PR refusal for criminal offence - need an advice

[erolich]

It makes it more clear to me.

In fact, the immigration officer contacted us prior to this refusal letter asking us to explain what happened during this offence (it was an opportunity to help them take a decision). We honestly replied what exactly happened, however our explanations were not satisfactory as "we did not provide enough evidence". And so we got a refusal. Our mistake was that we didn't gather enough evidence to explain the situation. We probably should have hired a lawyer right there...

Today I sent a letter that we are not appealing the decision...

 

[erolich]

Since you are a naturalized Canadian, you can pass on canadian citizenship to your child. Not sure of the procedure to grant your child a temporary Canadian passport. You may need to check out on that.

Screech339

Thank you! I will double check with Canadian office here in UK as well on how to get it.

 

[bartjones]

If I'm understanding the OP correctly, her husband was convicted of an offence outside of Canada which could be prosecuted as an indictable offence here in Canada but is actually a hybrid offence under s. 259(4) of the Criminal Code of Canada. It is his only criminal conviction. His wife is a Canadian citizen and he will soon have a Canadian child. He made an outland PR application and therefore has the right to appeal.

You can prejudge the legalities all you like, but in the circumstances the OP would be foolish not to file the appeal. Given the situation, she has a prima facie case based on humanitarian and compassionate considerations.

In my opinion, unless you are 100 per cent certain that an appeal in this case has absolutely no chance of success, it would be irresponsible to advise the OP to abandon her appeal rights. Once her 30 days have passed those appeal rights are gone, permanently. The OP should be filing the appeal and consulting an immigration lawyer immediately. Surely it makes more sense to file the appeal and be denied by the IAD then to abandon those appeal rights based on advice she got on an internet forum.

 

[screech339]

Thank you! I will double check with Canadian office here in UK as well on how to get it.

If you have no travel plans in the near future, I suggest that you apply for Canadian citizenship certificate for your new baby. But you would require to provide ID documentations like British birth certificates, British health card, British passport before you can apply for proof of Canadian citizenship.

You would need that certificate first before you can apply for Canadian Passport.

Screech339

 

[erolich]

The problem is that the OP mentioned that the offense is "minor"? According to the letter, it is an equivalent to an indictable offense if this happened in Canada. This is not a minor offense. That is a major offense. Doesn't sound minor to me.

However I had an applicant in my timesheets that applied inland and got a negative decision made on account that the applicant had an indictable offense in Canada.

You can try for an appeal but it would likely pass appeal if the offense was a minor offense. This is an major offense since it said it is the same indictable offense in Canada.

Screech339

Thank you for clarifying the terms here. Now we are deciding whether or not to apply for TRP.

 

[screech339]

If I'm understanding the OP correctly, her husband was convicted of an offence outside of Canada which could be prosecuted as an indictable offence here in Canada but is actually a hybrid offence under s. 259(4) of the Criminal Code of Canada. It is his only criminal conviction. His wife is a Canadian citizen and he will soon have a Canadian child. He made an outland PR application and therefore has the right to appeal.

You can prejudge the legalities all you like, but in the circumstances the OP would be foolish not to file the appeal. Given the situation, she has a prima facie case based on humanitarian and compassionate considerations.

In my opinion, unless you are 100 per cent certain that an appeal in this case has absolutely no chance of success, it would be irresponsible to advise the OP to abandon her appeal rights. Once her 30 days have passed those appeal rights are gone, permanently. The OP should be filing the appeal and consulting an immigration lawyer immediately. Surely it makes more sense to file the appeal and be denied by the IAD then to abandon those appeal rights based on advice she got on an internet forum.

I agree that they should apply for an appeal as they have a right to it as they applied outland. If you got an opportunity, use it.

I never stated that she should not appeal. I was responding to a post telling her that if the offense was minor, she would win appeal. I was merely correcting her that the OP's "minor" offense doesn't sound minor if this is an equivalent to an indictable offense and that is a serious offense. Not "minor".

Screech339

 

[Ponga]

Wow! I wonder if the OP would mind sharing the details of what caused the `Driving Whilst Disqualified' in the first place.

At first glance, this seems like a really harsh penalty (denial of PR) for someone that may have lost their driver licence for something other than a major offense. Maybe...too many parking tickets?!?!

 

[jomz]

If I'm understanding the OP correctly, her husband was convicted of an offence outside of Canada which could be prosecuted as an indictable offence here in Canada but is actually a hybrid offence under s. 259(4) of the Criminal Code of Canada. It is his only criminal conviction. His wife is a Canadian citizen and he will soon have a Canadian child. He made an outland PR application and therefore has the right to appeal.

You can prejudge the legalities all you like, but in the circumstances the OP would be foolish not to file the appeal. Given the situation, she has a prima facie case based on humanitarian and compassionate considerations.

In my opinion, unless you are 100 per cent certain that an appeal in this case has absolutely no chance of success, it would be irresponsible to advise the OP to abandon her appeal rights. Once her 30 days have passed those appeal rights are gone, permanently. The OP should be filing the appeal and consulting an immigration lawyer immediately. Surely it makes more sense to file the appeal and be denied by the IAD then to abandon those appeal rights based on advice she got on an internet forum.

I have posted information, and did not in any shape or form advised anyone not to apply for an appeal. My comment was directed at you and not the OP, and specifically to have your lawyer provide you with information on which basis he/she is planning to appeal. There are many lawyers that will take all and any cases and will promise "the moon", but in actuality, they only do so to collect a fee and in the end damage any other chances of family reunifications.

 

[screech339]

According to UK website "driving while disqualified" warranted a max 6 month jail term or 12 months in scotland, plus 5000 lb fine.

This is offense falls under provincial traffic offences as "Driving without Licence". Not an Criminal Offence/indictable Offence.

So it seems there is more to story than just the offence of "Driving while Disqualified".

So I am not sure where CIC would come to a conclusion of it being an equilvanent to an indictable offense if had this happened in Canada.

Drunk driving, refusing breathe test or dangerous driving are examples of indictable offense in Canada as it falls under the criminal code.

Screech339

 

[bartjones]

I think we can all agree that the OP should;

1. File a TRP application,
2. File an appeal before her 30 days are up and,
3. Consult an experienced immigration lawyer ASAP

With respect to (3) she can probably get advice on this board from someone who had a reputable lawyer they would recommend.

 

[bartjones]

According to UK website "driving while disqualified" warranted a max 6 month jail term or 12 months in scotland, plus 5000 lb fine.

This is offense falls under traffic offences as "driving without licence". Not an Criminal Offence/indictable Offense. So it seems there is more to story than just the offence of "driving while disqualified".

So I am not sure where CIC would come to a conclusion of it being an equilvanent to an indictable offense if this happened in Canada.
Drunk driving, refusing breathe test or dangerous driving are examples of indictable offense in Canada as it falls under the criminal code.

Screech339

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.

 

[erolich]

Wow! I wonder if the OP would mind sharing the details of what caused the `Driving Whilst Disqualified' in the first place.

At first glance, this seems like a really harsh penalty (denial of PR) for someone that may have lost their driver licence for something other than a major offense. Maybe...too many parking tickets?!?!

Driving whilst disqualified was caused by my husband driving a vehicle while uninsured. Once driving uninsured, he couldn't drive for 6 months. But he did, so when police stopped him, he was convinced of Driving whilst disqualified. He didn't go to jail, he only had to pay a fine of 730 pounds.

There was another offence in the police report after that: "fail to comply with the requirement of a community order between 23-06-2012 to 30-06-2012". However nothing was mentioned to explain that offence.

That's all.

 

[screech339]

Here is an link on Canada Criminal Law. According to website it is indeed an indictable offense.

http://en.wikibooks.org/wiki/Canadian_Criminal_Law/Offences/Driving_While_Disqualified

Screech339

 

[bartjones]

Here is the actual section of the Criminal Code of Canada;

259(4) Every offender who operates a motor vehicle, vessel or aircraft or any railway equipment in Canada while disqualified from doing so, other than an offender who is registered in an alcohol ignition interlock device program established under the law of the province in which the offender resides and who complies with the conditions of the program,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction.

Definition of “disqualification”

(5) For the purposes of this section, “disqualification” means

(a) a prohibition from operating a motor vehicle, vessel or aircraft or any railway equipment ordered pursuant to any of subsections (1), (2) and (3.1) to (3.4); or

(b) a disqualification or any other form of legal restriction of the right or privilege to operate a motor vehicle, vessel or aircraft imposed

(i) in the case of a motor vehicle, under the law of a province, or

(ii) in the case of a vessel or an aircraft, under an Act of Parliament,

in respect of a conviction or discharge under section 730 of any offence referred to in any of subsections (1), (2) and (3.1) to

http://laws-lois.justice.gc.ca/eng/acts/C-46/section-259.html

It's a hybrid offence, i.e. the Crown can choose whether to proceed summarily or by indictment.

Driving whilst disqualified was caused by my husband driving a vehicle while uninsured. Once driving uninsured, he couldn't drive for 6 months. But he did, so when police stopped him, he was convinced of Driving whilst disqualified. He didn't go to jail, he only had to pay a fine of 730 pounds.

There was another offence in the police report after that: "fail to comply with the requirement of a community order between 23-06-2012 to 30-06-2012". However nothing was mentioned to explain that offence.

That's all.

When did you get the refusal letter from CIC?

 

[erolich]

Here is the actual section of the Criminal Code of Canada;
http://laws-lois.justice.gc.ca/eng/acts/C-46/section-259.html

It's a hybrid offence, i.e the Crown can choose whether to proceed summarily or by indictment.

When did you get the refusal letter from CIC?

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