Thursday, 27 November 2008

Spousal Sponsorship Issues

Filipiniana News -  Rhyme or Reason
14 November 2008

In my immigration law practice, I often refer to spousal sponsorship applications as the “happy files.”  This is mainly because they are fun to put together, entails listening to and articulating the heartwarming love stories of the sponsor and his or her spouse/partner and organizing their various joint documents in the best possible way that will convince the visa officer of the genuineness of the marriage or common-law relationship.  Moreover, they are processed much more quickly than regular immigration applications – often, in a few months from sending the application, the spouse or partner is issued a permanent resident visa and landing documents.

However, I have also been seeing a growing number of not-so-happy stories of refused sponsorships especially in cases where the applications were done by the sponsor and applicant themselves without professional legal assistance.  Although the marriage is  genuine, the parties failed to convince the visa officer of the same either because the facts as they were presented were rather disorganized, conflicting or raised many issues.   I have seen application packages that were done so haphazardly that answers to questions in the forms have conflicted with the information in the other documents submitted.  Or the answers to the questions were either unresponsive or incomplete that reviewing visa officers (who are also humans after all) most likely got annoyed, suspicious, or worse, were led to believe that the marriage or common-law partnership was not genuine and simply entered into for immigration purposes. 

Although there is the right of appeal with the Immigration Appeal Division of the Immigration and Refugee Board for overseas spousal sponsorship applications and Federal Court application for leave and judicial review for all final decisions, these remedies do not guarantee success.  Moreover, the hassle of pursuing such remedies could have been avoided if the application package was properly done at the first opportunity.
 
There is also Regulation 117(9)(d) which has caused grief to many sponsors who realized too late that the spouses or partners they wanted to sponsor cannot be considered a member of the “family class” because the sponsors failed to disclose the spouses’ existence when they applied for permanent residence in Canada.  This regulation effectively provides that if the sponsor failed to declare the spouse in his/her permanent resident application (throughout its processing until the day of landing), he/she will be unable to sponsor the undeclared family member/s because they were not previously examined.  Worse, the sponsor can also be found guilty of misrepresentation which is a ground for inadmissibility and/or revocation of one’s permanent resident status. 

Although there are cases where the sponsor deliberately failed to disclose the spouse or partner to avoid delay in the processing of their application, or to prevent an inadmissibility finding, there are also cases where the failure to disclose was not at all intentional.  In other words, the intent of the regulation which is “to prevent the fraudulent concealment of material circumstances which might prevent the applicant from being admitted to Canada”, may not be applicable.  Unfortunately for those whose “concealment” was not fraudulent or intentional, they too, are often caught by the section 117(9)(d) exclusion. 

For instance, we know that the permanent resident applications of live-in caregivers (after completing two years of full time caregiving work within three years of arrival in Canada) are submitted and processed from within Canada.   While they may truly be unmarried upon submission of their permanent resident applications, a number of them get married in the interim, or while waiting for their PR applications to be processed (which could take several months to a few years).  Upon receiving their PR status during the landing interview at one of the inland CIC offices, it was not made clear that they had to report their change of status.  Often, a curt “please sign here” and “congratulations” are all that is said and the caregiver is left clueless that she has already committed misrepresentation by failing to disclose her new marital status and/or the existence of her spouse. 

The surprise comes when the spousal sponsorship application is subsequently filed and it is eventually refused under section 117(9)(d) of the Immigration and Refugee Protection Regulations.  An appeal is also futile as the IAD does not have jurisdiction to consider humanitarian and compassionate factors if the sponsored person is considered not to be a member of the family class (for not having been disclosed in the sponsor’s permanent resident application).  This is one instance where the law seems particularly harsh but it is the law.  Although visa officers have the discretion to consider humanitarian and compassionate grounds when requested, many of them would rather apply the law strictly in order to “protect the integrity of the immigration system”. 

Since the law is not serving justice in these fundamentally unfair situations, there is a clear need for legal reform.  Although there are admittedly those who try to exploit or abuse the system, a greater number of innocent individuals are prejudiced by the indiscriminate application of technical legal requirements. 

If Canada is truly serious about the immigration objective of family reunification, then this is one area where a visa officer’s judgment should be coupled with a reasonable dose of compassion, rather than a cold-hearted application of the law. 


The author is an immigration lawyer in Toronto and may be reached at mdsantos@osgoode.yorku.ca