30 days Procedural Fairness letter - Sponsor

[ctfinc123]

I have received in early July my permanent residency via EE. As we did not have enough points to get drawn, we decided to only have myself as the primary applicant at the same time telling CIC about my common law partner, hence her having to do medical tests for my application as well.

She is currently in Canada on a student visa. Immediately after getting my PR approved, we sent off an outland sponsorship application for her. Early August, I had to return to Australia to settle my ties in Australia (I am still currently in Australia). We are quite far into the application, having the sponsor's eligibility passed (initially) and the VO asking for her to do (and is already done) her medical examinations. However, we received an email today from the HK VO:

This refers to your application for permanent residence in Canada. I have now completed my assessment of your application and I have concerns that you do not meet the requirements for immigration to Canada as a member of the family class.

Subsection 12(1) of the Immigration and Refugee Protection Act states that a foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident.

Section 120 of the regulations states that for the purposes of Part 5 of the regulations,

(a) a permanent resident visa shall not be issued to a foreign national who makes an application as a member of the family class or to their accompanying family members unless a sponsorship undertaking in respect of the foreign national and those family members is in effect, and

(b) a foreign national who makes an application as a member of the family class and their accompanying family members shall not become permanent residents unless a sponsorship undertaking in respect of the foreign national and those family members is in effect and the sponsor who gave that undertaking still meets the requirements of section 133 and, if applicable, section 137.

Subsection 133(1)(a) of the regulations states (in part) that a sponsorship application shall only be approved by an officer if, on the day on which the application was filed and from that day until the day a decision is made with respect to the application, there is evidence that the sponsor is a sponsor as described in section 130.

Subsection 130 of the regulations states that

(1) Subject to subsections (2) and (3), a sponsor, for the purpose of sponsoring a foreign national who makes an application for a permanent resident visa as a member of the family class or an application to remain in Canada as a member of the spouse or common-law partner in Canada class under subsection 13(1) of the Act, must be a Canadian citizen or permanent resident who

(a) is at least 18 years of age;
(b) resides in Canada; and
(c) has filed a sponsorship application in respect of a member of the family class or the spouse or common-law partner in Canada class in accordance with section 10.

On the evidence submitted, I have concerns that your sponsor does not reside in Canada and did not do so on the day on which the application was filed and from that day until the day a decision was made in respect to the application. You did not submit any reliable evidence to prove that your sponsor has been residing in Canada since 4 August 2016. I, therefore, have concerns that he/she does not meet the requirements of subsection 130(1)(b) of the Regulations. As a result, I have concerns that you do not meet the requirements of section 120 of the Regulations.

I would like to give you an opportunity to respond to this information.

Here's our situation:

• I returned to Australia in early August to hand in my resignation letter and to serve my 13 weeks worth of notice stated in my employment contract. Given the nature of the business and the complexity of my role at work, I have a rather long notice time to perform my handover duties.
• I have a copy of my resignation letter.
• I have a copy of the resignation acknowledgement
• I have listed my property in Australia for sale
• I have a ticket back to Canada late next week (November)

I am also basing off the residency tax criteria from the CRA (Determining your residency status), having strong ties in Canada:

• SIN number
• Vehicle under my name (common-law does not know how to drive)
• A pre-sale purchase slated to complete in December
• A 12 month tenancy agreement commenced in July 2016
• When I was in Vancouver in July, the staff at icbc mentioned I should wait to my next arrival in November to apply for a full license when I am able to get a copy of my driving records in Australia

I am absolutely worried at this point. Has anyone been in a similar situation? Does anyone have any pointers in how to construct the letter? Is an immigration lawyer recommended?

Thanks in Advance.

 

[scylla]

The problem is that you need to be living in Canada in order to sponsor your partner for PR - only citizens are allowed to be outside of Canada while sponsoring. You've been outside of Canada for far too long at this point. Typically CIC is OK with trips outside of Canada of 2-3 weeks. You've been out for around three months.

I would return to Canada asap and then send proof that you are back in Canada. It's not so much about ties to Canada as it is that you have to be physically in Canada to qualify to sponosor.

It's quite possible your application may be refused due to non-residency. But worth a try...

 

[ctfinc123]

Yes, my planned return to Canada is later next week. I had no option but to go to Australia due to the contractual binding between me and the company I work for, I even went to depths as to looking for what defines legally as "reside".

A quote from justice.ca:

In family law cases the reference was more often to "ordinary residence" than residence simpliciter. In the common law provinces, the courts initially adopted the definition of ordinary residence that had developed under the Income Tax Act[16]. "Residence" in contrast to "presence" involves a settled and enduring connection between a person and a place[17]. Residence is treated primarily as a factual conclusion and not, like domicile, an idea of law[18].

There definitely is a sizable chance they may refuse me due to non-residency, but I am wondering what approach I should take in regards to the letter we will submit.

When my PR visa was granted, I was actually in Canada on a visitor visa, hence I haven't had the chance to return to Australia to sell off my property and terminate my job.

 

[scylla]

The "reside" law you're quoting is a CRA (tax) law. No relevance unfortunately to immigration and CIC. Different rules for immigration/CIC.

You should have waited to submit the application until you were back permanently in November. That would have been ideal.

Anyway - not much you can do at this point but return to Canada, send proof you are back and hope for the best.

 

[profiler]

My $0.05 here is that scylla is right. Unfortunately, as a PR you must reside in Canada the whole time they process the application. They will tolerate short trips, but not the duration of time you have spent out of the country.

There is no point in hiring an immigration lawyer, because the Procedural Fairness letter is them basically stating they are convinced enough that they are prepared to refuse the application and giving you the last chance to submit any proofs that might change their mind. You can try returning to Canada, providing proof that you did, explain the situation, plead ignorance and tell them you will remain in the country until the application has been completed. Probably won't work, but at this point it's really all you can do.

 

[ctfinc123]

Thank you guys for the help.

Any more pointers would be great.

 

[methyl]

I would suggest to create a letter with strong and clear arguments proving that in your case you reside in Canada and are in Australia merely to settle effects, such as dispose of property, transfer knowledge to others at your employer's. To make sure that is done properly takes time, so you need to justify why that takes as long as it does.
What constitutes residing vs visiting is obviously going to have subjective elements, but if you have strong reasons then perhaps you can convince our bureaucrats, so make sure this letter is written really well. I would not put emphasis on the fact that you had to "work" in Australia due to contracts as that does fit in well with "visiting". Put more emphasis on finalizing everything.

 

[ctfinc123]

Thanks, very good point you have there.

 

[canadianwoman]

Send in a letter of explanation, as noted above, with proof of your ties to Canada.
This may not work, but there is nothing else you can do at this point.

If it is refused, then you can reapply right away (provided you are in Canada, and intend to stay in Canada for the duration of processing.) I would not bother appealing - a refusal is probably going to be seen as the correct decision by the Immigration Appeal Board or a judge.

The decision whether someone is residing in Canada for tax purposes depends on different criteria than that used by CIC.