Family class application. Very confused any help?

[err88]

But my brother was not examined at the time of my fathers application and he was then sponsored a year later :/

 

[err88]

Having looked around I have found out that the regulation that excludes family members who did not undergo the medical examination at the time the sponsor immigrated, only came into place in June 2002. My father was granted PR in March 2002, therefore I should be exempt from this. Although some people have had issues with it, it seems to be there in black and white if I do have any problems :/ I hope!

 

[Karlshammar]

If this took place before the law/regulation took force you should not be affected.

The fact that your brother was approved, in the exact same situation, is certainly a good sign.

Go ahead and apply, and please let us know how things go!

Having looked around I have found out that the regulation that excludes family members who did not undergo the medical examination at the time the sponsor immigrated, only came into place in June 2002. My father was granted PR in March 2002, therefore I should be exempt from this. Although some people have had issues with it, it seems to be there in black and white if I do have any problems :/ I hope!

 

[PMM]

Hi

If this took place before the law/regulation took force you should not be affected.

The fact that your brother was approved, in the exact same situation, is certainly a good sign.

Go ahead and apply, and please let us know how things go!

Nope, you might want to read some rulings from the Immigration Appeal Board

http://tinyurl.com/y86ha26 Landed 99
http://tinyurl.com/yc2kg8n Landed 93
http://tinyurl.com/y85rvse Landed 93

PMM

 

[Karlshammar]

I looked at all three, and all of them dealt with cases where the dependent was not declared.

This case is one where the dependents were indeed declared, but not medically examined, and it took place before the medical examination requirements came into force.

The cases you posted are not relevant to this situation. Apples and oranges.

Hi

Nope, you might want to read some rulings from the Immigration Appeal Board

http://tinyurl.com/y86ha26 Landed 99
http://tinyurl.com/yc2kg8n Landed 93
http://tinyurl.com/y85rvse Landed 93

PMM

 

[Siouxie]

Under the transitional regulations, you are not excluded from the family class and your father should be able to sponsor you.

A letter from a lawyer stating the regulations should be sufficient for the Visa Officer to give approval!

http://laws.justice.gc.ca/eng/SOR-2002-227/page-1.html see section

Division 8

Non-Accompanying Family Members
Not required to be included

352. A person is not required to include in an application a non-accompanying common-law partner or a non-accompanying child who is not a dependent son or a dependent daughter within the meaning of subsection 2(1) of the former Regulations and is a dependent child as defined in section 2 of these Regulations if the application was made under the former Act before the day on which this section comes into force.

Requirements not applicable

353. If a person has made an application under the former Act before the day on which this section comes into force, the following provisions do not apply to the person in respect of any of their non-accompanying dependent children, referred to in section 352, or their non-accompanying common-law partner:
(a) paragraph 70(1)(e);
(b) subparagraph 72(1)(e)(i); and
(c) paragraph 108(1)(a).

354. If a person makes an application before the day on which this section comes into force, their non-accompanying dependent children, referred to in section 352, and their non-accompanying common-law partner shall not, for the purposes of that application, be considered inadmissible non-accompanying family members, referred to in paragraph 42(a) of the Immigration and Refugee Protection Act, and are not subject to the requirements of paragraph 30(1)(a) or 51(b).
Family members not excluded from family class

355. If a person who made an application under the former Act before June 28, 2002 sponsors a non-accompanying dependent child, referred to in section 352, who makes an application as a member of the family class or the spouse or common-law partner in Canada class, or sponsors a non-accompanying common-law partner who makes such an application, paragraph 117(9)(d) does not apply in respect of that dependent child or common-law partner.
SOR/2004-167, s. 77.



http://www.canlii.org/en/ca/laws/regu/sor-2002-227/latest/sor-2002-227.html#Division_8___Non_Accompanying_Family_Members

Division 8

Non-Accompanying Family Members

Not required to be included

352. A person is not required to include in an application a non-accompanying common-law partner or a non-accompanying child who is not a dependent son or a dependent daughter within the meaning of subsection 2(1) of the former Regulations and is a dependent child as defined in section 2 of these Regulations if the application was made under the former Act before the day on which this section comes into force.

Requirements not applicable

353. If a person has made an application under the former Act before the day on which this section comes into force, the following provisions do not apply to the person in respect of any of their non-accompanying dependent children, referred to in section 352, or their non-accompanying common-law partner:

(a) paragraph 70(1)(e);

(b) subparagraph 72(1)(e)(i); and

(c) paragraph 108(1)(a).

Requirements not applicable

354. If a person makes an application before the day on which this section comes into force, their non-accompanying dependent children, referred to in section 352, and their non-accompanying common-law partner shall not, for the purposes of that application, be considered inadmissible non-accompanying family members, referred to in paragraph 42(a) of the Immigration and Refugee Protection Act, and are not subject to the requirements of paragraph 30(1)(a) or 51(b).

Family members not excluded from family class

355. If a person who made an application under the former Act before June 28, 2002 sponsors a non-accompanying dependent child, referred to in section 352, who makes an application as a member of the family class or the spouse or common-law partner in Canada class, or sponsors a non-accompanying common-law partner who makes such an application, paragraph 117(9)(d) does not apply in respect of that dependent child or common-law partner.

SOR/2004-167, s. 77.

You might also want to read this: http://www.cba.org/cba/cle/pdf/Rubinoff2.pdf

Excluded relationships (9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if ... (d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.

Exception (10) Subject to subsection (11), paragraph (9)(d) does not apply in respect of a foreign national referred to in that paragraph who was not examined because an officer determined that they were not required by the Act or the former Act, as applicable, to be examined.

Paragraph 117(9)(d) excludes from the family class a foreign national where the foreign national was a non-accompanying family member of the sponsor (spouse, common-law partner8 or dependent child and dependent grandchild)9 and was not examined when the sponsor obtained their landing as a permanent resident.

Subsection 117(10) provides an exception to the application of paragraph 117(9)(d), as paragraph 117(9)(d) will not apply to a sponsored foreign national “who was not examined because an officer determined that they were not required by the Act or the former Act, as applicable, to be examined.”

Hope that helps

 

[err88]

Thank you everyone for your help! Will let you know how my application goes

 

[ariell]

I looked at all three, and all of them dealt with cases where the dependent was not declared.

This case is one where the dependents were indeed declared, but not medically examined, and it took place before the medical examination requirements came into force.

The cases you posted are not relevant to this situation. Apples and oranges.

I agree with Karlshammar. In all 3 cases, the applicant did not declare their child when applying for PR and then some time later, applied to sponsor their (undeclared and unexamined) child. That's not the case here. Besides, in the first case, the appeal was allowed!

I definitely think you should still try, err88, and get yourself a good lawyer if you run into problems to fight for you!

 

[err88]

thank you, its a little bit absurd that they would not not allow my application for that reason as it was not in place at that time, as if my dad would know to get a medical for us when it wasnt inforced!

 

[Karlshammar]

I'm no lawyer or immigration consultant, but I'd be willing to bet some money that it won't be a problem for you.

thank you, its a little bit absurd that they would not not allow my application for that reason as it was not in place at that time, as if my dad would know to get a medical for us when it wasnt inforced!

 

[err88]

Hi everyone. I asked someone in my family who is a lawyer about this regulation 117.9(d) business! She said that the regulation does apply to those who applied before 2002, however it does not apply to my situation because I was declared as a dependent on my fathers application, no request for an examination was requested by an immigration officer, and since there was no request for such an examination, subsection (11) of article 117 does not apply to me as we never declined an examination since it was never requested in the first place, and art. 117 (10) is where I fall into.

(9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if

[...]

(d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.


10) Subject to subsection (11), paragraph (9)(d) does not apply in respect of a foreign national referred to in that paragraph who was not examined because an officer determined that they were not required by the Act or the former Act, as applicable, to be examined


(11) Paragraph (9)(d) applies in respect of a foreign national referred to in subsection (10) if an officer determines that, at the time of the application referred to in that paragraph,

(a) the sponsor was informed that the foreign national could be examined and the sponsor was able to make the foreign national available for examination but did not do so or the foreign national did not appear for examination;


So I am obviously very pleased to hear that, and I sent my application off today! Yay! I hope it will be fast!

 

[Karlshammar]

Best of luck, Err88!

 

[PMM]

Hi

Hi everyone. I asked someone in my family who is a lawyer about this regulation 117.9(d) business! She said that the regulation does apply to those who applied before 2002, however it does not apply to my situation because I was declared as a dependent on my fathers application, no request for an examination was requested by an immigration officer, and since there was no request for such an examination, subsection (11) of article 117 does not apply to me as we never declined an examination since it was never requested in the first place, and art. 117 (10) is where I fall into.

(9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if

[...]

(d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.


10) Subject to subsection (11), paragraph (9)(d) does not apply in respect of a foreign national referred to in that paragraph who was not examined because an officer determined that they were not required by the Act or the former Act, as applicable, to be examined


(11) Paragraph (9)(d) applies in respect of a foreign national referred to in subsection (10) if an officer determines that, at the time of the application referred to in that paragraph,

(a) the sponsor was informed that the foreign national could be examined and the sponsor was able to make the foreign national available for examination but did not do so or the foreign national did not appear for examination;


So I am obviously very pleased to hear that, and I sent my application off today! Yay! I hope it will be fast!

Don't be surprised if CIC/CHC if they accepted that you were declared, but not examined will question "dependency"

Immigration Regulations

"dependent child”, in respect of a parent, means a child who
(a) has one of the following relationships with the parent, namely,
(i) is the biological child of the parent, if the child has not been adopted by a person other than the spouse or common-law partner of the parent, or
(ii) is the adopted child of the parent; and
(b) is in one of the following situations of dependency, namely,
(i) is less than 22 years of age and not a spouse or common-law partner,
(ii) has depended substantially on the financial support of the parent since before the age of 22 — or if the child became a spouse or common-law partner before the age of 22, since becoming a spouse or common-law partner — and, since before the age of 22 or since becoming a spouse or common-law partner, as the case may be, has been a student

PMM

 

[toby]

My God this can get complicated.

Some time ago I questioned the need/wisdom of examining family members who had -- at the time -- no intention to come to Canada. It seemed a lot of unnecessary work for the sponsors (to provide background information), the non-accompanying family members (medical etc), and CIC (need to examine people who might never come to Canada).

It was explained to me (I think I have this correct) that residents in Canada sometimes "forgot" to declare "unacceptable" family members, and then might subsequently seek to bring them to Canada.

I did not press the matter, but thought at the time that this could not be the real reason, or else I misunderstood the logic. If all family members who wish to come to Canada must be checked out, then it doesn't matter WHEN they are checked out. So, why not wait until it is clear that the family member wants to come to Canada before taking the time to check him or her out?

If this were the procedure, then perfectly acceptable family members would not be left out in the "cold" just because a careless parent did not happen to declare them way back when. And unacceptable femily members wouldbe screened out at the time they applied for residency.

 

[err88]

(b) is in one of the following situations of dependency, namely,
(i) is less than 22 years of age and not a spouse or common-law partner,
(ii) has depended substantially on the financial support of the parent since before the age of 22 — or if the child became a spouse or common-law partner before the age of 22, since becoming a spouse or common-law partner — and, since before the age of 22 or since becoming a spouse or common-law partner, as the case may be, has been a student


Plus Im a student and have been for many years! My brother was sponsored in the same way as I am being. It may have only been a year after my Dads application but he certainly wasnt dependent on my dad, my parents had been seperated for years.