Planning to take RISK of sponsoring my kid when RO not fully met

[GRV]

Hi Guys,
Hope all are fit and fine in wherever they are.

Well, this is in regard with my case (opened this new thread for a fresh perspective) earlier on coming to Canada on not meeting RO with my kid born outside Canada.

Just a brief: I got questioned at PoE and IO wrote in my passport "Away since 2011" and gave my kid expiry date of her TRV till June 2016 (which is the same expiry date of our PR cards). IO also told she's penning some notes down in the system and that I should apply/sponsor my kid PR asap.

I understand the views of people here and also, I met few lawyers here as well. The lawyers (all 3 whom i met) advised to go for the sponsorship of my kid's PR and if something negative happens we can appeal based on the H&C grounds. One lawyer also told me about something called as "Procedural fairness" on which you have the right to sponsor your kid.

My Thought process:
1. I know that's a big risk to sponsor my kid when I am not meeting the RO. It would trigger my RO thing and in worst case we could be sent back to our home country.
2. Going for the Extension of visitor visa scenario means if TRV extn. not granted, then separation from my wife & kid for more than 2 years. And even after that no surety whether they would be granted the PR again or not. More days of separation.

Also, I know some of you must be ready to bash me up for not understanding the implications as this has been so many times mentioned on the forum ( to stay put for 2 years ....)
But I think if you have case on your hands and if you believe what you're doing is not wrong so should better go for it.
Thus, I am getting more inclined towards sponsoring my kid.

So i would request you guys to help me on how to fill up the application myself and how to carefully word up in the letter of explanation.
Pls Leon, PMM, Msafiri & other generous souls its a request to help me out with this. I would really appreciate your help & support in building up the appl. kit.

Look forward to hearing from you.

Thx,
GRV

 

[ramkris]

when did you last enter canada. another option is let pr card expireand afteryou fulfill 730 days apply for emergency pr card mentioning you are going to travel you may get card faster than usual.then sponsor your kid. you cant apply for kid inland

 

[nadia601]

This is too personal, If I were you, I would send the kids and their mom to home country , and you stay here in Canada alone. When you are 100% sure you have more than 730 days, you can sponsor them including your wife .

 

[Leon]

Just so you know, when you sponsor your kid without meeting the RO, this will likely happen

1) they will see on your application that you don't meet the RO yourself

2) they will call you in for an interview to let you explain why they should let you keep your PR

3) if you have no H&C grounds for not meeting the RO, they can revoke your PR and cancel your sponsorship application and request that you leave Canada

If you want to take this risk, it's up to you. Here are the application forms you need: http://www.cic.gc.ca/english/information/applications/fc.asp

 

[dpenabill]

. . . I met few lawyers here as well. The lawyers (all 3 whom i met) advised to go for the sponsorship of my kid's PR and if something negative happens we can appeal based on the H&C grounds. One lawyer also told me about something called as "Procedural fairness" on which you have the right to sponsor your kid.

"Procedural fairness" does not override the basic requirements of sponsorship, including the eligibility of the sponsor. An inadmissible PR is not eligible to sponsor a family member.

So long as you have not been reported for being in breach of the PR Residency Obligation, you are not inadmissible. So for now, yes, indeed, you are eligible to sponsor a family member.

The trick is you must remain eligible right up until the family member is actually issued the PR visa. And as others have noted, including in other topics addressing your situation, there is a risk that submitting a sponsorship application will trigger an inquiry into your compliance with the PR Residency Obligation. Various factors and circumstances affect the extent of that risk. If IRCC initiates an inquiry into your PR RO compliance, and determines you are in breach, and a 44(1) Report is issued followed by a Departure Order, you are not going to be eligible to sponsor. Procedural fairness means you get to respond, and appeal, and if the Departure Order is upheld, a chance to leave Canada on your own accord without being physically taken into custody and deported. Procedural fairness also means you can pursue other avenues to challenge your deportation. That mostly means a chance to put it off, to in effect stall.

This forum is not a proper venue for offering personal advice. And ordinarily I support taking difficult or complicated cases to a lawyer if you want advice.

The value of the advice you have obtained from lawyers seems, it appears to me, dependent on the strength of your having a H&C case. Any H&C case is a gamble, but a lawyer can review the facts and circumstances and offer an opinion as to whether the H&C case is relatively strong or relatively weak. The extent to which you might want to rely on their opinion would depend to a significant extent on the extent to which the lawyer reviewed the actual facts and circumstances of your situation, and conscientiously assessed the strength of your H&C case.

Observation: Free attorney consultations are generally worth what you paid for them. They are more about soliciting clients than they are about providing substantive advice. There is no client-attorney relationship. There are some exceptions, such as lawyers providing pro bono services.

If you paid for the consultations, and the respective lawyers spent real time getting familiar with the facts and circumstances of your situation, particularly those related to PR RO compliance and the strength of your H&C reasons, the lawyers advice is better than any you will get in a forum like this.

But Leon is right, just the basic information you provide in the application for sponsoring your child, including the child's birth abroad while you have been a PR, as well as your employment history, is very likely to alert IRCC that there is a PR Residency Obligation issue . . . with the inherent risk that will trigger a Residency Determination. If there is a Residency Determination before you are in compliance with the PR RO, the outcome will depend on how strong a case you make that H&C reasons justify your retention of PR status.

No one here can assess the risks for you. You can rely on a lawyer to better assess the risks, but not all lawyers are created equal, and the value of a lawyer's opinion depends in large part on the extent to which the lawyer has taken a close look at the actual facts in your situation.

 

[GRV]

3) if you have no H&C grounds for not meeting the RO, they can revoke your PR and cancel your sponsorship application and request that you leave Canada

Hey Leon, Thanks for your reply. Well, the H&C grounds being (my father's illness & sad demise of my granny) this is what i told to IO & intend to tell if called for the RO interview.
One thing I forgot to ask is, how long does this process will take place and how many times can we appeal if they reject our appl. And during that period will we be able to count these days towards our RO?

Also, I know what I am playing with but separation of 2-3 years is just way too long & the hardest thing for the 3 of us.

But what about IO words' which she mentioned and told me that she's entering it in the system (one of the lawyer was more interested in this & said we can just hope if she tried to help you and entered something in favor of you).

Observation: Free attorney consultations are generally worth what you paid for them. They are more about soliciting clients than they are about providing substantive advice. There is no client-attorney relationship. There are some exceptions, such as lawyers providing pro bono services.

If you paid for the consultations, and the respective lawyers spent real time getting familiar with the facts and circumstances of your situation, particularly those related to PR RO compliance and the strength of your H&C reasons, the lawyers advice is better than any you will get in a forum like this.

I actually paid for 1 consultancy and remaining 2 were free consultancy (reference from frds & relatives) - and all 3 of them opined to go for filing sponsorship.
Also, would be putting forward my case in the "Letter of explanation" and hope for a positive outcome.

DO we have any similar case here where it turned into a positive outcome?

Guys, pls be kind enough in studying my case, I am in a real dilemma.

Thx,
GRV

 

[Leon]

There is or was a woman on here who came to Canada alone in order to sponsor her son (and husband?). She did not yet fulfill the RO by the time she applied to sponsor him. I think they were in Pakistan which had a really long processing time. She did get called in for an interview because of her RO but they were happy to see that she was well settled in Canada, had a job etc. and that she had H&C reasons because they were staying because of the medical condition of her husbands mother. Last I heard, she'd already completed her 2 years in Canada and applied for a PR card so she would be able to visit her son but it was taking a long time and her son's sponsorship was not nearly through yet either.

If you do have H&C grounds, you need to have proof if you get investigated. It can work on an immigration officer that you just say so and they believe you but if you get examined, you better have medical records of your father and a doctors letter stating that you were taking care of him in his illness.

I think the sponsorship is listed as 17 months on the CIC website right now, give or take, and if they want to revoke your PR, you might have one appeal but not more than that. If they don't revoke your PR, they will not refuse your child's sponsorship. Time spent in Canada right now counts towards the RO but if you get reported and have to appeal for your PR, the clock stops ticking and your time after that will only be counted if you win your appeal.

 

[GRV]

Thanks Leon for the reply.

If you do have H&C grounds, you need to have proof if you get investigated. It can work on an immigration officer that you just say so and they believe you but if you get examined, you better have medical records of your father and a doctors letter stating that you were taking care of him in his illness.

I have Doctor prescriptions, Dr reports & few test reports (but not for all the absent years); Also, Did get a letter from the Dr that he handled his case and the type of illness.

I think the sponsorship is listed as 17 months on the CIC website right now, give or take, and if they want to revoke your PR, you might have one appeal but not more than that. If they don't revoke your PR, they will not refuse your child's sponsorship. Time spent in Canada right now counts towards the RO but if you get reported and have to appeal for your PR, the clock stops ticking and your time after that will only be counted if you win your appeal.

So If i apply in March and get the interview call, say in June. So the clock stops ticking from June onwards till the time the decision is made? and this whole process of Sponsor assessment takes place for how many months?

One thing I noticed while reading the guide (enf 23 Loss of permanent resident status) - Refer sec 7.7 Humanitarian and compassionate determinations ->
Note: The best interests of a child directly affected by the determination must also be
considered when assessing humanitarian and compassionate factors; and as a result, may
justify the retention of permanent resident status.

So if I can stress on this point as well; Will this help my case in any way? i.e. in case of a daughter, raising a girl child in our home country is difficult based on the gender biasness & different programs being conducted by home country govt. as a proof of the same? Will this add some weightage to our case?

Thx,
GRV

 

[dpenabill]

One thing I noticed while reading the guide (enf 23 Loss of permanent resident status) - Refer sec 7.7 Humanitarian and compassionate determinations ->
Note: The best interests of a child directly affected by the determination must also be considered when assessing humanitarian and compassionate factors; and as a result, may justify the retention of permanent resident status.

So if I can stress on this point as well; Will this help my case in any way? i.e. in case of a daughter, raising a girl child in our home country is difficult based on the gender biasness & different programs being conducted by home country govt. as a proof of the same? Will this add some weightage to our case?

Overall; short answer:

Is the situation you describe a factor which may be considered: yes, sure, although this is something which would need to be documented.

How much positive weight will it have in the context of your H&C case for retaining PR status, however, is very difficult to assess. As always, many other factors are in play. A key factor is the extent to which the child has a life established in Canada in contrast to the extent to which the child has ties and has lived in the home country. If, for example, this is a child who has only lived in Canada, this factor will probably (not at all certainly) carry more weight. If this is a child with minimal existing ties and experience in Canada, the weight of this factor (again, probably) diminishes.


Explanation and background; longer answer:

Best interests of a child is one of the H&C factors which carries the most weight. And, indeed, when this is a key factor favouring retention of PR status, that alone makes for a very strong case.

But how this factor is assessed is not so simple as many think it would be. For example, that a child will get a better education, have better opportunities in Canada, better health care, and so on, does NOT carry much weight.

The assessment is not akin to a best-interests-of-the-child assessment in a child custody case, for example.

This factor weighs more positively, for example, in the situation where it would result in a separation between a parent and the child . . . such as where the child is a Canadian citizen who has only lived in Canada, has an established life in Canada, and the parent's loss of PR status will result in the child having to leave Canada, in order to be in the custody and care of a parent, to live in a place the child otherwise has no ties to or connection with. If however the child has lived in the parent's home country, the weight of this factor diminishes some, and where the child has predominantly lived abroad that tends to obviate if not eliminate any positive weight this factor might have.

In the abstract it is very difficult to more definitively assess the weight given to even this factor, since so many other facts and circumstances affect how it influences the H&C assessment.

Reminder: the latter is true of almost every factor which can be considered in the H&C analysis. The same particular fact can have a negative, neutral, or positive influence in the H&C assessment depending on how other facts and circumstances affect the assessment in that particular individual's situation.

And this goes both ways. Which is why I often counter declarative statements that this or that is not considered in the H&C assessment; virtually any reason for staying abroad, including financial reasons, is considered, but the problem is trying to forecast what effect this or that particular factor will have, particularly recognizing the interactive influence among the various facts and circumstances. Everything matters. How so, though, varies and is profoundly difficult to forecast.

This is why any H&C case is a gamble, that is any case other than what might be considered a slam-dunk or sure-shot case (example: PR misses the 730 day threshold by a small margin but had bought a home and otherwise established life in Canada, but had to leave for a compelling reason beyond the PR's control and then the return to Canada was delayed due to reasons beyond the PR's control). This is why the consensus among participants here strongly favours waiting (if at all possible) and not doing anything which might trigger a Residency Examination until the PR is at least close to being in compliance with the PR RO, if not waiting until being in complete compliance. Many PRs in breach of the PR RO have mistakenly relied on having H&C reasons only to end up losing their PR status.

As already noted, an experienced and competent immigration lawyer who conscientiously reviews the actual facts and circumstances in your case should be able to offer a fairly reliable assessment, but that is still just an opinion. Since you are familiar with ENF 23, and the particulars of the H&C assessment in a PR RO case as outlined there in section 7.7, you have some important context against which you can compare what the lawyers say and you should have a fair idea of the extent to which you can rely on their opinion . . . again, assuming the lawyer's opinion is based on an assessment of your actual facts and circumstances.

As already noted, as well, not all lawyers are created equal. If you obtained a consultation from Viktor Hohots, for example, know that he was suspended last year for misconduct in a failure to properly handle a large number of refugee/immigration cases, and the surprising thing is that he was only suspended for a relatively short period of time given the extent to which he is alleged to have detrimentally affected the lives of thousands of clients.

 

[GRV]

Thanks dpenabill for the long & informative reply. Appreciate your help.

Also, I had a discussion with another lawyer referred by one of my friends and this lawyer seems to have dealt with similar cases. He offered to give the first consultancy free based on the reference.

What he suggested is, "Just stay put for 2 years, As for your child, you cannot sponsor children in Canada. Children must file humanitarian applications for PR. So try to apply for the TRV extension and just pray you get it, if not then also its fine even if your child is out of status post the trv expiry date. We can file for her PR on humanitarian grds once you guys renew ur PR after 2 years. He said that your child cannot be removed without her parents been given a removal order. So if you dont come in contact with CIC before renewal, u shd be fine.

Any suggestions here Leon, dpenabill or others? is it possible for my child to stay here if she doesn't get the extension? The more i dig, it gets more & more complicated, & confusing, probably need to move with the flow.

 

[Leon]

AFAIK, you can sponsor children outland when they are in Canada on a TRV, same with a spouse. However, it would be wise to wait until you meet the RO.

However, if your child has a TRP, you must sponsor inland with a humanitarian application.

I think your consultant is right that they will not deport a child without the parents. I can not imagine that an overstaying child is a big priority for immigration anyway.

 

[dpenabill]

I agree.

This last lawyer's opinion appears to be more consistent with the general consensus in this forum, including my observations. But of course the extent to which it is based on your actual circumstances is critical.

Mostly, it seems to be the least risky approach.

That said, there are other considerations, like the child's access to health care. (For some, self-insuring health care may be a reasonable gamble; I did it for years, even as a significantly older person, even paying for some surgery out-of-pocket, total costs still way, way less than buying insurance would have cost . . . but I did this for a specific period of years after decades of minimal need for medical care, that is a personal history suggesting I could go a good while more without needing major medical services, and even then I knew it was a big gamble at considerable risk.)

Overall you are the one who needs to assess all your options in consideration of all the facts and circumstances in your situation, and from there navigate as best you can.

The longer you wait, the more established you are in Canada, the lower the risks of a problem.

 

[Leon]

If you have your child with you in Canada on a TRV, you should definitely get some kind of emergency and accident insurance. It's not a big deal if your child has to go to the doctor because of a routine checkup or because of a minor illness that you want to get checked out to make sure it's nothing bad. You can pay for that. The problem is if your child gets sick with something that requires surgery or has an accident and breaks some bones for example. That will involve a hospital and then your bills could be in the thousands. Therefore, better get insurance.

 

[GRV]

AFAIK, you can sponsor children outland when they are in Canada on a TRV, same with a spouse. However, it would be wise to wait until you meet the RO.

Does this mean once we get our PR cards renewed, our child has to first leave Canada (outland) and then one of us from within Canada sponsors her as she's on TRV?

I think your consultant is right that they will not deport a child without the parents. I can not imagine that an overstaying child is a big priority for immigration anyway.

Lets hoping for the best as now plan to go with what this lawyer suggested.

Regarding insurance for child, i, initially, got her a health insurance of 6 months from our home-country. Any suggestions to get it done from within Canada, who all provides these services.

Thx guys once again, this forum is really keeping things going for so many ppz like us.

Thanks

 

[Leon]

Does this mean once we get our PR cards renewed, our child has to first leave Canada (outland) and then one of us from within Canada sponsors her as she's on TRV?
Lets hoping for the best as now plan to go with what this lawyer suggested.

Regarding insurance for child, i, initially, got her a health insurance of 6 months from our home-country. Any suggestions to get it done from within Canada, who all provides these services.

Thx guys once again, this forum is really keeping things going for so many ppz like us.

Thanks

No, she doesn't have to leave Canada as per my reply, you can actually sponsor someone outland even if they are in Canada