tow75 said:
What does "application to leave" mean exactly? I won't have the funds necessary to consult with a lawyer for at least the next week, and both me and my husband will be out of province visiting my parents until the 29th.
Would we be able to leave the country while having this judicial review business in process? At some point we could find the thousands of dollars necessary to pay the lawyer if doing this appeal is so crucial to any sponsorships we might do in the future...but not unless we leave Canada.
You do not need to be in Canada during the process. You do need to have a mailing address in Canada, but you have family here so that's not a problem.
Application FOR leave just means "agreement of the Court to hear our case". The Court does not have to hear your case. You just need to convince them there is at least one potentially reviewable issue. One thing in your favour is that the damage to you (inability to live with your spouse in Canada) is
very serious. You have independent standing yourself to raise potential Charter of Rights issues (I'm reaching here - I haven't done the research) plus any issues that your husband may raise.
tow75 said:
To be honest I can't see what we have left, and why the court would consider the IO to be wrong. At the beginning of the interview she told us that although a decision would be made that day, we wouldn't know about it until later in the week. Then she decided a decision couldn't be made in a day, and now we'll have no idea when we'll hear anything (we do know the package of additional proof arrived this morning).
Because of several things that the IO has refused to consider, such as your husband's situation in Morocco. I haven't done the research required, but I would start looking for cases that are similar (www.canlii.org, look for things like "inland sponsorship refusal" and only court cases). As you look at other cases, you will get a sense of the kinds of arguments the Court finds persuasive. You can discuss procedural issues ("I don't need that extra material/I do need that extra material") as well as proper balancing of evidence and its significance (e.g., the issue about the date of the colour blindness finding - and why it matters at all.)
tow75 said:
In the long term, we can't change the day we got married ( 2 months after my husband lost status) and we can't change what my husband did in school 4 years ago, and when he found out he was colourblind. These things will remain how they are forever, regardless of me leaving everything I have here to be with him, our plans for a big Moroccan wedding with all our families there, apartments/joint bank accounts in Morocco, and any kids we might have 10 years down the road.
The law allows out of status people to be sponsored...so technically, isn't every marriage between a Canadian and an out of status foreigner a marriage of convenience?
Exactly: this tends to suggest that a finding of such without strong evidence is contrary to procedural fairness. The illusion of fairness when it's really just arbitrary is fundamentally wrong, and that's the kind of argument that, properly supported, is supportive of why the Court should hear your case.
For you, this is a sentence of exile. That's a very harsh sanction.
tow75 said:
Other than supplying all the proof about how genuine our relationship is and our plans for the future, how can we prove that we married for love? How can we prove that my husband came here to study, messed it up, met me, then decided to stay for love? I don't think there's a way. When I asked the IO what proof she wants yesterday she said, "I'll leave that up for you to decide"
Actually, if you go to Court you'll be arguing about
how the IO evaluated that evidence. Either the decision was unreasonable, the manner in which the evidence was evaluated was unreasonable or the process is somehow flawed. You can also argue against the law itself (the point of Charter arguments).
The decision on the evidence is based upon whether or not the decision of the IO is reasonable. This gives broad latitude to the IO.
The decision on procedure is based upon "correctness" which is a much more difficult standard. Charter arguments are evaluated via high scrutiny as well, but the exact level of scrutiny can vary based upon circumstances.
For example, you could argue that her emphasis on his colour blindness violates the equal protection (S 15) clause of the Charter. Don't get me wrong - I think that's not a great argument based upon what you've said thus far, but it points out the type of argument one can raise. In your case, I might point out that the IOs decision essentially violates your right to live in Canada - effectively forcing you to move to Morocco to live with your husband. I've not seen that argument made, but it's an intriguing idea.
tow75 said:
If doing an appeal would involve us waiting around here for months on end, frantically checking our emails and watching our mail slot on the door, I can't ask my husband to do that. It would be a selfish decision on my part...he's stayed so long for me, and even when he's wanted to go back to Morocco so many times he's let me persuade him to stay here. We're so tired now...we both feel like we've aged 60 years in this process, all the joy has gone out of our lives..we need to live like a normal couple and do the things we've always wanted to do.
Actually, most of this is done via FAX, though it can be done by mail. I use a fax-to-email service (so you can pick a Canadian fax number and then wait for things to show up). But once you start this process it moves very quickly for the first 3 months, and then you wait. But this would at least buy you some time to consult with an attorney - at a cost of $50.
tow75 said:
The IO called me very irritated today because people keep calling her number, which she gave us after the interview. My husband's mother called her this morning, and my neighbour called her (we thought it would help because he's 42 and very convincing) but she was very rude to him and said if she needed him she'll call. She's deciding our lives here, and our friends who care about us are trying to fight for us, they're all shocked. Is it that odd to her that we're emotional, and we're putting up a fight?
Actually, that's interesting as well. Her refusal to talk to people supportive of your case could be presented in your affidavit (normally filed with the perfected application) and argued as being indicative of bias and/or procedural failure.
I know it sucks, but I wouldn't give in without a fight. I will see what I can learn from reading CanLii over the next little while for similar cases.
Also, you may want to search for your IO's name on CanLii. It's possible the officer's decisions have been challenged before and THAT can also be insightful.
