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Urgent help! Appeal and court date

Discussion in 'Permanent Residence in Canada' started by david_savard, Jul 23, 2019.

  1. Hi,

    Can someone please help us in this situation.

    Long Story short:

    - I am a canadian citizen. and my wife is European (Estonian)
    - My Wife got a DUI in Canada under her tourist visa.
    - We ended up getting what we think is a Deportation Order - IMM 1215 (bad lawyer advice)
    - We left canada and moved to the UK
    - At the airport they made her sign the following form: IMM 0056
    - We applied for Sponsorship from London, it was eventually refused stating that the situation is only short term as she will eventually be able to ask for a pardon.
    - We appealed the decision and ended up finally getting a court date in 2 months.

    My questions:
    Can my wife enter Canada to be present at the hearing?
    Or does she need a ARC (Authorisation to return to canada)?
    If we apply for an ARC, would she get it?
    Can we apply for a TRP and would she get it?

    Is there anything else we can do? any good lawyer suggestions? any ideas? please we are desperate.

    Thank you
  2. IMM 1215 is a deportation order. She cannot return on a simple eTA at this time. She needs to apply for a TRP if she wants to try to attend the hearing. I don't believe an ARC is required at this time (although it eventually will be) since if approved, the TRP will allow her to enter Canada (although I may be wrong about that). You are extremely short on time. Impossible for any of us to say if the TRP approved - also impossible to say how long processing will take (it can easily take many months to get a decision on a TRP application).

    I'm not sure there's any point appealing if she's currently inadmissible. She needs to wait until 5 years have passed from the time of the DIU and then apply for rehabilitation. Once rehab is approved, you can reapply for spousal sponsorship (you'll also need to go through the ARC process then). The appeal may be a waste of time and money.

    Agreed you should be working with a very good immigration lawyer at this point. This is too complicated a situation for free advice on an internet forum. I have never worked with a lawyer and can't provide a recommendation.
  3. I would just like to add that my appeal was WON. Just to provide some hope to people going through the same thing. Get a good lawyer and build a good case. Dont lose hope!
    JBucky likes this.
  4. Can you post the case docket name or reasons so that we can understand them better?
  5. Can you please provide me more details on what "docket name" means so I can provide more information
  6. It will be the name on the written decisions of your case, such as "Smith vs. Minister of Citizenship and Immigration," or if you have a link to the written decisions via something like CanLII, that also works.
  7. You got it it is: My name vs The Minister of Citizenship and Immigration.
    Pretty much we appealed the decision of our sponsorship being refused due to my wife's inadmissibility due to criminality (DUI) and we won.
  8. Are the reasons published? Like, could I find them online? It's very rare for inadmissibility like this to be overcome.
  9. I did not find it either. please let me know if you found the docket# or the case name. that should be interesting
  10. It doesn't appear to be published yet. Where was the case heard? The Immigration Review Board or the Federal Court
  11. I totally sympathize with anyone NOT wanting to share the docket number or citation for their case, or otherwise enough identifying information to find the published decision (if there is one), since that would directly link that individual to some rather personal details typically revealed in those decisions which are published. In fact, this is something regarding which I would offer a recommendation despite my reluctance to offer advice or recommendations, and that recommendation would be to NOT share enough information for participants at a site like this to find the published decision.

    ALSO NOTE: NOT all IAD decisions are published. Far from it actually. I do not know what percentage or what determines which decisions are published versus those which are not. My sense is that many spousal sponsored PR visa appeals are not published (more than a few cases I am personally familiar with were never published).

    Cases that reach the Federal Court, so far as I can discern, are published, or at least usually are published. However, relatively few of these cases reach the FC (those cases which reach the FC tend to involve additional and typically more complex issues).

    It is not difficult to research published IAD decisions regarding FN inadmissibility for driving while impaired convictions at the CanII site: https://www.canlii.org/en/ca/irb/

    It warrants a reminder that the outcome of individual cases, standing alone, rarely illuminates much more than what is POSSIBLE, not what is likely, let alone what will happen in another persons case, EVEN IF it appears to be very similar. Obviously, the more actual cases, especially those reported in official sources (like published IAD or FC decisions), one can review, the more information and insight one can learn about how these situations are handled in the Canadian immigration system.

    In so far as the impact of inadmissibility for offences like driving while impaired, on prospective spousal sponsored PR applicants, generally there are two avenues for obtaining relief:
    -- waiting
    -- -- to when a suspension of the conviction can be obtained, or
    -- -- for the rehabilitation period to pass, or ​
    -- obtaining H&C relief​

    A relatively recent (last year) example of the latter, H&C relief, can be seen in the published IAD decision Mcmahon v Canada (Citizenship and Immigration), 2018 CanLII 138894 (CA IRB), http://canlii.ca/t/hxhcs (these links usually but not always work; a copy and paste of the url should work if link itself fails to work)

    Again, one such decision hardly illuminates much at all about how things will likely go for some other individual. This decision, however, is an example of how H&C reasons can justify "special relief," so that such an individual may be allowed a PR visa despite an offence pursuant to which they are otherwise "inadmissible" and thus not eligible to be granted PR status.
    soheilhs likes this.

  12. I Believe DUI falls under A36 and H&C application with any inadmissibility except for A34,A35 and A37 could be made. That make sense if his lawyer went through h&c.
    k.h.p. likes this.
  13. #13 david_savard, Nov 11, 2019 at 5:58 AM
    Last edited: Nov 11, 2019
    apologies missed a few messaged I was out of town.

    We did go through the H and C. I clicked on that McMahon case and weirdly, the letter we recieved does not include any of the reason, analysis, details.

    All it says is:

    The appeal is allowed. The officer’s decision to refuse a permanent resident visa is set aside, and an officer must continue to process the application in accordance with the reasons of the Immigration Appeal Division.

    It says "Immigration Appeal Division" at the top of the letter we received.

    What more information do you need?

    I am actually wondering about the next steps as well?

  14. From whatever stage the officer stopped working on your sponsorship file and made the decision, he/she now has to keep going. Let say you may failed at the eligibility stage, the officer now has to move forward and assess background check, admissibility, etc.

    Technically there is a chance that on other grounds the officer refuses your case again. but let hope everything goes well
  15. I believe everything was complete, police checks, medicals, we were right at the end and then the inadmissibility due to DUI caused the rejection.

    Our lawyer seems very confident we will be in Canada by end of year.

    I would like to know if I will need to apply for the ARC - authorization to return to Canada - or if we will receive it automatically as part of the application?
    Thank you again!

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