hopeless situation but hoping for some help

[Rob_TO]

Regarding appeal rights with INLAND sponsorship: http://www.cic.gc.ca/English/resources/manuals/ip/ip02-eng.pdf

5.38. No appeal rights
Sponsors of applicants seeking to remain in Canada do not have a right of appeal to the IAD. This includes:
• Members of the Spouse or common-law partner in Canada class;

And for judicial review: http://www.cic.gc.ca/english/resources/manuals/enf/enf09-eng.pdf

5.2. Distinction between an appeal and judicial review
The IRPA provides two levels of review of decisions made under the Act: review by way of
statutory appeal to the IAD and review by the Federal Court.

Pursuant to section A63 (as limited by section A64) sponsors, visa holders, permanent residents
and protected persons have a right to appeal adverse decisions to the IAD. Included in these
provisions is the Minister of PSEP’s right to appeal to the IAD a decision made by the Immigration
Division (ID) at an admissibility hearing [A63(5)].

In all other cases, where no statutory right of appeal exists or those rights have been exhausted,
there is a right to seek judicial review of any decision made pursuant to the IRPA by filing an
application for leave and judicial review to the Federal Court pursuant to A72(1).

In the case of applications for judicial review, the powers of the Federal Court are defined in
section 18.1(3) of the Federal Courts Act and are explained herein.

 

[mrcanada]

Regarding appeal rights with INLAND sponsorship: http://www.cic.gc.ca/English/resources/manuals/ip/ip02-eng.pdf

5.38. No appeal rights
Sponsors of applicants seeking to remain in Canada do not have a right of appeal to the IAD. This includes:
• Members of the Spouse or common-law partner in Canada class;

But you have a right to judicial review. I know there is no appeal.

 

[mrcanada]

Can someone please answer this?

When I send my PR application together with my OWP, they will refuse the OWP straight away even though my PR application hasn't been refused yet.

I'm just trying to understand this. I really want to do everything the proper way because my wife has to be in Canada due to various reasons including her sick mother. We are just trying to decide what's the best way to go around it that would allow me to work.

 

[Rob_TO]

But you have a right to judicial review. I know there is no appeal.

Yes but from what I understand a judicial review is to challenge a factual error made by the visa officer. As long as a visa officer followed proper protocol, I don't see how a judicial review would be successful. Perhaps others have more insight into what a judicial review can really accomplish compared to an appeal.

I also updated my above post, to show that judicial reviews are allowed under inland sponsorship as you said.

When I send my PR application together with my OWP, they will refuse the OWP straight away even though my PR application hasn't been refused yet.

Are you actually in Canada now? If so then only way to know this, is to try it and see what happens. There is a possibility CPC-Mississauga/Vegreville will process OWPs along with inland PR apps before any criminality checks or any real analysis is done on the PR application. This would be under an assumption that CBSA already screened you to enter Canada. In this case you would get OWP, but after they determine applicant is ineligible due to pending criminal case in progress, I assume the OWP would be revoked.

Or perhaps CIC will review the basic criminal check before issuing the OWP, I'm really not sure and I can't see any specific rules that would explain how CIC will actually do this.

Note if you are currently outside Canada, you may run into issues when trying enter with an active criminal case against you in another country.

 

[Ponga]

Can someone please answer this?

When I send my PR application together with my OWP, they will refuse the OWP straight away even though my PR application hasn't been refused yet.

I'm just trying to understand this. I really want to do everything the proper way because my wife has to be in Canada due to various reasons including her sick mother. We are just trying to decide what's the best way to go around it that would allow me to work.

Technically...you are eligible for the OWP as soon as CIC receives the Inland application, as long as you have legal status in Canada.
Even though it sounds like you may be deemed inadmissible to Canada (even though you're already here), that probably wouldn't prevent you from getting the OWP under the CIC Pilot Program announced this past December. However, this would likely be a short-term fix, since it's unclear if you will be approved for PR with your pending legal matter.

Good luck!

 

[mrcanada]

thanks everyone. If anyone else would like to share, please do.

 

[BChome]

So you are saying when I send my PR application together with my OWP, they will refuse the OWP straight away even though my PR application hasn't been refused yet. I'm just trying to understand this.

I'm not in Canada (my situation meant that I had to return to UK to continue my PR application from here, but hopefully I'll be going home soon!)
I don't think you've got much hope of applying for an OWP if you have a pending court appearance sorry. You will be deemed criminally inadmissible even if you haven't been convicted yet. Being criminally inadmissible is an automatic refusal for all applications irrelevant of having a PR in process or not. Your PR will also be automatically refused if you're deemed criminally inadmissible, hence the need for a H&C if you fit the criteria.
As far as I'm aware a TRP will be your only option, as stated on CIC website. However they are very difficult to get. There have to be very good reasons for them to issue one. But please do check all of this out with a specialist lawyer; it is a very complex, difficult area without standard guidelines to follow, so getting expert advice is highly recommended. Most immigration lawyers will be out of their depth with this type of case, so chose wisely, make sure you read up on their previous cases before retaining anyone. It is very easy for an immigration lawyer to tell you that they know what they're doing and take $300 an hour, when in fact they'll be learning on the job with a case like this. I can't emphasise this enough... I wasted $$$$$'s on inexperienced and consequently incompetent lawyers that told me they knew what they were doing when in fact they didn't have a clue.
When I suggested that you submit a TRP application with your PR (and H&C submission), it would basically mean that there is a possibility of enabling you to be in Canada while your PR is in process. The PR and H&C will take an age to process if its deemed complex (18 months in my case) but a TRP application can be turned around relatively quickly. So in theory, if its approved, you can be in Canada while waiting on your PR to be processed. Its got to be worth a try..
If you don't send both applications at the same time, then I suggest making sure that both PR and TRP have a full copy of the one that's not being sent included as a reference. The reasons that you would be applying for both are integral to each other Don't expect the different departments within CIC to share information with each other. Make sure that all details are included in both applications, don't leave anything to chance and don't presume CIC will use regular logic when looking at your applications. Make sure all bases are covered, you don't want to be asked to send repeat documentation to a different department 6 months after you've already provided it! This happens, I know, I had to deal with it..
RE the right to appeal, I'm not sure of the details but this is one of the reasons that I submitted mine outland (even though it takes longer), just in case I need to appeal...
Also a judicial review is submitted to the federal or supreme court in Canada and is NOT associated with an internal CIC appeal. This is possible with refused inland apps, in fact it is your only chance because there is no right to appeal with CIC. Judicial Review is a very lengthily and very expensive procedure, it really is a last resort. I'd explore all other areas before committing to this one. BTW you can submit a H&C to be reconciled with a PR application that has previously been sent. The same applies for a TRP. Just make sure that each application has the details of the others.
However, prior to an official appeal, the first step if your PR is refused is to send a letter of reconsideration to the program manager of the VO that has processed your file. This is a long shot and most are rejected... but not all, and it can provide another shred of hope!
Message me if you want the contact details of some reputable appeal lawyers in Toronto, most of them also deal with complex PR applications too. The few contacts I have all have human rights backgrounds and supposedly are in the game for the right reasons ie they have a conscience and what to help ease some of the injustices within the immigration system! Plus they are a very high success rate, and all came recommended to me... Hopefully I won't need them to submit an appeal for me t(or you!), still hoping for a positive decision!

 

[BChome]

Just to give you a bit of background on my case and the uphill, but not impossible, struggle you face..
I had been living and working in Canada for nearly 6 years, with partner, children, house, jobs, my entire life.
I got a DUI in Jan 2010... I had my work permit revoked immediately and was issued a TRP so I could remain in Canada until my court date in April 2012.
I stupidly plead guilty in court (bad lawyer advice 1) and was immediately issued a removal order. This was my first and only ever offence, there were no other charges associated with it and I was only marginally over the limit when I was stopped (2 Gin and tonics!).
I submitted my spousal PR application to London (outland, in case I needed to appeal). I also submitted another TRP application to Vegreville asking to be able to stay with my family while my PR was in process.
My PR application shows that I was well established and active within my community in Canada, I had over 100 letters of reference including letters from the mayor, doctors, church, bankers and many other respected professionals and business owners. I actively contributed to many charities, instigated various fundraising events and sat on the board of directors of a local society. I had/have open job offers at management level as a specialist biologist. I am well qualified, well educated, financially secure, speak English and some French (my partner is from Quebec), well established in Canada; basically on the face of it you'd think that I'd be a good candidate, apart from my single offence.
But no... I subsequently had 3 inland TRP's refused, all because of my criminality, and was deported to the UK in May 2014. (By this point I'd added a H&C to my PR application on the advice of a senior immigration official that had written my PRRA report prior to my deportation).
On arrival back in the UK I submitted another TRP (and ARC needed because of the removal order) to London, again asking to be able to return to family and life in BC while waiting for my PR to be processed. London lost this application (and my British passport for 5 months), but in theory it should have been processed within about 3 months if they hadn't lost it.
I am not able to apply for actual rehabilitation until April 2018, but submitted a rehabilitation application 'for information only' when I submitted my PR.
My PR finally went into process in Oct 2014 and Decision Made on Feb 9 (fingers crossed its the right decision!), they have taken my RPRF and TRP fee so I don't know whether I'll be issued a TRP so I can be with my family until I'm officially 'rehabilitated' and then become a PR, or whether the H&C will overcome my inadmissibility and they'll just give me my PR (I hope so!) or whether they'll deny both and just say 'no we don't want you in Canada, you're a criminal', irrelevant of the fact that I have nothing here in the UK and my home and family are in BC...?
Who knows with CIC, and some days I feel optimistic and that I'll be getting good news and that I've got a strong case (really I'm not a bad person, and I wish CIC would look at the good as well as my one stupid mistake) and other days I feel utterly wretched and hopeless and that CIC are just torturing me and my family. The last few years really have been incredibly difficult. The uncertainty, lack of information and 'not knowing' have been so difficult to cope with.
Today is a good day (even though the postman still didn't bring me any news!)... but I'm telling you all of this just to illustrate how difficult this could be... difficult, but not impossible.. I will not stop fighting until I get home, I don't have a back up plan so its got to work!
In your case, get the charges dropped if possible, or/and find out whether a retrial after so much time has elapsed after an acquittal is legal in Canada.. either of these outcomes would totally sort you out as you would no longer be deemed inadmissible and your applications would smoothly run through CIC's system the same as 80% of other cases.
I think a work permit is wishful thinking sorry... but try if you like, all they can do is say no, and they might say yes, so there's nothing to loose at this point.. all applications will ask about pending court dates unfortunately.
I totally sympathise with your situation but don't give up hope... the fact that your wife has family in Canada will help strengthen your case and adds to H&C consideration..

 

[screech339]

I don't think this is true, there is a judicial review, that's like an appeal. I spoke to couple of lawyers and they have all confirmed this.

Judicial reviews are only available if it is proven that CIC made a serious error themselves and you have to prove this to the judge to back this up. This forces the case to go before judge to determine whether CIC did in fact made the error and reverse the decision if it's true. If the applicant is the one that made the error, Judical review will not be granted.

 

[mrcanada]

I guess if our inland application is refused, we can try outland once my case is resolved. I'm certain that there won't be a conviction.

I'm just more concerned about not being able to work while waiting.

TO BChome, thanks for your advice, I'll consider carefully everything that you wrote. If you don't mind sending me a name of a lawyer.

 

[BChome]

Judicial reviews are only available if it is proven that CIC made a serious error themselves and you have to prove this to the judge to back this up. This forces the case to go before judge to determine whether CIC did in fact made the error and reverse the decision if it's true. If the applicant is the one that made the error, Judical review will not be granted.

Yep, this right. You have to prove that CIC have made an error in processing your case based on the information that you have provided to them. This could be not giving full consideration to the facts presented to them, or them misinterpreting the application of the law. If you are able to prove this, then submitting a letter of reconsideration to the program manager of the visa office that processing your case may prevent the necessity of a judicial review.

I'll send a message to your inbox with a few lawyers numbers, all have experience with presenting immigration cases at Federal and supreme court.