PR refusal for criminal offence - need an advice

[screech339]

Agreed, but either way, it really doesn't matter. 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, which it clearly does not.

I agree that the OP has a right to appeal due to that fact that the hubby has not done any jail term at all. He doesn't fit the "no appeal" rules. However the appeal may still likely to keep the negative ruling due to that the convicted offense is an indictable offense in equivalently to Canada.

Now this may be an example here. One applicant could have been charge with drunk drinking but only gotten a fine for it, no jail term. Do you think that the applicant should be able to say it is only a "minor" offence since he/she only paid a fine in his/her country in the eyes of CIC or Canada criminal law? In the eyes of the law in Canada, that is a serious offense. Do you as a CIC officer want to bring in someone who was convicted of drunk driving? This is the point I am making. The appeal may still hold up the decision due to it being a serious offense in Canada.

There are countries that have tighter drunk driving laws than us. Norway, China has 0.02% to get a conviction, whereas we have 0.05%. Does this mean we have to forsaken the conviction of china or norway because theirs is tighter than ours? A conviction is a conviction.

CIC is not going to say, oh it has a 0.02% alcohol level in the system thus doesn't apply to us since ours is at 0.08%. They will not see that. They will only see a record of driving under influence as police record thus it is an indictable offense in Canada too, thus inadmissionable.

Screech339

 

[bartjones]

I agree that the OP has a right to appeal due to that fact that the hubby has not done any jail term at all. He doesn't fit the "no appeal" rules. However the appeal may still likely to keep the negative ruling due to that the convicted offense is an indictable offense in equivalently to Canada.

Now this may be an example here. One applicant could have been charge with drunk drinking but only gotten a fine for it, no jail term. Do you think that the applicant should be able to say it is only a "minor" offence since he/she only paid a fine in his/her country in the eyes of CIC or Canada criminal law? In the eyes of the law in Canada, that is a serious offense. Do you as a CIC officer want to bring in someone who was convicted of drunk driving? This is the point I am making. The appeal may still hold up the decision due to it being a serious offense in Canada.

Screech339

Frankly, that's a question for the IAD to decide based on the circumstances surrounding the conviction. What concerned me in this thread was the suggestions being made that the OP either had no right of appeal or could appeal but shouldn't because she would probably lose. The former is completely incorrect and the latter is really a question for an experienced immigration lawyer.

 

[screech339]

Frankly, that's a question for the IAD to decide based on the circumstances surrounding the conviction. What concerned me in this thread was the suggestions being made that the OP either had no right of appeal or could appeal but shouldn't because she would probably lose. The former is completely incorrect and the latter is really a question for an experienced immigration lawyer.

Again I only merely pointing out that she can appeal but be prepared for a still a negative ruling. There is no harm in appealing. If it came back negative, at least you tried but don't be surprised by it. An appeal is only good for those that wish for a reversal of ruling.

Screech339

 

[erolich]

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.

Could you please clarify what is "H&C" grounds means? Humanitarian and Compassionate?

Yes, with this refusal I will have to get a residence in UK since I don't want to live apart from my husband.

Also, if we appeal and we will not win the case, will we still be able to reapply in the future (5 years as it states in the letter)?

And here is what the letter exactly said (regarding the inadmissibility):

"I have considered your request for Humanitarian and Compassionate Consideration. You requested this in consideration of the fact that your conviction was in April 2012, and you are older now, that you are now more careful on the roads and that your sponsor is pregnant and wishes to return to Canada when her UK visa expires. You provided insufficient documentation to demonstrate that you have matured in time since your conviction approximately 1,75 years ago. For this you documented attendance at church. You provided insufficient documentation to greater care on the roads. Further your inadmissibility is not related to lack of care while driving but rather a decision to ignore an ongoing consequence to your earlier conviction on a road traffic offence. Finally, you document your wife's pregnancy, but have not demonstrated or indicated that you are unable to sponsor your wife to remain in the UK with you. She is residing in the UK currently, and her pregnancy is being followed by a doctor.

As a result I am not satisfied that there is sufficient documentation of grounds to overcome your inadmissibility.

Subsection 11(1) of the Act states that the visa or document shall be issued if, following an examination, the officer is satisfied that the foreigh national is not inadmissible and meets the requirements of this Act. I am satisfied that you are inadmissible for the reasons set out above.

This inadmissibility also extends to any stay in Canada as a visitor, for you. You should therefore not attempt to enter Canada. You will be eligible to apply for Criminal Rehabilitation after five years past completion of your sentence, the date you will therefore be eligible to apply for Criminal Rehabilitation is 31-05-2018"

 

[Ponga]

Yikes!

Again, just to make sure I understand what really happened...

The OP's husband received a ticket for driving without insurance, which in and of itself would not have lead to the PR refusal. It was only after he chose to continue driving and was stopped and cited again, that has lead to this unfortunate outcome for he and the OP. What was a mere traffic offence has snowballed into this `mell-of-a-hess'?!?!

Is that correct?

 

[bartjones]

Could you please clarify what is "H&C" grounds means? Humanitarian and Compassionate?

Yes, "H&C" = Humanitarian and Compassionate

Also, if we appeal and we will not win the case, will we still be able to reapply in the future (5 years as it states in the letter)?

I'm not sure. That's a good question for the lawyer you should consult.

 

[erolich]

Yikes!

Again, just to make sure I understand what really happened...

The OP's husband received a ticket for driving without insurance, which in and of itself would not have lead to the PR refusal. It was only after he chose to continue driving and was stopped and cited again, that has lead to this unfortunate outcome for he and the OP. What was a mere traffic offence has snowballed into this `mell-of-a-hess'?!?!

Is that correct?

Yes, correct. I assume by traffic offence they mean Driving while uninsured.

 

[erolich]

I'm not sure. That's a good question for the lawyer you should consult.

I was under impression that if someone appeals and doesn't win the case, it is over, not possible to reapply again (I read it on this forum somewhere) .

 

[screech339]

Yes, correct. I assume by traffic offence they mean Driving while uninsured.

His first offence was driving while insured. The second offence is willfully breaking the condition of the first offence by continuing to break the law the second time thus "the driving while disqualified".

Two difference offenses. The CIC doesn't care about the first offense. It is the second offense that they were concerned with.

Screech339

 

[bartjones]

I was under impression that if someone appeals and doesn't win the case, it is over, not possible to reapply again (I read it on this forum somewhere) .

Maybe. I don't know. Maybe the situation is different if you're refused on grounds of criminality and that criminality is subsequently rehabilitated by an application to CIC. I do know that given the seriousness of your situation,you'd be better advised to raise that issue and the other issues surrounding your husband's PR rejection with an experienced Canadian immigration lawyer.

 

[screech339]

I was under impression that if someone appeals and doesn't win the case, it is over, not possible to reapply again (I read it on this forum somewhere) .

If you lost the appeal, you can still reapply 5 years after the second conviction. If the conviction occurred in 2012, he would have to wait until may 2017 before applying again.

Screech339

 

[CheshireCats]

My husband was refused PR inland for criminality in September of this year, he is in Canada on a TRP and work permit at the moment that expires in 3 weeks, we have applied to have it extended and are filing an outland PR application. He has been in Canada with me for 6 years and there is a child involved.
Get to a lawyer immediately... you will have to pay for a consultation. If you don't have to pay for a consultation, then don't use that lawyer!
Stop reading up on the internet, it's like self diagnosing, you are going to worry yourself crazy!!! Each case is different...

Just speaking from first hand experience. I wouldn't wish this situation on my worst enemy!
Good luck!

 

[canadianwoman]

I was under impression that if someone appeals and doesn't win the case, it is over, not possible to reapply again (I read it on this forum somewhere) .

This is usually believed to be the case when the appeal is lost because the marriage is found to be non-genuine. The couple can reapply, but the second application is usually refused because of 'res judicata', which means the case has already been decided. If there is no new evidence of a genuine relationship, they will not win (usually). So it is possible to reapply, but pointless.
Here, though, they could reapply 5 years after his sentence is over. The grounds for the second application are different, so there would be no finding of res judicata.

 

[erolich]

This is usually believed to be the case when the appeal is lost because the marriage is found to be non-genuine. The couple can reapply, but the second application is usually refused because of 'res judicata', which means the case has already been decided. If there is no new evidence of a genuine relationship, they will not win (usually). So it is possible to reapply, but pointless.
Here, though, they could reapply 5 years after his sentence is over. The grounds for the second application are different, so there would be no finding of res judicata.

Thank you for clarifying!

 

[Alurra71]

I would appeal and while waiting collect all the necessary documents and information to counteract each point the vo made in the refusal letter.