Possible Denial Under Para 117(9) - non declaration of family member

[kleiden]

Good day! I've seen a similar case but considering our circumstances, I'm hoping for a more favorable response. I received this letter from our representative:



Date: November 15, 2012

This is with respect to your application for permanent resident visa as a member of the family class, the class in which you applied.

A preliminary review of your file, based on the information and documentation you have submitted to date, raises concerns that you may not meet the requirements for immigration to Canada.

Subsection 12(1) of the Immigration and Refugee Protection Act states that the foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common law-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident.

Paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations establishes the circumstances under which a person may be excluded from the family Class, notwithstanding their personal relationship to their sponsor. Specially, the Regulation state:

117(9)(d) A foreign national shall not be considered a member of a family class by virtue of their relationship to a sponsor if, 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 non- accompanying family member of the sponsor and was not examined.

Based on the information you have presented to this office, it would appear you fall within the exclusion established by this provision. Specially, it would appear you were not examined when your sponsor applied for the subsequently obtained permanent residence in Canada.

Before an officer proceeds to a final decision, we would like you to offer the opportunity to respond to this concern.

IfYour sponsor can demonstrate that you were declared as a family member and examined at the time of his application for permanent residence, it may be possible to proceed with your application. One of demonstrating that you were declared as a family member would be to provide a copy of your sponsor’s application for permanent residence. If your sponsor does not have personal records, he/she may wish to contact any representative who might have assisted in their application and retained a copy of their file.

Any evidence or submissions which you or your sponsor may wish to submit to this office for consideration is response to the concerns identified above must be received at our office within 45 days of the date of this letter.

At the end of this period, your file will be examined by visa officer. The officer will review your file and will make a decision on the application, taking into consideration all of the facts, circumstances and submissions before him/her. This will, of course, include your response (if any) to the concerns identified above and any additional documentation you have submitted. If you choose not to respond, the officer will make a decision on the basis on the information before him/her.

Please be aware that as a result of the identified exclusion issue, failure to provide any additional submission will likely result in the refusal of your application for permanent residence.

You should send any submission you wish to make to the following address:



Attention: Embassy of Canada

Family Class Section, Code: PrFC-117(9)(d)

Level 6, Tower 2, RCBC Plaza

6819 Ayala Avenue

Makati City 1200

Philippines

We have been living together from January 2009 in UAE before we got married in January 2011. He got his visa August 2009 and got his PR Card April 2010. He applied for immigrant back in 2006 and his agency advised us not to include me in the application since we didn't have proof of us living together or sharing expenses. After he got his PR card and started working in Canada October 2011, we even hired a Canada-based agency to handle our case so it's really frustrating for us that we are spending money on this but still encountering problems.

In UAE, unmarried couples are not allowed to live together or have joint accounts/property so we weren't purposely denying the fact that we were a couple but just that there is no way he could have applied me as common-law partner. We were living in a sharing accomodation with 4 other people and the flat was not registered to us because we were unmarried and there was no way for us to provide any legal document without being questioned by Dubai police. We are at wit's end. We have been living apart since Oct 2011 and he had just visited this November 2012 hoping he can follow-up our application in Manila to no avail.

 

[PMM]

Hi

Good day! I've seen a similar case but considering our circumstances, I'm hoping for a more favorable response. I received this letter from our representative:



Date: November 15, 2012

This is with respect to your application for permanent resident visa as a member of the family class, the class in which you applied.

A preliminary review of your file, based on the information and documentation you have submitted to date, raises concerns that you may not meet the requirements for immigration to Canada.

Subsection 12(1) of the Immigration and Refugee Protection Act states that the foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common law-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident.

Paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations establishes the circumstances under which a person may be excluded from the family Class, notwithstanding their personal relationship to their sponsor. Specially, the Regulation state:

117(9)(d) A foreign national shall not be considered a member of a family class by virtue of their relationship to a sponsor if, 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 non- accompanying family member of the sponsor and was not examined.

Based on the information you have presented to this office, it would appear you fall within the exclusion established by this provision. Specially, it would appear you were not examined when your sponsor applied for the subsequently obtained permanent residence in Canada.

Before an officer proceeds to a final decision, we would like you to offer the opportunity to respond to this concern.

IfYour sponsor can demonstrate that you were declared as a family member and examined at the time of his application for permanent residence, it may be possible to proceed with your application. One of demonstrating that you were declared as a family member would be to provide a copy of your sponsor's application for permanent residence. If your sponsor does not have personal records, he/she may wish to contact any representative who might have assisted in their application and retained a copy of their file.

Any evidence or submissions which you or your sponsor may wish to submit to this office for consideration is response to the concerns identified above must be received at our office within 45 days of the date of this letter.

At the end of this period, your file will be examined by visa officer. The officer will review your file and will make a decision on the application, taking into consideration all of the facts, circumstances and submissions before him/her. This will, of course, include your response (if any) to the concerns identified above and any additional documentation you have submitted. If you choose not to respond, the officer will make a decision on the basis on the information before him/her.

Please be aware that as a result of the identified exclusion issue, failure to provide any additional submission will likely result in the refusal of your application for permanent residence.

You should send any submission you wish to make to the following address:



Attention: Embassy of Canada

Family Class Section, Code: PrFC-117(9)(d)

Level 6, Tower 2, RCBC Plaza

6819 Ayala Avenue

Makati City 1200

Philippines

We have been living together from January 2009 in UAE before we got married in January 2011. He got his visa August 2009 and got his PR Card April 2010. He applied for immigrant back in 2006 and his agency advised us not to include me in the application since we didn't have proof of us living together or sharing expenses. After he got his PR card and started working in Canada October 2011, we even hired a Canada-based agency to handle our case so it's really frustrating for us that we are spending money on this but still encountering problems.

In UAE, unmarried couples are not allowed to live together or have joint accounts/property so we weren't purposely denying the fact that we were a couple but just that there is no way he could have applied me as common-law partner. We were living in a sharing accomodation with 4 other people and the flat was not registered to us because we were unmarried and there was no way for us to provide any legal document without being questioned by Dubai police. We are at wit's end. We have been living apart since Oct 2011 and he had just visited this November 2012 hoping he can follow-up our application in Manila to no avail.

1. It appears that CHC has decided that you and your spouse lived in a Common/law relationship for a year prior to his emigration to Canada. You were not declared nor were you medically examined.
2. So unless you can convince CHC otherwise, the application will be refused as you will be no longer a member of the family class. Your sponsor will have the right of appeal to the IAD, where he will have to convince them that you were not in C/law relationship. (It would appear that you have already told Manila that you were living together) There are no Humanitarian or Compassionate grounds considered if you are found not to member of the family class.
3. If that is so, the you can either apply as a skilled worker or can submit an application under 25(1) Humanitarian and Compassionate grounds.

 

[kleiden]

Hi


1. It appears that CHC has decided that you and your spouse lived in a Common/law relationship for a year prior to his emigration to Canada. You were not declared nor were you medically examined.
2. So unless you can convince CHC otherwise, the application will be refused as you will be no longer a member of the family class. Your sponsor will have the right of appeal to the IAD, where he will have to convince them that you were not in C/law relationship. (It would appear that you have already told Manila that you were living together) There are no Humanitarian or Compassionate grounds considered if you are found not to member of the family class.
3. If that is so, the you can either apply as a skilled worker or can submit an application under 25(1) Humanitarian and Compassionate grounds.

Thanks for the reply. We were not intentionally trying to deny that we lived together but since we were living in a sharing accomodation with 4 other people where we were in separate rooms and I was staying with my sister then we didn't consider this to be applicable as common-law. We did not share sleeping quarters nor expenses. The only thing we shared is the address. Would it be possible for them to consider this? In Dubai, there is no way to prove that we were common-law and even the agency advised us to get married first because of this restriction.

 

[frege]

Thanks for the reply. We were not intentionally trying to deny that we lived together but since we were living in a sharing accomodation with 4 other people where we were in separate rooms and I was staying with my sister then we didn't consider this to be applicable as common-law. We did not share sleeping quarters nor expenses. The only thing we shared is the address. Would it be possible for them to consider this? In Dubai, there is no way to prove that we were common-law and even the agency advised us to get married first because of this restriction.

I think it's important for you to find out exactly what you wrote in your forms, in particular, whether you described this time as a period of "cohabitation".

I suggest you get immediate advice from a good Canadian immigration lawyer. This is extremely important, because this matter could bar you permanently from being sponsored to Canada.

You'll want to make the argument above, and possibly simultaneously any arguments on humanitarian grounds, whatever your lawyer advises. In any event, getting affidavits from your roommates and other people who knew you at that time will be important. The government will be interested in whether you had a "conjugal" type relationship while you lived at the same address. If you knew you were going to get married, but in other respects hadn't combined your lives to the same extent as a married couple, then in theory you were not common-law partners.

Also, if you fail to convince the government and the appeal boards that you weren't common-law partners, then the fact that you were acting in good faith when your now-husband failed to declare you when he became a PR will be crucial in any future application based on humanitarian and compassionate considerations (for example, if you have children later, or if the law changes, as has been suggested even by the government).

It is possible your lawyer will suggest withdrawing the application and resubmitting one. However, this can also sometimes have negative consequences, so it's important to discuss it.

Here are a couple of articles on 117(9)(d):

http://www.cba.org/cba/cle/pdf/Rubinoff2.pdf

http://ccrweb.ca/files/excludedfam.pdf

I suggest you also read the guidance from the Immigration Appeals Division on the definition of "common-law partner" (which is what you want to prove you weren't). Especially pp. 12-18 of

http://www.irb-cisr.gc.ca/eng/brdcom/references/legjur/documents/SpoPar05_e.pdf

CIC's internal guidance on what is a common-law partnership can be found here (especially sections 5.25, 5.26, 5.34, 5.35):

http://www.cic.gc.ca/english/resources/manuals/op/op02-eng.pdf

 

[scylla]

Agreed. Time to get a lawyer.

 

[kleiden]

I think it's important for you to find out exactly what you wrote in your forms, in particular, whether you described this time as a period of "cohabitation".

I suggest you get immediate advice from a good Canadian immigration lawyer. This is extremely important, because this matter could bar you permanently from being sponsored to Canada.

You'll want to make the argument above, and possibly simultaneously any arguments on humanitarian grounds, whatever your lawyer advises. In any event, getting affidavits from your roommates and other people who knew you at that time will be important. The government will be interested in whether you had a "conjugal" type relationship while you lived at the same address. If you knew you were going to get married, but in other respects hadn't combined your lives to the same extent as a married couple, then in theory you were not common-law partners.

Also, if you fail to convince the government and the appeal boards that you weren't common-law partners, then the fact that you were acting in good faith when your now-husband failed to declare you when he became a PR will be crucial in any future application based on humanitarian and compassionate considerations (for example, if you have children later, or if the law changes, as has been suggested even by the government).

It is possible your lawyer will suggest withdrawing the application and resubmitting one. However, this can also sometimes have negative consequences, so it's important to discuss it.

Here are a couple of articles on 117(9)(d):


I suggest you also read the guidance from the Immigration Appeals Division on the definition of "common-law partner" (which is what you want to prove you weren't). Especially pp. 12-18 of



CIC's internal guidance on what is a common-law partnership can be found here (especially sections 5.25, 5.26, 5.34, 5.35):

My husband is seeing a lawyer tomorrow. Right now I am gathering documents to prove that we really weren't living as common-law partners. I am gathering tenancy contracts, bills, bank accounts, and have requested letters and affidavits from our housemates. I hope this will be enough to show that we weren't applicable as common-law at the time though from what I've read so far, it seems we are fighting a lost case. We did not mention that we were in a conjugal type relationship but since our addresses matched then that's the time they raised this issue.

It's really frustrating because I did read the requirements for common-law when we first started to get documents for application and we never considered this since we do not have any of the supporting documents they required. It's ironic that now I am trying to prove myself otherwise.

 

[kleiden]

Btw, I was for work reasons required to live in my boss's accomodation in another emirate (state) for five months. We did not include this information during application because it was temporary and for work but I'm now considering to include this information if it would help strengthen our case. My husband said that it was not a good idea since they will think I'm lying but I can get certifications from my previous boss to prove it.

 

[canadianwoman]

Here is a similar case:
http://canlii.ca/eliisa/highlight.do?text=Philippines+common-law+roommate&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/ca/irb/doc/2011/2011canlii94635/2011canlii94635.html

Get your CAIPS/FOSS/GCMS notes to see what exactly you said on the applications, and what the government has said. Then gather evidence that you did not live together for one year in a common-law relationship (like the people in the case above). Send this evidence in to the visa officer and hope he/she will think it is enough.

 

[frege]

Btw, I was for work reasons required to live in my boss's accomodation in another emirate (state) for five months. We did not include this information during application because it was temporary and for work but I'm now considering to include this information if it would help strengthen our case. My husband said that it was not a good idea since they will think I'm lying but I can get certifications from my previous boss to prove it.

I don't think this is necessarily a lost cause as you said in a previous post. The case Canadianwoman linked to shows this, and the fact that you gave consideration at the time of his application to whether you fell within the definition of "family member" is also a plus. It is important that you be able to articulate the reasons that you came to the conclusion you did - which was probably correct. Good-faith errors won't hurt you so long as the final conclusion of the authorities is that you weren't common-law partners at the time he became a PR.

Also, I agree that there could initially be a suspicion that the five-month period in another state is made up, but if you have sufficient proof and an explanation for what you wrote, then eventually, this is likely to be accepted. What explanation you give for what you wrote is something you should discuss with the lawyer.

And if you can get affidavits from family and other community members, particularly ones you wouldn't be able to influence, who knew you were not in a conjugal relationship, then this will be positive. The lawyer should tell you what kind of information the affidavits should contain, but I imagine it should be factual statements addressing the various characteristics of a conjugal relationship.

 

[kleiden]

Here is a similar case:

Get your CAIPS/FOSS/GCMS notes to see what exactly you said on the applications, and what the government has said. Then gather evidence that you did not live together for one year in a common-law relationship (like the people in the case above). Send this evidence in to the visa officer and hope he/she will think it is enough.

Thanks for the link. I have reviewed some of the cases especially of couples who live in a sharing accomodation. And getting depressed reading it. There is like a 50/50 chance they will consider you as common law or not. Just the fact that we wanted to get married someday seemed to damage our case despite the fact that we lived in a sharing accomodation. Intending to marry and planning to get married for me should be considered different as I don't think people my age go into a relationship just to have fun (I'm in my 30's btw). As far as I know, people this age are already looking for potential lifetime partners. And they should consider that only till Nov 2009 (visitation of both our parents) did we even consider that a wedding is possible as we have several factors against us, culture, religion, and even where we will settle.

I am gathering as much evidence as I can but considering that I am trying to contact people from a different country, it's taking time.

 

[kleiden]

I don't think this is necessarily a lost cause as you said in a previous post. The case Canadianwoman linked to shows this, and the fact that you gave consideration at the time of his application to whether you fell within the definition of "family member" is also a plus. It is important that you be able to articulate the reasons that you came to the conclusion you did - which was probably correct. Good-faith errors won't hurt you so long as the final conclusion of the authorities is that you weren't common-law partners at the time he became a PR.

Also, I agree that there could initially be a suspicion that the five-month period in another state is made up, but if you have sufficient proof and an explanation for what you wrote, then eventually, this is likely to be accepted. What explanation you give for what you wrote is something you should discuss with the lawyer.

And if you can get affidavits from family and other community members, particularly ones you wouldn't be able to influence, who knew you were not in a conjugal relationship, then this will be positive. The lawyer should tell you what kind of information the affidavits should contain, but I imagine it should be factual statements addressing the various characteristics of a conjugal relationship.

My husband spoke to our lawyer yesterday. And he says this is a clear-cut case and should not be a problem if it comes to an appeal. But he said my 5 month work thing cannot be considered as I was constantly coming home during weekends, and sometimes stay over longer when I was needed in the main office. Even if my previous employer was willing to help, he can only give evidence as to the days I was officially in that other state. So the lawyer said it would just look like I was having short business trips/vacationing which was acceptable under their definition of continuous 1 year cohabitation.

Since we were then living in Dubai, only friends knew of our living arrangement since even sharing accomodation with separate sleeping quarters of boys and girls are not allowed. People actually report cases like this for reward money and we tried to stay low-key as much as possible. Sigh, wondering what more evidence I can give. I don't want to show we were actively breaking the law there. It is very hard to disprove coomon-law since I couldn't even prove it in the first place. Ex, we don't have joint bank accounts/credit cards. Am I supposed to contact every bank and Dubai, and ask for a letter saying we don't have existing accounts/joint accounts there?

 

[frege]

My husband spoke to our lawyer yesterday. And he says this is a clear-cut case and should not be a problem if it comes to an appeal. But he said my 5 month work thing cannot be considered as I was constantly coming home during weekends, and sometimes stay over longer when I was needed in the main office. Even if my previous employer was willing to help, he can only give evidence as to the days I was officially in that other state. So the lawyer said it would just look like I was having short business trips/vacationing which was acceptable under their definition of continuous 1 year cohabitation.

Since we were then living in Dubai, only friends knew of our living arrangement since even sharing accomodation with separate sleeping quarters of boys and girls are not allowed. People actually report cases like this for reward money and we tried to stay low-key as much as possible. Sigh, wondering what more evidence I can give. I don't want to show we were actively breaking the law there. It is very hard to disprove coomon-law since I couldn't even prove it in the first place. Ex, we don't have joint bank accounts/credit cards. Am I supposed to contact every bank and Dubai, and ask for a letter saying we don't have existing accounts/joint accounts there?

The thing about breaking the law there - I think this is something you should discuss with the lawyer.

About joint bank accounts, the proof is you and your husband saying you didn't have any. If this goes to appeal, and your testimony is generally believed to be credible in other respects, then they must accept your statements unless there is a specific reason to doubt them. For example, there would be a reason to doubt your statements if it would be possible to provide corroborating documents and you chose not to. Since there's no way you could prove this through documents, this is okay.

In Canada it's easy to find a complete list of your credit cards by getting your report from a credit bureau. I don't know if there's anything comparable in the UAE. Also, if you show what bank accounts and cards you mainly used as individuals, and it appears that the bulk of your banking was done through those accounts and cards, then that could be evidence. These are just ideas, and your lawyer might tell you it's not worth it.

 

[frozensealion]

what was the final output on this case?
we are in a similar situation

 

[kleiden]

The thing about breaking the law there - I think this is something you should discuss with the lawyer.

About joint bank accounts, the proof is you and your husband saying you didn't have any. If this goes to appeal, and your testimony is generally believed to be credible in other respects, then they must accept your statements unless there is a specific reason to doubt them. For example, there would be a reason to doubt your statements if it would be possible to provide corroborating documents and you chose not to. Since there's no way you could prove this through documents, this is okay.

In Canada it's easy to find a complete list of your credit cards by getting your report from a credit bureau. I don't know if there's anything comparable in the UAE. Also, if you show what bank accounts and cards you mainly used as individuals, and it appears that the bulk of your banking was done through those accounts and cards, then that could be evidence. These are just ideas, and your lawyer might tell you it's not worth it.

Thanks, I will try to ask the services of UAE's central bank. I have most of our old original bank statements so I will give them copies of that. I am also getting affidavits from friends who visit so are aware of the living arrangement and also our tenancy contracts. Now I'm just waiting for my sister to courier the docs. I am hoping all this is enough.

I don't want to contradict what I mentioned in the application by convincing them that it was a pure casual relationship. What I want is to convince them that despite the fact that we are a legitimate couple, we have never taken the step to the next level of relationship - which is common-law without being legally married. It might be an old fashioned concept, but both of us came from relationships where marriage was openly discussed and promised and ended miserably. It's not something we ever wanted to do again and throughout our dating phase, we have always been open to discuss everything before making a commitment like marriage.

 

[kleiden]

what was the final output on this case?
we are in a similar situation

Hi, I saw your message but my account is unable to send messages. We are still gathering supporting documents. Will post here once we get a final decision. The waiting is the worst part. I hope your case will have a better output. Please let me know.