Procedural Fairness Letter - concerned we do not meet the requirements

[mattaz70]

I am writing to ask for your help on an issue I am currently having with my immigration application to Canada from Australia. I applied for permanent residence (inland spouse) on March 13, 2019. On September 9, 2019 we received a letter confirming our eligibility requirements to apply for permanent residence.

September 24, 2019, I received my first procedural letter, on October 15, 2019 another procedural letter and on August 24, 2020 I received my third procedural fairness letter requesting custody papers and the declaration from the non-accompanying parent. Immigration are giving me 60 days from the date of the letter to provide this documentation.

The issue that I'm having is that my 16 almost 17 year old daughter has accompanied me and my Canadian husband to Canada to hopefully reside permanently. Her biological father has been absent from her life since she was 3 years old. We were never married and there are no custody papers. There is no law in Australia that requires the sole parent to acquire custody papers.

I have explained in writing to immigration in Mississauga several times already that I do not know her father's whereabouts and that I cannot locate him to have him fill out the form. Now I have been sent another letter requesting custody papers and the form IMM5604 which I am still unable to provide because I do not know her father's whereabouts. He has been an absentee father for 14 years. They don't seem to be accepting this response from me.

I have followed the application instructions to the letter and it states that if you cannot provide these documents then please provide an explanation, to which I have already but this doesn't seem to satisfy the officer handling my case.

The Australian Government requires both parents to approve the child to leave Australia. They issued my daughter her passport based on the fact that they also couldn't contact her father. I gave this information to immigration but again apparently not enough.

They are totally ignoring the letter dated September 9 confirming our eligibility requirements to apply for permanent residence.

This is very stressful on all of us especially now with the COVID virus. Our home life and work has suffered greatly. My daughter is about to start year 11 at school and this situation is quite stressful for her also, which I fear could affect her education and future.

Any help would be appreciated, thank you

 

[armoured]

Have you contacted a lawyer? Strongly suggest you do so. You may need an Australian lawyer involved to buttress your case that you have full and sole legal custody.

 

[scylla]

I am writing to ask for your help on an issue I am currently having with my immigration application to Canada from Australia. I applied for permanent residence (inland spouse) on March 13, 2019. On September 9, 2019 we received a letter confirming our eligibility requirements to apply for permanent residence.

September 24, 2019, I received my first procedural letter, on October 15, 2019 another procedural letter and on August 24, 2020 I received my third procedural fairness letter requesting custody papers and the declaration from the non-accompanying parent. Immigration are giving me 60 days from the date of the letter to provide this documentation.

The issue that I'm having is that my 16 almost 17 year old daughter has accompanied me and my Canadian husband to Canada to hopefully reside permanently. Her biological father has been absent from her life since she was 3 years old. We were never married and there are no custody papers. There is no law in Australia that requires the sole parent to acquire custody papers.

I have explained in writing to immigration in Mississauga several times already that I do not know her father's whereabouts and that I cannot locate him to have him fill out the form. Now I have been sent another letter requesting custody papers and the form IMM5604 which I am still unable to provide because I do not know her father's whereabouts. He has been an absentee father for 14 years. They don't seem to be accepting this response from me.

I have followed the application instructions to the letter and it states that if you cannot provide these documents then please provide an explanation, to which I have already but this doesn't seem to satisfy the officer handling my case.

The Australian Government requires both parents to approve the child to leave Australia. They issued my daughter her passport based on the fact that they also couldn't contact her father. I gave this information to immigration but again apparently not enough.

They are totally ignoring the letter dated September 9 confirming our eligibility requirements to apply for permanent residence.

This is very stressful on all of us especially now with the COVID virus. Our home life and work has suffered greatly. My daughter is about to start year 11 at school and this situation is quite stressful for her also, which I fear could affect her education and future.

Any help would be appreciated, thank you

Have you engaged an Aussie lawyer to help you get sole custody? You mention that the Australian government requires that both parents approve the child to leave Australia. If you were able to get around that rule, presumably the same should be possible for sole custody / sole responsibility. I would definitely engage an Australian family lawyer asap if you haven't done that already. At a minimum, you would want to provide IRCC with a written legal opinion if sole custody / responsibility is really not possible in Australia.

When you provided your earlier explanations to IRCC, exactly what did you give them? Did it include any affidavits or statements from lawyers? It's possible you may have gone far too light on the evidence in your responses so far.

 

[armoured]

A thought that can only be discussed with an immigration lawyer - given child's age (approaching 18), you want to ensure two things.

First, that your child is not separated from you (hopefully unlikely as you are sole parent). Second, that you preserve ability to sponsor her after age 18.

At 18, the custody issue becomes moot, but a PR or citizen can sponsor dependent children up to age 22.

The situation is complex in the time frames since I assume custody processes in Australia may not be quick. Wouldn't even attempt to give advice on how to achieve this.

But in some sense if you preserve the right to sponsor her when she turns 18, you may not be entirely dependent on the custody process and documentation.

Note, there's a host of other questions like her status in Canada in the interim and health care and schooling. Quite complex.

 

[armoured]

A bit more detailed thoughts on this - that doesn't change conclusion you need to be in contact with lawyers, Australia for custody and Canada for immigration - and quickly - to clarify your options.

The first thing to understand is that legal requirements about custody/responsibility between countries are different. IRCC needs to know you are the sole custodian. But some countries - and I think Australia is one of these - focus more on parental responsibility. And one can't normally "give up" one's responsibility, or only in very limited circumstances.

Of course, Australia almost certainly has some process to follow when one parent has simply disappeared. But only an Australian lawyer will know what the process is and how long it will take - but probably not a quick process (although it is possible the determination you could get passport without the father would speed this up). May be additionally complicated by being outside the country.

Since you have short timelines to meet the request for the procedural fairness letter, this is where an immigration lawyer may be able to help. Perhaps there is some way to delay this process (if you think you can get the custody issue resolved before too long). Or if not, you may need to approach differently (lots of options that I wouldn't want to speculate on), keeping in mind the point above, that if the Australian custody process is going to be very long, you can focus on arranging application and timing to sponsor when your child is 18.

There are really important points here - as in generally a spouse with dependent children needs to get that child approved within your PR application (and that spouse can get refused if does not have custody or permission of the other parent). So your application is tied in to resolving your child's situation. (Ideally you would have settled this long ago)

But not a lawyer or expert, you need good professional counsel. Good luck.

 

[mattaz70]

Have you engaged an Aussie lawyer to help you get sole custody? You mention that the Australian government requires that both parents approve the child to leave Australia. If you were able to get around that rule, presumably the same should be possible for sole custody / sole responsibility. I would definitely engage an Australian family lawyer asap if you haven't done that already. At a minimum, you would want to provide IRCC with a written legal opinion if sole custody / responsibility is really not possible in Australia.

When you provided your earlier explanations to IRCC, exactly what did you give them? Did it include any affidavits or statements from lawyers? It's possible you may have gone far too light on the evidence in your responses so far.

Thank you for your reply. I am speaking with a Canadian immigration lawyer in the next couple of days. As for the Aussie lawyer, this has been a bit more difficult trying to get a hold of one in respect of timezone and the covid issue over there. I had however contacted the Passport office again asking if they could write a letter confirming that they couldn't locate the other parent and they have declined saying "A child’s passport application that is approved due to special circumstances is a point in time decision. Generally, attempts are made to contact the the other person with parental responsibility and if that person is unable to be contacted, then the application is submitted to a delegate of the Minister for a decision". The Passport Office is unable to provide any information regarding the current status of the other person with parental responsibility. I also had a notary sign documents from the Child Support Agency in Australia showing that I had 100% care, that notary was also a lawyer, but this information was not enough for IRCC.

My daughter is also on a study permit but only until May 2021. Do you know if the PR is refused in the next couple of months, will she still be able to stay until the end of the study permit and could we maybe extend that too?

 

[armoured]

Unfortunately matching what one bureaucracy or legal system requires in a specific case to what another country/bureaucracy can provide routinely or easily is rarely perfectly smooth.

Lawyer on each end should be able to help define what is needed and 'translate' the requirements. The child support agency angle sounds promising - but unfortunately will come down to what specifically is required. (Perhaps the Child Support Agency has information on what constitutes binding legal sole custody? Should at least be able to point you in the right direction)

My daughter is also on a study permit but only until May 2021. Do you know if the PR is refused in the next couple of months, will she still be able to stay until the end of the study permit and could we maybe extend that too?

Not something I know much about, and a lawyer is better placed to say. But I don't think the current study permit would be invalidated, and there likely is a process (hopefully not too difficult) to extend it.

 

[scylla]

Thank you for your reply. I am speaking with a Canadian immigration lawyer in the next couple of days. As for the Aussie lawyer, this has been a bit more difficult trying to get a hold of one in respect of timezone and the covid issue over there. I had however contacted the Passport office again asking if they could write a letter confirming that they couldn't locate the other parent and they have declined saying "A child’s passport application that is approved due to special circumstances is a point in time decision. Generally, attempts are made to contact the the other person with parental responsibility and if that person is unable to be contacted, then the application is submitted to a delegate of the Minister for a decision". The Passport Office is unable to provide any information regarding the current status of the other person with parental responsibility. I also had a notary sign documents from the Child Support Agency in Australia showing that I had 100% care, that notary was also a lawyer, but this information was not enough for IRCC.

My daughter is also on a study permit but only until May 2021. Do you know if the PR is refused in the next couple of months, will she still be able to stay until the end of the study permit and could we maybe extend that too?

IMO the letter from the passport office doesn't help at all. I really think you need to engage a family lawyer in Australia.

Your daughter is fine to stay in Canada until May 2021 regardless of the outcome of the PR application.

Good luck.