jes_ON said:
This is the key point. I don't know what efforts NOMOre actually made to attempt to get the exam completed, but his post did not indicate any evidence - only an assertion that his ex and family would not cooperate. Although he furnished all other required documentation, there was no mention of documented efforts to get the medical completed, or the family's refusal to cooperate. "Documented effort" doesn't only mean a written refusal - that's just the easiest evidence to use. At the very least, you need a written explanation of what you tried, and why that didn't work. Other possibilities include keeping a log of telephone calls made and responses, providing contact information of the custodial parent, etc., or testimonial from a third party...
It may seem harsh on the part of the VO to refuse even with all the other evidence, but I'm sure they work with a checklist - and if something on the list is not checked ...
It won't hurt to request a reconsideration on the basis of 5.12, but there's a good chance that the decision will stand.
there is a reason i didn't bother submitting attempts proof.
1. they never mentioned to me that they require such stuff.
2. in 2014 , Federal Court of Canada mentioned in one Case " In Rarama v. Canada (Citizenship and Immigration), 2014 FC 60 the Federal Court has held that once evidence of a child’s custody and the requested statutory declaration waving the right to sponsor the child have been provided to an immigration officer, it is unreasonable for that officer to then continue demanding proof of attempts made to have the applicant’s non-accompanying child medically examined or to refuse to grant the applicant’s application on the basis that the applicant had failed to provide such proof.
Subsection 117(9)(d) of the IRPA Regulations states that a foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if the sponsor previously made an application for, became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.
Accordingly, as the Federal Court also held in Rarama, once the statutory declaration is received, the officer no longer has any reason to require that an applicant’s child be medically examined. The Court confirmed that section 16(1) of IRPA provides that an applicant must produce all relevant evidence and documents that the officer reasonably requires. However, in circumstances such as the present one - where proof of a child’s custody and the requested statutory declaration have been provided to the immigration officer - the Court held that the information as to attempts by the applicant to have his or her child medically examined was no longer relevant nor was it reasonably required to finally process the application (for your ease of reference the Court’s judgment in Rarama, particularly paras 29-30 thereof, can reviewed at this link: http://www.canlii.org/en/ca/fct/doc/2014/2014fc60/2014fc60.html ). "
In that case the guy had no Custody Document , No Divorce Document . He only submitted the Declaration to let go his right to sponsor his child and a simple legal opinion from a lawyer that he can't compel the ex to undergo medical.
Moreover, I have Divorce document and Custody Document stating i only have Visiting right. also have submitted Declaration sent to me by CIC VO.
