Appeal decision on H and C grounds?

[AS18]

Good morning, could someone please give me advice regarding a family class appeal? My mother tried to sponsor my grandfather in 2016 but she was rejected because our family's income was below LICO. However, my father works as a contractor and was making more money but it did not show up on the personal returns since he did not pay himself a salary. My mother also was receiving stipend as a graduate student of nearly 40k a year, which would have resulted in our exceeding LICO. I am 21 and am unsure whether I would still be counted in the family income requirements now - I saw a case where that meant that I would not longer be counted. The year that LICO was not met - 2013 was under by 1500 $.

My grandfather is 82 and a widower - my grandmother died in 2014. He has been staying with us on visitor visa regularly and returning to visit India to get the visa renewed. My mother is an only child and any immediate relatives in the area are also in advanced ages and in little position to assist him in India. He is emotionally very close to my mother and our family and relies on us. While he can perform necessary tasks like shopping etc. he is weaker and we prefer to be there to monitor and assist him. He also owns a business property, has cash assets, and also a residential property in India, all of which could be liquidated.

We were hoping to appeal on H and C grounds but I'm not sure how that would work? Does that mean we file another application with H and C, or do we just submit an appeal relying on these circumstances? Additionally, is it possible to get an extension for the appeal date? I spoke to a lawyer who said that was possible but she did not seem very reliable.

Thank you!

 

[scylla]

H&C approval rates are quite low - but you can certainly try. The fact your mother is an only child and your grandfather is widowed will work in his favour.

The sponsorship application was correctly refused based on the information you have provided.. Only income your father pays himself can be included in the LICO calculation. You would be included in the LICO calculation until you're 22.

What do you mean by an extension on the appeal date? Do you mean the initial appeal filing or a hearing or something else? Note that you cannot appeal and file for H&C at the same time. You can only do one.

 

[Rob_TO]

We were hoping to appeal on H and C grounds but I'm not sure how that would work? Does that mean we file another application with H and C, or do we just submit an appeal relying on these circumstances? Additionally, is it possible to get an extension for the appeal date? I spoke to a lawyer who said that was possible but she did not seem very reliable.

You must file to appeal the rejection you already got. There have been some cases over past few years of parents app being rightfully refused for not meeting LICO, but appeals judged allowed the appeal on H&C reasons.

When exactly did they get the notice app was rejected? There is a limited window of time allowed to file an appeal, before the case is permanently closed.

Note that if you choose to take this to appeal, it may take several years just to get the appeal date. Then even if successful, the app is not yet approved it goes back to the visa office for continued processing. So they would probably ask for new medical exam and he would still need to pass that. So overall it could be many more years before his PR was approved if appeal is won. There is no way to request expediting of appeal hearings.

Alternatively if the appeal is lost, then the only way to file a brand new H&C PR app is for your grandfather to be physically inside Canada as a visitor, and stay here during the entire process. H&C apps can take a few years to process, with no guarantee of success. Of course for an elderly person with limited options for private health insurance and no access to Canadian healthcare as a visitor, this could be very expensive if any medical conditions or emergencies arise.

 

[AS18]

And her stipend cannot be added in, right? My mother was thinking that it could but I don't think it can because why would the government want a student to bring in her parents?

I also think it was correctly refused and we have no plans to dispute the refusal but rather appeal for special consideration for humanitarian and compassionate grounds. Those two are different, right - you can appeal and ask for special consideration under H and C (I have seen some cases like https://www.canlii.org/en/ca/irb/doc/2017/2017canlii64607/2017canlii64607.html?searchUrlHash=AAAAAQAecGFyZW50cyBzcG9uc29yc2hpcCBsb3cgaW5jb21lAAAAAAE&resultIndex=10

https://www.canlii.org/en/ca/irb/doc/2017/2017canlii36084/2017canlii36084.html?searchUrlHash=AAAAAQAmcGFyZW50cyBzcG9uc29yc2hpcCBsb3cgaW5jb21lIGN1dC1vZmYAAAAAAQ&resultIndex=9

Where that was done. An application directly for H and C is different, right?

I was hoping to get some extra time on the appeal filing - we got the decision at my grandfather's email that no one checks and I only learned about it a few days ago when I came home from school. My mom was thinking of contesting it on financial grounds but I'm quite sure that that is invalid, so I was just thinking of appealing on an H and C basis. We saw a lawyer but she was pretty unhelpful.

Thanks for your insight!

 

[Rob_TO]

To add, here are some successful appeal cases of parents sponsorship. You can read through them and see if any of the points that led to appeal success apply to your case:

https://www.canlii.org/en/ca/irb/doc/2017/2017canlii36084/2017canlii36084.html?searchUrlHash=AAAAAQAmcGFyZW50cyBzcG9uc29yc2hpcCBsb3cgaW5jb21lIGN1dC1vZmYAAAAAAQ&resultIndex=9

https://www.canlii.org/en/ca/irb/doc/2017/2017canlii64607/2017canlii64607.html?searchUrlHash=AAAAAQAecGFyZW50cyBzcG9uc29yc2hpcCBsb3cgaW5jb21lAAAAAAE&resultIndex=10

https://www.canlii.org/en/ca/irb/doc/2009/2009canlii84134/2009canlii84134.html?searchUrlHash=AAAAAQAecGFyZW50cyBzcG9uc29yc2hpcCBsb3cgaW5jb21lAAAAAAE&resultIndex=6

https://www.canlii.org/en/ca/irb/doc/2011/2011canlii90825/2011canlii90825.html?searchUrlHash=AAAAAQAecGFyZW50cyBzcG9uc29yc2hpcCBsb3cgaW5jb21lAAAAAAE&resultIndex=3

 

[Rob_TO]

And her stipend cannot be added in, right? My mother was thinking that it could but I don't think it can because why would the government want a student to bring in her parents?

I also think it was correctly refused and we have no plans to dispute the refusal but rather appeal for special consideration for humanitarian and compassionate grounds. Those two are different, right - you can appeal and ask for special consideration under H and C (I have seen some cases like https://www.canlii.org/en/ca/irb/doc/2017/2017canlii64607/2017canlii64607.html?searchUrlHash=AAAAAQAecGFyZW50cyBzcG9uc29yc2hpcCBsb3cgaW5jb21lAAAAAAE&resultIndex=10

https://www.canlii.org/en/ca/irb/doc/2017/2017canlii36084/2017canlii36084.html?searchUrlHash=AAAAAQAmcGFyZW50cyBzcG9uc29yc2hpcCBsb3cgaW5jb21lIGN1dC1vZmYAAAAAAQ&resultIndex=9

Where that was done. An application directly for H and C is different, right?

I was hoping to get some extra time on the appeal filing - we got the decision at my grandfather's email that no one checks and I only learned about it a few days ago when I came home from school. My mom was thinking of contesting it on financial grounds but I'm quite sure that that is invalid, so I was just thinking of appealing on an H and C basis. We saw a lawyer but she was pretty unhelpful.

I think you also have read the same appeals cases I posted to.

Income can only be counted if it goes in line 150 of tax return. If stipend doesn't go there, it can't be allowed.

And yes there are 2 ways to proceed:
1 - Appeal the current PGP app rejection on H&C grounds. If appeal is won, app will proceed as a PGP app.
2 - Apply with an entirely brand new H&C specific app, however he must be physically inside Canada to do this. https://www.canada.ca/en/immigration-refugees-citizenship/services/application/application-forms-guides/humanitarian-compassionate-considerations.html

You better check the exact date you got letter of rejection, and what the date allowed is to file an appeal. Typically once this date passes, the chance to appeal is permanently closed.

You would also want to hire a competent lawyer experienced with H&C appeals, to assist you.

 

[AS18]

Thank you @Rob_TO for your insight. There is no way to get extra time to prepare the appeal, right? It is due by January 8th but my mother did not see it until December 20th and then didn't tell me about it until yesterday.

You are entirely right that it is complicated but I'm not sure if we have many good options. My mother has finished her studies and will be earning a salary but my father has been working as a contractor again for the last two years (ironically for the government), so again, I do not think we can start afresh with family class sponsorship and this is now even harder with the lottery. I am not sure what we should do with all of this in mind. Is there any way to send additional documents after providing the notice of appeal?

I think I can make a good case for my grandfather being important in giving me (17 years old when he first visited Canada) emotional support after the sudden death of my grandmother, and how his being with my mother was important in reducing her stress and worry about his health so that she could focus on his studies. If he cannot immigrate here then my mother will have to return to India, a country where she has not lived long term in since 2001. My mother would also have a difficult time finding employment in India and our family would be split up since we have purchased a house here and because my father works in India. It will also be hard on me if they moved back since I was raised in North America since I was 4 years of age, received many scholarships etc. and ended up attending a prestigious university in the states and plan on further studying and establishing myself here. I also have some minor health concerns that familial support greatly helps me with.

 

[Rob_TO]

Thank you @Rob_TO for your insight. There is no way to get extra time to prepare the appeal, right? It is due by January 8th but my mother did not see it until December 20th and then didn't tell me about it until yesterday.

You are entirely right that it is complicated but I'm not sure if we have many good options. My mother has finished her studies and will be earning a salary but my father has been working as a contractor again for the last two years (ironically for the government), so again, I do not think we can start afresh with family class sponsorship and this is now even harder with the lottery. I am not sure what we should do with all of this in mind. Is there any way to send additional documents after providing the notice of appeal?

I think I can make a good case for my grandfather being important in giving me (17 years old when he first visited Canada) emotional support after the sudden death of my grandmother, and how his being with my mother was important in reducing her stress and worry about his health so that she could focus on his studies. If he cannot immigrate here then my mother will have to return to India, a country where she has not lived long term in since 2001. My mother would also have a difficult time finding employment in India and our family would be split up since we have purchased a house here and because my father works in India. It will also be hard on me if they moved back since I was raised in North America since I was 4 years of age, received many scholarships etc. and ended up attending a prestigious university in the states and plan on further studying and establishing myself here. I also have some minor health concerns that familial support greatly helps me with.

If you intend to appeal this, then file the intent to appeal immediately. Even if you don't know what to do yet, still file the appeal to keep that option open and you can always cancel it later if needed. But if you let the Jan 8 date pass without doing anything, the case will be closed. I'm not sure if requesting extension to this date is possible, but I highly doubt it.

The initial date of Jan 8 is just for the simple paperwork that tells IRCC you wish to appeal the decision. You don't need to lay out your case at this point, you will have years to do that while waiting for the actual appeal hearing.

 

[AS18]

Thank you Rob_TO ! I appreciate it. So if we file the NoA, how does the court system know to refer to ADR or not? Is there any deadline for the documentation? I am thinking that we can file for the appeal and then wait for the date/build the case. If the hearing date is far off, we can cancel and just apply for H and C. Either way, the document gathering, testimonials etc. will be helpful for the H and C application.

 

[Rob_TO]

Thank you Rob_TO ! I appreciate it. So if we file the NoA, how does the court system know to refer to ADR or not? Is there any deadline for the documentation? I am thinking that we can file for the appeal and then wait for the date/build the case. If the hearing date is far off, we can cancel and just apply for H and C. Either way, the document gathering, testimonials etc. will be helpful for the H and C application.

I'm not sure on appeal details, there is a separate thread on this forum for appeal cases that you might get more specific answers. Or you may want to ask these questions to an appeals lawyer.

Again note for the H&C application if that's the route you end up taking, he must be physically in Canada so this means getting a TRV approved. If he can't get TRV approved, a new H&C app will be impossible to do.

 

[AS18]

Ok, that sounds good, thanks! He has been coming on visitor visas (6 months length) regularly so I think it is possible.