Tue | Apr 24, 2018

How do I go about appealing for my son?

Published:Tuesday | December 18, 2012 | 12:00 AM
Deidre S. Powell, Canada

Dear Miss Powell,

I read your articles all the time and I want to congratulate you for your good work as it is helping Jamaicans worldwide. In 1999, my mother was sponsored by my sister who was a permanent resident in Canada. When they were signing up the documents, my mother did not mention my son on the application form. I was later sponsored by my mother, but she did not include my son. I was forced to leave him with his father. Now I'm trying to sponsor my son, but the application was turned down. Is there any way I can make an appeal against this decision?

- JJ

Dear JJ,

I'm sorry to hear that you are having difficulties reuniting with your son. Your situation is unfortunately not unique as I've heard of several persons who have opted to omit family members from their original application and then find that they are not able to sponsor them at a later date. Misrepresentations on an immigration application have grave consequences and are not tolerated by Citizenship and Immigration Canada or the appellate courts. Consequently, your application was refused by virtue of the Immigration and Refugee Protection Regulations (IRPR), which states that any non-accompanying family member whom the sponsor did not disclose in their original application for permanent residence will be excluded from the 'family-class' for immigration purposes. This means that they will be barred from sponsoring the person at a later date.

The general rule was reiterated in a case called, De Guzman, where the court held that "the objective of family reunification does not override, outweigh, supersede, or trump the basic requirement that the immigration law must be respected, and administered in an orderly and fair manner".

Fortunately, there is recognition that there are sometimes exceptional circumstances that should be considered and you may be able to appeal the decision of the immigration officer at the Immigration Appeal Division of the Immigration and Refugee Board of Canada at the Federal Court.

The other recourse is that you may appeal to the minister of Citizenship and Immigration, who has authority to hear your son's case. The IRPR states that the minister may, on request of a foreign national outside Canada who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent-resident status or an exemption from any applicable criteria or obligations under the law. You should note that this would only be granted where the minister is of the opinion that he is justified by humanitarian and compassionate considerations relating to the child and taking into account the best interests of the child directly affected.

It appears to me, based on the information provided, that you and your son may be able to request an exemption based on humanitarian and compassionate considerations. You must, however, prove that you meet the requirements and also show that the best interests of your child are directly affected.

This means that you will need to demonstrate things such as:

1. Full explanation of the reasons for the original misrepresentation.

2. Sincere remorse of the original applicant who failed to disclose the existence of your son.

3. Genuineness of the relationship between you, your son, and other family members in Canada.

4. Demonstration of the impact that separation has or could have on your son and other family members.

5. Initial and continuing degree of establishment in Canada by yourself and other family members.

6. Stability and family ties to Canada.

7. Unique or special circumstances of your case.

This list is not exhaustive, so I recommend that you contact a lawyer to evaluate the genuineness of your case and to assist you with your application. Remember, time is of the essence and so you should act immediately. Best of luck to you and your son.

Deidre S. Powell is a lawyer, mediator and notary public who is a member of the Jamaican and Ontario, Canada bars with office located in Ottawa, Ontario. Her areas of practice are in immigration, real estate, personal injury, family, commercial and administration of estates. Submit your questions and comments to Email: info@deidrepowell.com Subject line: Immigration or Tel: 613.695.8777.