Who would like to explain the "at the time of that application"117(9)(D)? Does it include "the first time landing"

[joe zhao]

Help us please: in 117(9)(d), the sponsor previously made an application for permanent residence and became a permanent resident and at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.
Who would like to explain the "at the time of that application"? Does it mean the time of my first application for permanent residence?

. Background

I submitted my immigration application to Canada in 2008 and was issued my visa on October 20, 2010.
My biological son was born out of wedlock. He was born on January 2, 2011,
while I had booked my flight a year in advance, which was scheduled for February 19, 2011.

Considering that my son was a newborn baby who urgently needed his mother’s care, and given the various constraints at the time,
The only choice available to me was to land in Canada first and, once I had arranged everything and all conditions were ready,
Submit a family sponsorship immigration application for him so that I can bring him to Canada.

Because of my lack of understanding of Canada’s immigration procedures, I failed to declare my newborn's information promptly before landing,

As a result, my son was denied a visa by a visa officer under IRPR 117(9)(d), even though he had already received and completed the medical examination and biometrics required by IRCC.

The visa officer considers: the sponsor(me) did not declare my newborn's information before my first landing.

Who would like to explain "at the time of that application", including "the time of first landing"?

 

[Naturgrl]

What immigration program? You need a lawyer. When did you land a PR? If you landed after January 2 then you were under legal obligation to include child in application. Doesn't matter that you booked a flight as that is not a valid reason. All you had to do was add child before landing, have child take a medical and list a non accompanying.

 

[joe zhao]

What immigration program? You need a lawyer. When did you land a PR? If you landed after January 2 then you were under legal obligation to include child in application. Doesn't matter that you booked a flight as that is not a valid reason. All you had to do was add child before landing, have child take a medical and list a non accompanying.

Hi, Naturgrt: economic class. A strict interpretation of paragraph 117(9)(d) would mean that newborns after the first application are not within the scope of the article, and the article does not mention the concept of "landing" time.

 

[armoured]

Who would like to explain the "at the time of that application"? Does it mean the time of my first application for permanent residence?

I believe that IRCC will take the position that 'time of the application' will include the entire period up and until the point when you 'landed' and became a PR. Being issued the (immigrant) visa may mean 'approved' but it does not mean the process is complete. And submitting the initial application certainly doesn't, either.

I believe if you look carefully at the documentation you received together with the visa (the explanatory docs, the COPR, etc), the proviso or caveat was repeated multiple times that you MUST advise IRCC if your family composition changes. The COPR contains a signature block where you attest (swear) that the information above is correct, which includes (of course) your immediate family members).

The only choice available to me was to land in Canada first and, once I had arranged everything and all conditions were ready,
Submit a family sponsorship immigration application for him so that I can bring him to Canada.

This was NOT your only choice. Your choices included following the instructions provided, that you were to contact and advise IRCC immediately if your family composition changes. (If you'd done so, they almost certainly would have extended your visa/copr validity or issued new ones, after your child had had medical check, etc).

Because of my lack of understanding of Canada’s immigration procedures, I failed to declare my newborn's information promptly before landing,

IRCC will take the position that documentation provided to you made the points above clear, and that you have an obligation to read and understand.

The visa officer considers: the sponsor(me) did not declare my newborn's information before my first landing.

Who would like to explain "at the time of that application", including "the time of first landing"?

"Landing" (or first landing) is the point at which one becomes a permanent resident, i.e. when (in your case) you arrived in Canada on your flight and completed the admin procedures with the passport/border officer (call it the administrative 'landing' if you wish). That's when the application to become a PR can be considered complete.

As noted, you'll need a lawyer if you wish to attempt to do anything about this - and the chances are not good.

 

[armoured]

Hi, Naturgrt: economic class. A strict interpretation of paragraph 117(9)(d) would mean that newborns after the first application are not within the scope of the article, and the article does not mention the concept of "landing" time.

I responded above on this point - I think this point of yours is not at all a 'strict' interpretation. When one submits an application for a mortgage loan, for example, it's quite well understood that the application process is not 'complete' when first submitted.

At any rate: this particular line of argumentation is going to be a complete dead end. There were certainly other exchanges of other documentation, including your COPR, that informed that you were required to advise of change of family composition before landing - and you signed the COPR* which had that same information (and did nothing to advise that you had a child already at that point, hence attesting to false information).

Do check with a lawyer, of course. I'm sure they'll tell you that this 'application' argument is not going to fly.

* I do not know exact form of the COPRs and info contained in 2011 - I believe same as now, but even if it's changed, the same content I believe was there. Do check your own COPR.

 

[joe zhao]

I believe that IRCC will take the position that 'time of the application' will include the entire period up and until the point when you 'landed' and became a PR. Being issued the (immigrant) visa may mean 'approved' but it does not mean the process is complete. And submitting the initial application certainly doesn't, either.

I believe if you look carefully at the documentation you received together with the visa (the explanatory docs, the COPR, etc), the proviso or caveat was repeated multiple times that you MUST advise IRCC if your family composition changes. The COPR contains a signature block where you attest (swear) that the information above is correct, which includes (of course) your immediate family members).

This was NOT your only choice. Your choices included following the instructions provided, that you were to contact and advise IRCC immediately if your family composition changes. (If you'd done so, they almost certainly would have extended your visa/copr validity or issued new ones, after your child had had medical check, etc).

IRCC will take the position that documentation provided to you made the points above clear, and that you have an obligation to read and understand.

"Landing" (or first landing) is the point at which one becomes a permanent resident, i.e. when (in your case) you arrived in Canada on your flight and completed the admin procedures with the passport/border officer (call it the administrative 'landing' if you wish). That's when the application to become a PR can be considered complete.

As noted, you'll need a lawyer if you wish to attempt to do anything about this - and the chances are not good.

Thanks, Amoured
Yes, there are less chances, as the IRCC does not strictly adhere to the content of the Act. If it arbitrarily expands its interpretation of the Act using its own power, there is no fairness and justice.
The visa officer's interpretation of the regulations made me feel like he was blurring the lines, playing hide-and-seek.

 

[Naturgrl]

Thanks, Amoured
Yes, there are less chances, as the IRCC does not strictly adhere to the content of the Act. If it arbitrarily expands its interpretation of the Act using its own power, there is no fairness and justice.
The visa officer's interpretation of the regulations made me feel like he was blurring the lines, playing hide-and-seek.

How did the officer "blur the lines" or interpret the act though.

9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if

• (d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.

Did you do the medical and add your child before landing or not?

 

[joe zhao]

How did the officer "blur the lines" or interpret the act though.

9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if

• (d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.

Did you do the medical and add your child before landing or not?

In the Visa Officer’s description, the concept of “immigration landing” was introduced, which does not appear in Section 117(9)(d) and was arbitrarily added by the Visa Officer. Although both “immigration application” and “immigration landing” are part of the immigration process, they are sequential and can not be interchangeable.
The Visa Officer stated: “You were not declared...in his immigration process and landing on... as a result you were not examined...in...immigration application.”
This entirely reverses the chronological order of the immigration process and completely disregards the critical fact that my son was not yet
born when the sponsor was in the “immigration application” process.

 

[Naturgrl]

In the Visa Officer’s description, the concept of “immigration landing” was introduced, which does not appear in Section 117(9)(d) and was arbitrarily added by the Visa Officer. Although both “immigration application” and “immigration landing” are part of the immigration process, they are sequential and can not be interchangeable.
The Visa Officer stated: “You were not declared...in his immigration process and landing on... as a result you were not examined...in...immigration application.”
This entirely reverses the chronological order of the immigration process and completely disregards the critical fact that my son was not yet
born when the sponsor was in the “immigration application” process.

So your son wasn't born when you landed or not? Did your infant take the medical before your landed or not? What chronological order. You said you landed after your son was born. As the applicant, you must declare any changes (birth of child) during the application process. Same holds true for marriage, if you get married during the PR process and land without adding your spouse, you can NEVER sponsor your spouse.

Get a lawyer to assist and explain to you the process. Officer said child was not declared during the process and you were supposed to do that. I see no error made by the officer.

 

[armoured]

In the Visa Officer’s description, the concept of “immigration landing” was introduced, which does not appear in Section 117(9)(d) and was arbitrarily added by the Visa Officer. Although both “immigration application” and “immigration landing” are part of the immigration process, they are sequential and can not be interchangeable.
The Visa Officer stated: “You were not declared...in his immigration process and landing on... as a result you were not examined...in...immigration application.”
This entirely reverses the chronological order of the immigration process and completely disregards the critical fact that my son was not yet
born when the sponsor was in the “immigration application” process.

Sorry, but you're just outright wrong.

The application process to become a PR continues until complete. Your application was in process until you became a PR.

If you think your version of English is superior, by all means hire a lawyer to confirm it for you.

 

[joe zhao]

Hi， Naturgrl
The clause specifically uses the clear grammatical structure "comma followed by 'at the time of that application,'" to emphasize the point in time as "application," rather than the immigration application process itself.

 

[Naturgrl]

Hi， Naturgrl
The clause specifically uses the clear grammatical structure "comma followed by 'at the time of that application,'" to emphasize the point in time as "application," rather than the immigration application process itself.

Get a lawyer to fight the comma. It is well known (for years) that you have to declare a child or spouse during the application. The law states you must declare so officer made no error.

The Visa Officer stated: “You were not declared...in his immigration process and landing on... as a result you were not examined...in...immigration application.” You NEVER declared your child at all during the immigration process.

9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if

• (d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.

 

[joe zhao]

Sorry, but you're just outright wrong.

The application process to become a PR continues until complete. Your application was in process until you became a PR.

If you think your version of English is superior, by all means hire a lawyer to confirm it for you.

9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if

• (d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.

The stripe uses commas to separate the process from the time point. The process mentioned before the comma refers to the requirements for the guarantor's qualifications (one is not qualified to be a guarantor if one has not become a PR, which limits the scope of the concept of a guarantor). The part after the comma emphasizes that the judgment basis of the clause is that time point (not the process). In other words, the drafters of the stripe have realized that using the process as the basis for judgment is complicated and unfair, and would lose the essential meaning of setting this clause.

 

[Naturgrl]

9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if

• (d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.

The stripe uses commas to separate the process from the time point. The process mentioned before the comma refers to the requirements for the guarantor's qualifications (one is not qualified to be a guarantor if one has not become a PR, which limits the scope of the concept of a guarantor). The part after the comma emphasizes that the judgment basis of the clause is that time point (not the process). In other words, the drafters of the stripe have realized that using the process as the basis for judgment is complicated and unfair, and would lose the essential meaning of setting this clause.

Get a lawyer to fight the comma. We are not lawyers. No sense arguing on the forum. All the best and hope it works out for you.

 

[joe zhao]

Get a lawyer to fight the comma. It is well known (for years) that you have to declare a child or spouse during the application. The law states you must declare so officer made no error.

The Visa Officer stated: “You were not declared...in his immigration process and landing on... as a result you were not examined...in...immigration application.” You NEVER declared your child at all during the immigration process.

9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if

• (d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.

Why do such clear and explicit Act clause provisions become difficult to understand for the CIRR? I really don't believe their employees lack reading skills.