Nationals of the United States or a person who has been lawfully admitted to the United States for permanent residence.

Foreign Nationals may not apply after entering Canada despite being exempt from the requirement of holding a temporary resident Visa (R.198 (2) of the Immigration and Refugee Protection Regulations) if they:

  • do not have a valid job offer (LMIA); or
  • if they are not from the United States or residents of Greenland or St. Pierre and Miquelon; or
  • are a foreign national who require a medical certificate and do not have said certificate; or
  • are participants in an international youth exchange program, unless they are a national or permanent resident of the United States or their application for a work permit was approved before their entry into Canada

A Foreign national may apply for a work permit in Canada pursuant to R. 199  of the Immigration and Refugee Protection Regulations if they:

(a) hold a work permit;

(b) are working in Canada under the authority of section 186 (are work permit exempt) and are not a business visitor within the meaning of section 187;

(c) hold a study permit;

(d) hold a temporary resident permit issued under subsection 24(1) of the Act that is valid for at least six months;

(e) are a family member of a person who holds a work permit, study permit, is exempt from a work permit or hold a TRP;

(f) are in a situation described in section 206 or 207, the foreign national:

  • has made a claim for refugee protection that has been referred to the Refugee Protection Division but has not been determined; or
  • is subject to an unenforceable removal order; or
  • is a member of the spouse or common-law partner in Canada class
  • is a protected person within the meaning of subsection 95(2) of the Act;
  • has applied to become a permanent resident and the Minister has granted them an exemption under subsection 25(1), 25.1(1) or 25.2(1) of the Act; or;
  • is a family member of a person described in any of paragraphs (a) to (d).

(g) applied for a work permit before entering Canada and the application was approved in writing but they have not been issued the permit;

(h) are applying as a trader or investor, intra-company transferee or professional, as described in Section B, C or D of Annex 1603 of the Agreement, within the meaning of subsection 2(1) of the North American Free Trade Agreement Implementation Act, and their country of citizenship — being a country party to that Agreement — grants to Canadian citizens who submit a similar application within that country treatment equivalent to that accorded by Canada to citizens of that country who submit an application within Canada, including treatment in respect of an authorization for multiple entries based on a single application; or

(i) hold a written statement from the Department of Foreign Affairs and International Trade stating that it has no objection to the foreign national working at a foreign mission in Canada.

As you can see although there are some exemptions that allows a person to apply for a work permit in Canada in general most people have to apply from outside of Canada. The fact that a person has a visitor visa or a visitor record does not necessarily mean that they can apply for a work permit after entering Canada,

If you are contemplating coming to Canada and are unsure as to whether you have to apply for a work permit from outside of Canada or if you can apply for a work permit with your current visitor status in Canada contact the Chaudhary Law Office.

Loss of Canadian Permanent Resident Status

By Author: Arvin Afzali | July 26, 2017

Loss of Canadian Permanent Resident Status

Permanent Residence is technically not “permanent” in the sense that a person may lose their status if they don’t comply to some requirements. Section 2 (1) of the Immigration and Refugee Protection Act (Act) defines a permanent resident as “a person who has acquired permanent resident status and has not subsequently lost that status under section 46.”

Section 46 if the Immigration and Refugee Protection Act defines five ways in which a person may lose his or her permanent resident status:

  1. If they become a Citizen of Canada,
  2. if they fail to comply with the residency obligation under section 28 of the Act,
  3. if a removal order made against the person has come into force due to inadmissibility issues,
  4. if a final determination is made that they are not refugees or entitled to protection (person in need of protection, Pre Removal Risk Assessment); or
  5. They Voluntarily renounce their status (Permanent Resident Status)

We will briefly review each of these categories.

1. When you become a Citizen of Canada

Once you become a Canadian Citizen you automatically loose your permanent residence Status. As a Citizen not only do you benefit from the same rights that you did as a Permanent Resident but you also obtain additional rights as well.

2. Failure to meet the Residency Obligations

Permanent_Resident_Residency_Obligation_Calculation_Immigration_Law_Office_Chaudhary_Law_Office

You can loose your permanent resident status if you fail to fulfill your residency obligations. Although, one is not required to remain in Canada indefinitely section 28 of the Immigration and Refugee Protection Act does require that a permanent resident spend 730 days out of 5 years in Canada. Therefore, a permanent resident does have to satisfy an officer when applying to renew their Permanent Resident Card or at a Port of Entry that they meet the residency obligations. To demonstrate compliance with this requirement one can submit documentation such as proof of employment, proof of enrollment at a school, bank statements, pictures and statements from friends and family as well as other documents.

There are some exemptions that allow a permanent resident who failed to remain in Canada for 730 days out of 5 years to get days spent outside of Canada counted as days spent in Canada:

  • If you were outside of Canada with a Canadian Citizen who is your spouse or common-law partner.
  • If you were employed outside of Canada on full-time basis for a Canadian Company or Government.
  • If you were outside of Canada with a Canadian Citizen who is your spouse or common-law partner who is employed full-time working for a Canadian Company or the Government of Canada.

3. Inadmissibility and Removal Orders

chaudhary law office picture of detention centerA Permanent Resident can be determined to be inadmissible in Canada on grounds of Security Reasons, human or international rights violations, Serious Criminality, Organized Criminality and Misrepresentation, Failure to Comply with the Act such as meeting the residency obligations (see section 2 above).

As a result of being determined inadmissible in Canada one can loose their Permanent Resident Status.

The process usually involves an allegation of inadmissibility to be reviewed by an officer who then decides whether or not to refer the matter to the Immigration Division of the Immigration and Refugee Board where the matter will be decided at a hearing which might or might not have a right of Appeal seeing that some grounds of inadmissibility do not have a right of Appeal such as Serious Criminality where the term of imprisonment is more than 6 months.

4. Final Determination that a Person is not a Refugee or a Person in need of Protection

Immigration-and-Refugee-Board-Of-Canada-620x290If a person’s refugee claim involved Fraud or Misrepresentation they can loose their permanent resident Status. The Minister upon discovering that there has been fraud or Misrepresentation makes an application to vacate to the Refugee Protection Board pursuant to section 109 of the Immigration and Refugee Protection Act. If the application is allowed and the Board vacates the original decision for refugee protection this will result in the person loosing their permanent resident status in Canada.

5. Renouncing your Permanent Resident Status

A person may voluntarily renounce their Status as long as they have Status (Citizenship or PR) in another country. For more information and submitting this type of application click here.

We have seen five ways for which a person may loose their status. For more information regarding Permanent Residence status contact the Chaudhary Law Office an Immigration Law Office in Toronto, Canada.

Immigration Consultants and Ghosts in Canada

By Author: Admin | July 6, 2017

Immigration Consultants and Ghosts in Canada

Immigration Consultants and Unlicensed Consults in CanadaPhoto Credit: https://cacm.acm.org/magazines/2014/7/176209-licensing-professional-software-engineers/abstract

Unlicensed consultants – or “ghost” consultants – cause problems to the immigration system because they tend to encourage their clients to lie on their applications. They offer to fill out forms (without talking to the client), create required documents (such as school papers), create bogus offers of employment, or fabricate marriages. Sometimes applicants are “in” on the fraud, and other times they have no idea what is going on (as far as they’re concerned, they’re just applying for a visa and this is a legitimate local businessperson). The difficulty is trying to protect the latter group from going to a ghost consultant in the first place, and punish the former group for damaging the integrity of the system.

 

The problem stubbornly persists. Part of this problem is a lack of investigative resources on the part of the CBSA (Canada Border Services Agency – the agency tasked with immigration enforcement). In a report to Parliament, Jennifer Lutfallah from the CBSA added that awareness campaigns about unregulated consultants are, after “criminal investigations … the only mechanism we have for enforcement.”  Thus, given the expense of such criminal investigations, Canada Border Services Agency only pursues cases where more than one case has been improperly processed by a Ghost Consultant.

 

The effectiveness of Awareness campaigns are perhaps analogous to the Public Service Announcements of the 1970s, which unintentionally encourage opposite behaviour. The CBSA website is vague on the phenomenon of ghosts who counsel persons to lie on an application.  In the immigration context, there is an utter lack of acknowledgement of the problem; nowhere on the CIC (or now, IRCC) website is there a reference to Ghost Consultants.  I’ve also written before that the CIC website actively encourages persons without a lawyer or consulting license to provide immigration services.

 

Further, IRCC often fails to differentiate between the services offered by an authorized immigration lawyer and criminals. On IRCC’s website, IRCC advises individuals on their website that “[i]f [they] follow the instructions in the application guide, [they] can complete the application form and submit it on [their] own.” This may be true for some applications, where the applicant obviously and unambiguously meets the criteria of a popular immigration program. In other cases, where the applicant’s eligibility is unclear, then the instructions will only provide enough information to be refused. And some applications, such as criminal rehabilitation,  humanitarian and compassionate (H&C) applications, or self-employed applications offer little to no instructions beyond the minimum required to be considered complete, and no information on what the actual criteria for acceptance is. The difference is that an immigration lawyer will help you present the truth of your case such that ambiguities can be adequately explained, while a Ghost Consultant will ignore it entirely and create a fictional account.

 

Ghost consultants rely on their victim’s combination of desire to come to Canada and ignorance of the process. Some visa seekers victimized by Ghost Consultants are retained by individuals who are too language deficient (or blamelessly ignorant) to invest in a regulated immigration consultant or a licensed Canadian Immigration Lawyer.  Others are victimized by private schools for international students; such schools have a financial incentive to market themselves as part of a pathway to permanent residency, sometimes wrongly.

 

One recommendation from the Parliamentary Committee includes giving an option for a candidate whose application was discovered to have been processed by a Ghost Consultant, an opportunity to retain a licensed lawyer or other representative.  Such a recommendation may protect applicants who were unaware of the distinction between a Ghost Consultant and licensed consultant.

 

I was the lead counsel on a matter where individuals used clerical services and were wrongfully determined to have used a ghost consultant.  In that case, significant resources were poured into an investigation that meant to punish immigration applicants rather than the individuals who were allegedly acting as Ghost Consultants.  After the expense of a successful Federal Court case, the candidates were successful; their cases shall now be reassessed by a different visa officer.

 

If seeking advice about applying for a visa, feel free to contact Chaudhary Law Office; we’re licensed Canadian lawyers by the Law Society of Upper Canada.

What are Removal Orders and What You Need to Know

By Author: Admin | June 28, 2017

       What are Removal Orders and What You Need to Know

What are Removal Orders and What you Need to Know

Photo Credit: http://www.cbc.ca/news/politics/deportations-jamaica-honduros-1.3490185

    The Canada Border Services Agency (CBSA) and Immigration, Refugees and Citizenship Canada (IRCC) are vested with the authority to issue various Removal Orders. There are three distinct types of Removal Orders which may be issued by the (CBSA) or (IRCC). The relevant Removal Orders include; an Exclusion Order, Departure Order, and Deportation Order. It is important to understand what each order entails, including the associated rights and responsibilities of an individual who is subject to each particular Removal Order.

      An Exclusion Order typically stipulates that the relevant individual may not return to Canada for a full year. However, if the Exclusion Order is issued due to misrepresentation, the individual may not return to Canada for a period of five years. In addition, it is the responsibility of the individual who has been issued an Exclusion Order to reimburse the (CBSA) for any costs that are associated with removal from Canada. If an individual wishes to return to Canada within the relevant period of exclusion, that individual must obtain an Authorization to Return to Canada (ARC). For more information on the process of applying for an Authorization for Return to Canada please see this relevant ARC link.

    A Departure Order mandates that an individual must leave Canada. A person who is issued a Departure Order has 30 days to leave Canada in order to be eligible to return to Canada at a future date. It is important for an individual who is subject to a Departure Order to confirm their departure from Canada with the Canada Border Services Agency (CBSA) at the relevant port of exit. The failure to confirm the necessary departure with the (CBSA), or the failure to leave Canada within 30 days of a Departure Order taking effect will result in the issuance of a Deportation Order. In addition, an Authorization to Return to Canada (ARC) will also be required in order to return to Canada at a later date.

     A Deportation Order permanently prohibits an individual from returning to Canada. An individual who is subject to this order may not return to Canada without obtaining an Authorization for Return to Canada (ARC). An individual who wishes to apply for an (ARC) must also repay the CBSA any costs associated with their removal from Canada.

     It is possible to appeal a Removal Order with the Immigration and Refugee Board of Canada (IRB) in certain instances. However, once a Removal Order takes effect, it is important to leave Canada immediately. The failure to leave Canada in these circumstances may result in the issuance of a warrant for arrest by the Canada Border Services Agency (CBSA).

    A Refugee Claimant will typically receive a Conditional Removal Order. The Conditional Removal Order will become a valid Removal Order if the Refugee Claim is not accepted.

    For more information regarding Removal Orders please visit this link to the Canada Border Services Agency (CBSA) website.

If you have been issued a Removal Order and require legal assistance contact      Chaudhary Law Office.  

Canadian Sponsorship of Adopted Children and Other Relatives for Permanent Residence: A Brief Overview of the Low Income Cut-Off (LICO)

By Author: Admin | June 7, 2017

Canadian Sponsorship of Adopted Children and Other Relatives for Permanent Residence: A Brief Overview of the Low Income Cut-Off (LICO)

Canada_Sponsorship_Adopted_Children_Permanent_Residence_Chaudhary_Law_Office_Immigrationsource: https://afth.org/wp-content/uploads/2015/09/SPRING-SUMMER-ISTOCK-Bi-racial-family.jpg

      The sponsorship of an adopted child or other relative can be an exciting and joyful prospect. There are many important factors to consider if you are hoping to sponsor an adopted child or other relative in Canada. The sponsorship of an adopted child or other relative is a significant commitment which entails a number of important obligations that are associated with this undertaking. A sponsor is compelled to provide necessary financial support and basic requirements for the sponsored adopted child or other relative. As the financial obligation to provide support for sponsored adopted children and other relatives is significant and binding, the government of Canada requires a sponsor to meet relevant minimum income requirements.

     The federal government of Canada issued a Federal Income Table which dictates the relevant criteria associated with the Low Income Cut-Off (LICO) for sponsors of adopted children and other relatives in provinces other than Quebec. An applicant, who is hoping to act as a sponsor must provide proof of their available income in the form of a Canada Revenue Agency (CRA) Notice of Assessment.

    The minimum required income for an applicant sponsor under the Low Income Cut-Off (LICO) criteria is $24,600 for a one-person household (consisting of the sponsor alone). The minimum required income increases relative to the size of the sponsor’s family unit. A relevant chart pertaining to the Low Income Cut-Off (LICO) from the Sponsor’s Guide for Sponsorship of Adopted Children and other relatives has been included below.

Low Income Cut-Off (LICO)  – 2017

Size of Family Unit     Minimum necessary income

1 person (the sponsor) $24,600

2 persons         $30,625

3 persons         $37,650

4 persons         $45,712

5 persons         $51,846

6 persons         $58,473

7 persons         $65,101

More than 7 persons, for each additional person, add $6,628.

    For more information it may be helpful to consult the Sponsor’s Guide (IMM 5196) for Sponsorship of adopted children and other relatives.

Sponsoring an adopted child or other relative can be a complex process. If you require assistance in creating an application for the sponsorship of an adopted child or other relative contact  Chaudhary Law Office.

Express Entry Draw of May 26, 2017 – FSTC lowest to Date

By Author: Admin | May 29, 2017

Express Entry Draw of May 26, 2017 – FSTC lowest to Date

Immigration Canada Federal Skilled worker program Chaudhary Law

The Express Entry draw of May 26, 2017 was, for the Federal Skilled Trades Category (FSTC) and not the Canada Experience Class or the Federal Skilled Worker Class, the lowest ever at 199 points. The FSTC category is distinguished by the lower score required in English and / or French. However, the available occupations are limited to technical ones, and requires a job offer in Canada, or a licence to ply the intended trade issued by the appropriate provincial authority.

The draw of 2017-05-26 also had a second minimum threshold of 775 points confined to those Express Entry profiles that were eligible for a Provincial Nominee Program. Most provincial nominee programs require work experience in the province, and evidence that the individual would reside in the province if granted permanent resident status.

As a whole, this Express Entry draw looks optimistically low (in terms of minimum requirements), but in fact, is a draw that is confined to Express Entry profiles with very distinguishing features than those that are usualy encountered under the Express Entry System, as described above.

On the positive side, the low score given for the FSTC is an acknowledgement that the level of English or French for persons in those hands-on or technical occupations need not be particularly high, given the specialized skills possessed by those FSTC .

The need for immigrants with diverse skills is consistent with Canada’s burgeoning services sector which complements Canada’s diverse economic base. Similarly, the accommodation of immigrants who are destined to the less populous provinces of Canada would help allay the problems associated with population growth being confined to Canada’s large cities, such as environmental sustainability.

A related issue is whether those immigrants who were granted status in one of the smaller provinces will remain in said smaller province. The populations of such provinces being low (with concomitantly less economic opportunity) may mean that the provincial nominee programs intent of spreading immigration to smaller provinces may be more difficult if new immigrants can’t economically support themselves, or (as is the intent of provincial business programs,) create a job opportunity for themselves. This concern is particularly amplified given mobility rights accorded to permanent residents under Canada’s Charter of Rights and Freedoms.

If you need help with creating an Express Entry profile or have questions regarding the Comprehensive Ranking System, contact the Chaudhary Law Office.

Hearings at the Immigration Division – Admissibility and Detention Review

By Author: Admin | May 24, 2017

Hearings at the Immigration Division – Admissibility Hearing and Detention Review

chaudhary law office picture of detention center

Located at 385 Rexdale Boulevard, the Immigration Division of the Immigration Refugee Board not only decides on the liberty of those detained therein, but also whether a permanent resident or foreign national should be deported from Canada.

Some hearings take longer than others.  For example, hearings relating to criminality may be relatively short (particularly where there is no dispute that a person was convicted of a crime).  On the other hand, highly contested hearing may take two or three days. . Lengthier hearings may be associated with matters such as misrepresentation of a material fact under Canada’s immigration laws.

The outcome of such hearings often culminate in an oral decision.  The oral decision is dictated to the parties.  Other tribunals such as the Refugee Protection Division or Immigration Appeal Division opt to send the decision in the mail, rather than forcing the parties to listen to one’s life in Canada being allowed to continue (or conversely an oral pronouncement as to why a person’s life in Canada is terminated).  The assumption may be that counsel duly retained to represent a person concerned cannot be entrusted to convey a decision to her client.  Rather, the client must be hauled into the hearing in person to hear the decision.

It is a challenge when parties are summoned to return only for the purpose of listening to a live dictation of the reasons for decision, particularly where the Member recites neutral facts and reserves the pronouncement for the end of the oral recitation.   The anticipation has to be contained.  Such anticipation is amplified if the person who is the subject of the decision is not conversant with either official language.  Some clients, upon hearing the result, uttered after a long narrative don’t understand, leading counsel to translate in a rudimentary way such as “You Won,” or, “You Lost.”

Many Members at the Immigration Division are appointed from the ranks of the Canada Border Service Agency (“CBSA”).  There is an uncomfortable feeling that the culture of enforcement associated with working as a CBSA employee colours the view of individuals who are subject of an admissibility hearing.  The mandate of the CBSA officers is to pay high degree of scrutiny to those seeking entry to Canada.  Some CBSA officers are allowed to carry firearms.  The phenomenon of individuals behaving badly, (documented in shows such as “Border Security” ) reinforces a culture of enforcement.  A  culture of enforcement may be minimally described as possessing a more skeptical view of everything uttered or written by a candidate seeking a visa to Canada; a prism that emphasizes the darker characteristics of human behaviour.

The seating position in the hearing room favours the CBSA, where the CBSA representative generally sits near the exit to the courtroom.  Such a position assumes the worse case scenario: that the client, upon receiving a decision that his life in Canada is over (through the issuance of a deportation order), may react in a way that necessitates a speedy getaway for the CBSA officer away from said hearing room.

Fun fact: the desk within the hearing room where the CBSA officer sits contains a discrete button that contacts security in the event  dangerous conduct transpires within said hearing room.  I presume this includes dangerous conduct of wayward counsel as well as their clients.

Sponsoring Children for permanent residence in Canada when Custody is an Issue

By Author: Admin | May 16, 2017

The Challenge of Sponsoring Children for permanent residence in Canada (or Using Humanitarian and Compassionate arguments)  when Custody Is An Issue

Children-sponsorship-canada-Permanent-Residence-Chaudhary-Law

Sponsorship of children under the family class requires a parental relationship.  This relationship  must be by blood, or adoption.   More details can be seen here  [1].   However, in the case of a sponsorship where there is a divorce or just a child involved, an additional requirement is needed, specifically, custody over the child.  This can be challenging as I wrote earlier.   

The situation is more difficult where a father or mother of a child immigrates to Canada before the child, the child often being in the custody of a grandparent or the other parent.  Aside from the need for custody in estranged relationships,  the phenomenon of the already immigrated parent not declaring the existence of the child when that parent obtained her permanent resident status,  may jeopardize the ability of that child from ever being sponsored under Regulation 117(9)(d) of the immigration refugee protection regulations.  

Further, the parent seeking to sponsor an undeclared child may be in jeopardy of having their own permanent  resident status removed on the  basis of  committing a material misrepresentation when they applied for their own permanent residency.  This may even affect those persons who are Canadian citizens who fail to declare a dependent child.

There are remedies such as humanitarian and compassionate submissions in an application for permanent residence to sponsor a child. Such submissions would have to address whether it is in the best interests for a child to be in Canada despite failing to be considered as a member of the family class.  

Such humanitarian and compassionate applications are not ‘slam-dunks’ in terms of the chances of success.  There must be credible evidence (usually from professionally-credentialed third parties). that speaks to what is in the best interests of a child.  There also should be some expression of why the current separation of the child from the parent in Canada cannot be maintained. The Canadian-based parent’s circumstances are relevant.  Such circumstances include the financial circumstances of the Canadian-based parent.

It is not sufficient to show that Canada has better opportunities for children seeking to  obtain permanent status in Canada.   Similarly, the presence of family members in the country where the child resides may lead an officer to ask about whether the existing persons who care for the child are able to safeguard  the best interests of the child.

The situation where a child has had visitor status in Canada for a number of months and is with the Canadian parent due to an interim custody order is different.  If said child has been under the care of the Canadian-based parent for a long time, then more evidence could possibly be obtained such as the school marks, testimonials from teachers and neighbors, and reports from medical professionals. Such evidence would presumably, show that it is in the best interests of the child to remain in Canada.

Seeking advice on bringing a child to Canada permanently?  Need Immigration advice? Contact the Chaudhary Law Office

[1] Please note that the link which refers to the age of dependent children being under 19 shall be subject to changes which shall return the age of a dependent child to under age 22.  Those changes are slated to become effective on October 24 2017 as per  http://www.gazette.gc.ca/rp-pr/p2/2017/2017-05-03/html/sor-dors60-eng.php

Canada Border Service Agency – Greater Toronto Enforcement Centre

By Author: Admin | May 1, 2017

Canada Border Service Agency – The Greater Toronto Enforcement Centre (GTEC)

A Canada Border Services Agency (CBSA) logo is seen on a worker

A base of operations for the Canada Border Service Agency is The Greater Toronto Enforcement Centre (GTEC), located at 6900 Airport Road, Mississauga Ontario.  GTEC’s public area is like a subway station in a large urban centre.  There are Advertisements in the form of Cable Pulse 24 emanating from two flat screen televisions.  There is an ethnically  diverse group of people, many signs directing one to wheel chair accessibility, a device that disseminates a ticket (required to see an enforcement officer), and the persons  waiting are understandably glum.    The seats are durable and uncomfortable, some having that ability to impress a waffle pattern onto your body.  There is an escalator at one part of the  public area as well (the back entrance).

Some officers wear uniforms and others do not.  You speak to an officer through glass containing a metallic circle that allows the officer to hear you despite the presence of the surrounding wall of glass, as is similar to a transit worker at a subway station’s entrance.  I recall the level of formality being much lower than in the late 1990s.  At that time, I was able to view a CBSA file in the area reserved for officers, and  use the CBSA’s internal photocopier.  That level of formality subsequently changed.

Like a subway station, GTEC can be a starting point for you to be taken away to a different destination.  In some cases you may be taken to be detained temporarily at 385 Rexdale Boulevard, or other institutions.   In other cases, you may be detained and then removed from Canada.

Other interactions may be relatively innocuous, such as when you are instructed to report to a CBSA officer periodically in person, once or twice a month.  Reporting also takes place at an alternative CBSA office, located at 74 Victoria Street, 10th floor.  Other meetings may be convoked to offer  a Pre Removal Risk Assessment, or to update a residential address, or to provide information regarding  passports or other government documents like birth certificates.

Cooperation with CBSA officers is essential where individuals are instructed to facilitate their removal from Canada.  The failure to demonstrate cooperation with the CBSA may lead to detention.  If there an individual is summoned to GTEC and is not conversant in one of Canada’s official languages, then an interpreter should accompany the individual.

The meeting rooms are meant to accommodate two persons plus an officer and are quite small.  The sound insulation is such that persons who have meeting In adjacent rooms can sometimes hear eachother.  There is something of an overflow sections where privacy is even more sparse, where unrelated clients have discussions with officers separated by a burgundy curtain.

If you have an invitation to meet a CBSA officer at GTEC, you may wish to consult our office about that invitation and what may occur at GTEC.

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I was born and raised in Toronto, Ontario Canada. I am an accomplished author and lecturer and am consulted by the media and other immigration lawyers and consultants on immigration matters and challenging immigration cases, appeals, and federal court matters.

Please call me for any Canadian immigration issues or concerns you may have: 416-447-6118

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Contact Information

Chaudhary Law Office
18 Wynford Drive Suite 707, Toronto
Ontario , M3C 3S2 Canada
Phone: 416-447- 6118
Fax: 416-447-6746

Client Testimonials


Salam Max

MY spouse [xxxxxx] has received her passport back with the immigrant Visa and landing papers and other related doxs. All of the dox are attatched for your references. congratulations and Thanks Thanks Thanks

-Hamid



Hello again Max

I just wanted to thank you again for your exertions yesterday and for all your preparation leading up to the hearing. I felt that I was well represented and that you articulated the issues and the argument for my case very clearly. Look forward to hearing from the judge next. Hope you are feeling better today,

-Anne Marie


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