PR refusal for criminal offence - need an advice

[screech339]

if you keep reading the website, it give further discussion.

Proof of the Offence
1.identity of accused
2.date and time of incident
3.jurisdiction (incl. region and province)
4.the accused operated a vehicle
5.that the vehicle was a "motor vehicle"
6.the accused's licence was suspended by a court order at the time (use certificate of suspension)
7.time and date of the prohibition
8.that a copy of the order was given to the accused (or mailed to him)
9.that the order was read to him

Interpretation

Once the Crown makes out the essential elements of the case, the accused should be convicted unless there is evidence showing a lack of knowledge of the suspension.

There has been mixed views on whether the prosecution must prove that the accused was not registered in the provincial interlock program.

The interpretation part does say that unless there is evidence that the hubby unknowingly drove under suspension, the accused should be convicted as indictable. So in terms of CIC's interpretation of the hubby's action he would have been charged with an indictable offense since he knew he was not allowed to drive under proof of offense number 6.

Screech339

 

[bartjones]

That is exactly what I found as well when reading their letter, same paragraph.
We got the refusal letter on November 25th 2013.

Okay, thanks. If I were you I would consult an immigration lawyer immediately. You still have time to file the appeal. My advice would be to post a message here asking someone to recommend an immigration lawyer in your area that they had a good experience with. Often they will give you an initial consultation for free. Tell him/her your story and get some reliable advice as to whether you can succeed on appeal.

I don't mean in any way to demean or insult the people who offer advice here on these forums, but to the best of my knowledge, none of them are lawyers and they can only give you their best guess or anecdotal experiences. The future of your family hangs in the balance here. You need to get some expert help and you need to do this soon. Best of luck.

 

[erolich]

Okay, thanks. If I were you I would consult an immigration lawyer immediately. You still have time to file the appeal. My advice would be to post a message here asking someone to recommend an immigration lawyer in your area that they had a good experience with. Often they will give you an initial consultation for free. Tell him/her your story and get some reliable advice as to whether you can succeed on appeal.

I don't mean in any way to demean or insult the people who offer advice here on these forums, but to the best of my knowledge, none of them are lawyers and they can only give you their best guess or anecdotal experiences. The future of your family hangs in the balance here. You need to get some expert help and you need to do this soon. Best of luck.

Thank you! Honestly, this forum is the only place so far where I was able to get clear answers and helpful info.

Now that I already signed a letter that I will not appeal the decision (I mailed it today), I suppose I cannot appeal now?

 

[jomz]

Yes, the IAD would have to determine the equivalent offence in Canada. That's often a tricky thing to do. All the more reason to file the appeal.

You are not understanding that IAD cannot make that determination.

Section 64(1) and (2) of IRPA provides that no appeal may be made to Immigration Appeal Division (IAD), by either a foreign national or their sponsor, if the foreign national has been found to be inadmissible on the following grounds:
• “serious criminality”, where the offence was punished in Canada by a term of imprisonment of at least two years – IRPA, s. 36(1)
• “organized criminality” – IRPA, s. 37
• “security” – IRPA, s. 34
• “human or international rights violations” – IRPA, s. 35

The Federal Court has held that the IAD has no jurisdiction to entertain appeals in such cases. The appeal must be dismissed for lack of jurisdiction if the visa officer has determined the foreign national to be inadmissible on one of the enumerated grounds; the IAD is not empowered to determine whether the foreign national is in fact inadmissible.

 

[bartjones]

You are not understanding that IAD cannot make that determination.

Section 64(1) and (2) of IRPA provides that no appeal may be made to Immigration Appeal Division (IAD), by either a foreign national or their sponsor, if the foreign national has been found to be inadmissible on the following grounds:
• “serious criminality”, where the offence was punished in Canada by a term of imprisonment of at least two years – IRPA, s. 36(1)
• “organized criminality” – IRPA, s. 37
• “security” – IRPA, s. 34
• “human or international rights violations” – IRPA, s. 35

The Federal Court has held that the IAD has no jurisdiction to entertain appeals in such cases. The appeal must be dismissed for lack of jurisdiction if the visa officer has determined the foreign national to be inadmissible on one of the enumerated grounds; the IAD is not empowered to determine whether the foreign national is in fact inadmissible.

Under what section of the Act you've quoted do you think the OP's situation falls?

 

[screech339]

Okay, thanks. If I were you I would consult an immigration lawyer immediately. You still have time to file the appeal. My advice would be to post a message here asking someone to recommend an immigration lawyer in your area that they had a good experience with. Often they will give you an initial consultation for free. Tell him/her your story and get some reliable advice as to whether you can succeed on appeal.

I don't mean in any way to demean or insult the people who offer advice here on these forums, but to the best of my knowledge, none of them are lawyers and they can only give you their best guess or anecdotal experiences. The future of your family hangs in the balance here. You need to get some expert help and you need to do this soon. Best of luck.

BTW: I took no offense to you saying that we are not lawyers. I was merely trying to be Devil's Advocate in figuring out how CIC came to this conclusion of it being an indictable offense equilivant.

The first offense that OP's hubby wasn't an indictable offense since he was driving without insurance which falls under provincial juridiction. However the second offense, the hubby got caught knowingly drove under suspension which can be viewed an indictable offense had this occured in Canada. I think this is where CIC made this determination.

Screech339

 

[screech339]

Section 64(1) and (2) of IRPA provides that no appeal may be made to Immigration Appeal Division (IAD), by either a foreign national or their sponsor, if the foreign national has been found to be inadmissible on the following grounds:
• “serious criminality”, where the offence was punished in Canada by a term of imprisonment of at least two years – IRPA, s. 36(1)
• “organized criminality” – IRPA, s. 37
• “security” – IRPA, s. 34
• “human or international rights violations” – IRPA, s. 35

The Federal Court has held that the IAD has no jurisdiction to entertain appeals in such cases. The appeal must be dismissed for lack of jurisdiction if the visa officer has determined the foreign national to be inadmissible on one of the enumerated grounds; the IAD is not empowered to determine whether the foreign national is in fact inadmissible.

Under what section of the Act you've quoted do you think the OP's situation falls?

I think the OP's hubby may fall under "serious criminality" since the offence that the hubby did, if had this occured in Canada since it can net up to 5 year jail term if convicted.

Screech339

 

[bartjones]

Thank you! Honestly, this forum is the only place so far where I was able to get clear answers and helpful info.

Now that I already signed a letter that I will not appeal the decision (I mailed it today), I suppose I cannot appeal now?

Don't worry about the letter you sent. You haven't given up your appeal rights. Just find a lawyer ASAP and get some advice.

BTW, there is an appeal specific thread here where someone might be able to recommend a lawyer.

http://www.canadavisa.com/canada-immigration-discussion-board/-t87619.0.html

Again, don't give up and get in to see a lawyer. Good luck.

 

[wolanila]

I found this definition of Driver in the Black's law Dictionary second edition to be quite interesting

One employed in conducting a coach, carriage, wagon, or other vehicle,with horses, mules, or other animals, or a bicycle, tricycle, or motor car, though not astreet railroad car. See Davis v. Petrinovich, 112 Ala. 654, 21 South. 344, 36 L. R. A.615; Gen. St. Conn. 1902,

Law Dictionary: http://thelawdictionary.org/driver/#ixzz2nBuQGmSc



I found the use of the word "Employed" and "Conducting" especially interesting. Meaning for under contract for hire.

Im not a layer, just interested in the definitions they use. they are quite different from regular english.

 

[bartjones]

I think the OP's hubby may fall under "serious criminality" since the offence that the hubby did, if had this occured in Canada since it can net up to 5 year jail term if convicted.

Screech339

Again, we need to look at the Act. "Serious Criminality" is defined in s. 36. It states;

Serious criminality

36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;

(b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or

(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.
Marginal note:Criminality

(2) A foreign national is inadmissible on grounds of criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;

(b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament;

(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament; or

(d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.

He certainly doesn't fall under 36(1)(a) because he wasn't convicted of any crime in Canada. He was convicted in the UK.

He doesn't seem to fall under 36(1)(b) or (c) either because the equivalent criminal offence in Canada is s. 259(4) of the Criminal Code which carries a maximum sentence of only 5 years.

So, it would appear that the OP has a right to appeal on H&C grounds, which is exactly what she should do.

 

[jomz]

As for H&C grounds. From my understanding the OP is living and is etablished in the UK, as is the applicant (her spouse). Due to this fact she may not quality under H&C grounds.

As it was mentioned, consult a lawyer, and ask for copies of similar cases to yours.

 

[jomz]

Barjones, you mentioned you have a lawyer. I think your lawyer may not really be up to date with the information regarding appeals. I am not making any assumptions, I am not telling anyone what to do or what not to do, I am just hoping that everyone will do proper due diligence when they do in fact retain the services of a lawyer. I have been in the legal profession for a few years, and I have seen a lot of disservice done by many legal professionals to unsuspecting clients, therefore I am just trying to stress that it is very important to do your due diligence before handing over your life/future into hands of a lawyer, I am asking all to ask questions, and for the fees you or anyone else pays to the lawyer you can most certainly demand proof of their competance. Please check the below.


http://www.cic.gc.ca/english/resources/manuals/bulletins/2013/ob525.asp

 

[screech339]

Again, we need to look at the Act. "Serious Criminality" is defined in s. 36. It states;

He certainly doesn't fall under 36(1)(a) because he wasn't convicted of any crime in Canada. He was convicted in the UK.

He doesn't seem to fall under 36(1)(b) or (c) either because the equivalent criminal offence in Canada is s. 259(4) of the Criminal Code which carries a maximum sentence of only 5 years.

So, it would appear that the OP has a right to appeal on H&C grounds, which is exactly what she should do.

Anyway, the OP should still appeal. There is no harm in trying.

Yes the OP's hubby was not convicted in Canada. The point I was trying to make was that had the OP's husband action occured in Canada, he would have been convicted in Canada as an indictable offence. Just cause the law is difference in UK compared to Canada, doesn't mean we apply the same law as UK. What happened in UK may be considered a minor offense but it may be a serious offence if done in Canada. Since OP was convicted of offence, the same offence would be considered an indictable offense here in Canada had he done it here in Canada instead of UK. This is the point I am making.

 

[bartjones]

Barjones, you mentioned you have a lawyer. I think your lawyer may not really be up to date with the information regarding appeals. I am not making any assumptions, I am not telling anyone what to do or what not to do, I am just hoping that everyone will do proper due diligence when they do in fact retain the services of a lawyer. I have been in the legal profession for a few years, and I have seen a lot of disservice done by many legal professionals to unsuspecting clients, therefore I am just trying to stress that it is very important to do your due diligence before handing over your life/future into hands of a lawyer, I am asking all to ask questions, and for the fees you or anyone else pays to the lawyer you can most certainly demand proof of their competance. Please check the below.


http://www.cic.gc.ca/english/resources/manuals/bulletins/2013/ob525.asp

Take a look at your link. They are quoting s. 64 of the Act. It parrots section 36 and states;

64. (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.

Marginal note:Serious criminality

(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least six months or that is described in paragraph 36(1)(b) or (c).

Marginal note:Misrepresentation

(3) No appeal may be made under subsection 63(1) in respect of a decision that was based on a finding of inadmissibility on the ground of misrepresentation, unless the foreign national in question is the sponsor's spouse, common-law partner or child.

Section 64(2) only applies if the applicant was convicted of a crime in Canada and received a sentence of 6 months or more in prison. The OP's husband was convicted in the UK and received only a fine. As I said earlier, assuming the equivalent offence in Canada is s. 259(4) which carries a maximum sentence of 5 years, sections 36(1)(b) or (c) don't apply either. So, the OP's husband's case is not one involving "Serious Criminality" as defined by the Act and she has a right of appeal.

I agree entirely with your comments about shady lawyers. That's why I have suggested she get a recommendation from some who had a good one.

 

[bartjones]

Anyway, the OP should still appeal. There is no harm in trying.

Yes the OP's hubby was not convicted in Canada. The point I was trying to make was that had the OP's husband action occured in Canada, he would have been convicted in Canada as an indictable offence. Just cause the law is difference in UK compared to Canada, doesn't mean we apply the same law as UK. What happened in UK may be considered a minor offense but it may be a serious offence if done in Canada. Since OP was convicted of offence, the same offence would be considered an indictable offense here in Canada had he done it here in Canada instead of UK. This is the point I am making.

Agreed, but either way, it really doesn't matter. I understand why the VO rejected the application. A VO can reject an application for reasons of criminality, whether that criminality is "serious" or otherwise.

I quoted those sections of the Act because it was suggested that the OP had no right of appeal because her husband's case fell into the "Serious Criminality" category as defined under the Act, which it clearly does not.