My brothers sponsorship got rejected

[ciako]

I think he filed it with federal court.

 

[computergeek]

Good. That means you have a short time line. Hope the court awards costs because CIC really didn't do their job.

IAD appeals seem to take 1-2 years. Federal court is normally less than a year.

 

[ciako]

Does the federal court cover the lawyer fees if they find CIC made a mistake?

 

[computergeek]

Federal Court does have discretion to award costs. It is not the norm in immigration cases, but it is something that is permitted under the rules - and the case you've described would certainly sound like the most likely candidate I've ever heard about.

No costs shall be awarded to or payable by any party in respect of an application for leave, an application for judicial review or an appeal under these Rules unless the Court, for special reasons, so orders.

http://laws-lois.justice.gc.ca/eng/regulations/SOR-93-22/page-5.html?term=costs#s-22.

So it would require "special reasons" but wanton disregard for the facts would seem to be the kind of basis.

Here's a case where costs were not awarded: http://decisions.fct-cf.gc.ca/en/2006/2006fc49/2006fc49.html

And here is a case where costs were awarded: http://decisions.fct-cf.gc.ca/en/2002/2002fct1154/2002fct1154.html:

The parties made submissions as to costs. I am satisfied that there are special reasons to warrant an award of costs to the applicant. The main error committed by the visa officer was blatant. She failed to follow a common rule dictated by good sense, that is, she did not assess the experience of the applicant as a whole but instead focussed on two handpicked areas of his experience. Although there is no evidence of bad faith, the breach of the duty of fairness during the interview was serious and had adverse consequences on the applicant's application. I strongly disapprove of the unreasonable position and the rigidity manifested by the visa officer. Accordingly, a warning appears necessary. Moreover, the present condemnation in the form of costs should provide the occasion to review, and perhaps modify, certain practices or attitudes, given the fact that the respondent insisted that the visa officer did a fine job. However, I wish to state that I find no cause to personally reproach the respondent's counsel, who did her best to defend the untenable position taken by the visa officer. For all these reasons, I think it appropriate to award costs to the applicant, which shall be assessed pursuant to Column III, Tariff B of the Federal Court Rules, 1998.

As you have described your situation, it would seem you fit into this latter category - ultimately, this is something your attorney will need to request as part of your application (likely when it is granted).

 

[Kollyjoe]

One thing litigation (e.g., a judicial review application) does is forces the program manager to review your case specifically. For example, in virtually every case of mandamus I can find, the original issue has already been resolved by the time the oral hearing is scheduled and that is because CIC get's their butts in gear once your case is subject to litigation. What this suggests to me is that someone has pulled it out of the e-cas system, perhaps because they are

I enjoy this forum, because it,actually gave me all the infos im looking for and geek is so exp

I'm also in the process of filling an appeal to the federal court based on unfairness of the cic officer that rejected my spousal application.
In my own case, i already receive Aip, medical and police certificate completed, sent back to them, but my sponsor and i got into an altercation that resulted in me getting an assault charge!threfore after living togther for almot two years police ask us to separate and not talk to one another until i fight the assault charge successfully,and since then we do communicate but havent been living together and my spousal application has been in process ever since

Like 7 month after, cbsa try to remove me by staying my assault charge before i go for the trial, but i applied to cbsa in person to deffer my removal pendin my result for sponsorship as i was already being told to leave by nov 13 2012.luckily i also got into an accident therefore used it also for evidence but my intention is to take them to federal court if they say no.however with God on my side,i did have an overwhelming evidence to stop thier action if it ever get to FC. Miraculously,cbsa officer in charge of my removal, called me on the phone and said no need to leave pending th result of my spousal applicaton.i was happy.

But something happened afterward.the night i apply for defferal of my removal,a cic officer called me that very evening,asking when i havent been living with my sponsor,i told him since feb but police ask me to stay away from which was againt our will,because acording to her she was trying to scare me with police, when the whole case took another turn.so three days later, cic updated my ecas saying decision made,and i receive a letter saying, by the time i submitted my applicatio they are not satisfied that we have lived together for one year,remember i already have AIP stating i have met the requiremen to apply under thesame said category

,it hasent been up to a year we live together,which is very incorrect and im no longer living with my sponsor which is true but factually incorrect,because police ask me sighed a form 10 saying, i will not go closer her or i could be put in jail.and in nov 3 we both got married as we really missed each other. Remember,i have been sent a letter saying im Eligible to apply for permanent residence.as a result i have an ontario health card.
So what i did was filled a leave through my lawyer to the federal court.my lawyer told me right away that the offier was factually wrong and lacks merit,even though we are not living together that does not indicate a break down in our relationship.matter fact we got married before we even saw thier silly and biased decision.

Plus my attoney completed the entire spousal application himself. As we innitially apply through common law and he used calculator to add everything up iff we met the requirement in the first place or maybe you guys do the math.we have been living together since june2009 and submitted the spousal app in sept 2011,that was the time we sent in the application.and feb 21 we got into an argument that police require us to separate and we got married nov 3 the assault case will be vindicated by nov 29 this month, she is in full support of me 100 percent.

So geek please weigh in on my case. I kinda like your idea.yo seem to have the exp i need.
Thanks
Every other deeply though,non biased advice will also be welcomed.
Thanks

 

[computergeek]

Plus my attoney completed the entire spousal application himself. As we innitially apply through common law and he used calculator to add everything up iff we met the requirement in the first place or maybe you guys do the math.we have been living together since june2009 and submitted the spousal app in sept 2011,that was the time we sent in the application.and feb 21 we got into an argument that police require us to separate and we got married nov 3 the assault case will be vindicated by nov 29 this month, she is in full support of me 100 percent.

First, let me note that I am not an attorney and a case like yours really does require the attention of a qualified and experienced attorney. You've mentioned several things that make your case complex - your pending removal order, your assault charge, the fact you have not been living together, and the complex nature of your relationship.

The problem isn't that you didn't qualify as common-law, the problem is that it is a requirement of the inland spousal sponsorship route that you be living together throughout the application process - including the point at which you are granted permanent residency.

One of the eligibility criteria in R124 is cohabitation with the sponsor in Canada. Documents provided as proof of the relationship should also establish that the spouse or common-law partner and the sponsor are living together. If this is not clear from the evidence available, the CPC-V should request further documents or refer to a CIC for an interview (see sample letter in Appendix F – Invitation to Examination Interview). Persons who are not cohabiting with their sponsor at the time CIC seeks to grant permanent residence (persons who have been removed or who have left Canada voluntarily), are not eligible to be granted permanent esidence in the Spouse or common-law partner class and may apply in the family class (overseas).

Source: IP 8.

By agreeing to not live with your sponsor, you put yourself in a position in which the visa officer concluded your relationship no longer qualified for inland sponsorship. I can see grounds for disagreeing with this characterization, because the separation was temporary in nature, but the decision of the officer does not seem to me to be unreasonable based upon the facts. This essentially means that you would need to argue that the decision is wrong in law, in which case the Judge does not owe any deference to the visa officer's decision. For issues of fact the Court will defer to the judgement of the officer as long as the decision is reasonable in the face of those facts. For issues of law the Court owes no deference to the officer.

I've not researched this, but my first thought would be to start looking at court decisions (canli.org is an excellent search tool for this, better than the Federal Court's own site) to see if you can find similar cases to yours. I'd start by reviewing the requirements that you be living with your spouse because temporary situations in which you are not living together are certainly allowed, and thus one could argue that your separation, while longer than a vacation might be, is still temporary in nature.

Remember also that before the Federal Court you are not allowed to produce new evidence as a general rule. Thus, your marriage ante-dating the decision by the VO is actually not something that the Court would normally consider. This is a review and not a de novo hearing.

If the denial is recent (within the past 30-60 days), you could submit the evidence of your marriage to them and request they reconsider their decision. By doing so, you could then argue to the court that you had presented that information to the VO.

The CIC processing manual is not the law, but it is a guide to how CIC interprets the law. I notice that the "not living together" is described as "persons who have been removed or who have left Canada voluntarily" neither of which apply to you. Thus, there is some interesting area for argument there as well, e.g., that the VO made a decision not in keeping with the CIC processing manuals and thus the decision is not within the range of possible reasonable outcomes.

I do hope you are still working with an attorney, as you have a very complex case and your likelihood of a positive outcome will be much improved if you have a competent advocate.

Good luck!

 

[crassy]

Thank you for that info.I dont know why they think that.I didnt vote for the MP that got elected in my riding, do you think he is gonna help for somebody who didnt vote for him?What kinda details do you want to know?I will answer any questions you have pertinent to this.

S/he doesn't know you didn't vote for her/him. It is also not the way it works. S/he is your representative regardless of if you voted for them. My MP is at the opposite end of the political spectrum from me, I've met him a few times, I've requested assistance from him a few times. He also knows my father on a social level and knows that we do not vote for him.

Why would you even tell your MP if you voted for her/him? It is irrelevant.