Refused PR application for Sposored Child

[tirmizi]

Hi...

Sponsorship application filed in September 2010
Child living in Canada on TRP since April 2010- renewed 3 times.

Regarding my sons case as I was not getting the response from CHC Islamabad, I decided to obtain the CAIPS notes. As per CAIPS notes the PR application is refused as the CHC was not getting any reply from our end on letters posted at the address provided. Considering that the sponsor is no more in Canada.
Actually I changed my residence and updated CHC with my new address via Fax, and I have also found the new address updated online.
During this time I continuously renewed my Son's TRP which I received at my new address but have never received any letter from CHC Islamabad regarding PR.

Based upon CAIPS notes CHC Islamabad had send us the refusal letter with appeal forms which I just received yesterday. On the other hand I have written a letter to CHC Islamabad with a detailed proof that PA and Sponsor both present in Canada from the date of PR application and never left. This letter is received by CHC Islamabad on 6 May almost the day I received their letter by mail... Their letter is actually dated October'12 which is just received on 6 May'13.

Considering the above should I appeal or wait for the letter I wrote to CHC Islamabad.. ( Also cc to CIC Mississauga office)?
ALso if I appeal, should I need an immigration Lawyer/Counsel ?

Tirmizi

 

[tirmizi]

please help.....

 

[CharlieD10]

If they've already denied the application, you need a lawyer to assist you, but that's just my opinion. If they are saying you haven't responded to their letters and they are assuming you are not resident in Canada and you've sent proof to the contrary, you need to sort that out quickly.

 

[computergeek]

If the letter was sent in October 2012 then I cannot see the visa office re-opening the file at this point. However, the appeal deadlines are based upon your receipt of the correspondence, not upon the date of the letter - though this is certainly an area in which CIC may argue that you are beyond the appeal deadline. I agree with Charlie that you need to find competent legal counsel with experience in this area if you wish to move forward with an appeal.

I will suggest some other alternatives to you:

(1) You can simply re-file your application. It does mean you'll have to re-pay the application fee but that's likely less expensive than hiring an attorney to represent you in an appeal situation. If you must appeal through the Toronto IAD office the time for appeals hearings is longer than the time to re-file.

(2) You may not be aware, but after someone has been in Canada on a TRP for a period of time (I believe it is 5 years in your child's case) the grant of permanent residency is non-discretionary.

5.7. Factors to consider when issuing or extending a permit

Officers should issue permits with caution and only in special circumstances. They should give
careful consideration to the factors below before granting an initial permit for the maximum period
of three years or before extending one for an additional two years.

• A temporary resident permit is a document that can carry privileges greater than those
accorded to visitors, students, and workers with temporary resident status. It allows
application inland for a work or study permit, and may give access to health or other
social services.

• There is no discretion involved in granting permanent residence to persons who meet the
requirements of the permit holder class. Persons who remain continuously in Canada on a
permit for the specified time and do not become inadmissible on other grounds will be
granted permanent residence.

Source: OP 20 "Temporary Resident Permits" (emphasis added)

This is also covered in IP 1 "Temporary Resident Permits" - it explains the basic process of applying for permanent residency in the "permit holder's class". Note: this is an extremely unusual class but benefits from being non-discretionary once the relevant time period has elapsed. Even finding the relevant application on the CIC website took a bit of digging: http://www.cic.gc.ca/english/information/applications/guides/5527ETOC.asp - note that these applications are processed by CPC-V.

If your child remains in Canada until April 2015 as a TRP holder (which sounds very likely to occur), nothing Islamabad or the IAD can do will allow them to refuse a new application in the permit holder's class.

The good thing here is that regardless of which approach you take: appeal or new application, it is unlikely that either one will be resolved prior to that five year deadline (28 months published for Islamabad, and about the same just for an appeal through Toronto IAD).

 

[Korea2Canada]

If I were you, I would send a new application.

 

[muksi]

If the letter was sent in October 2012 then I cannot see the visa office re-opening the file at this point. However, the appeal deadlines are based upon your receipt of the correspondence, not upon the date of the letter - though this is certainly an area in which CIC may argue that you are beyond the appeal deadline. I agree with Charlie that you need to find competent legal counsel with experience in this area if you wish to move forward with an appeal.

I will suggest some other alternatives to you:

(1) You can simply re-file your application. It does mean you'll have to re-pay the application fee but that's likely less expensive than hiring an attorney to represent you in an appeal situation. If you must appeal through the Toronto IAD office the time for appeals hearings is longer than the time to re-file.

(2) You may not be aware, but after someone has been in Canada on a TRP for a period of time (I believe it is 5 years in your child's case) the grant of permanent residency is non-discretionary.

Source: OP 20 "Temporary Resident Permits" (emphasis added)

This is also covered in IP 1 "Temporary Resident Permits" - it explains the basic process of applying for permanent residency in the "permit holder's class". Note: this is an extremely unusual class but benefits from being non-discretionary once the relevant time period has elapsed. Even finding the relevant application on the CIC website took a bit of digging: http://www.cic.gc.ca/english/information/applications/guides/5527ETOC.asp - note that these applications are processed by CPC-V.

If your child remains in Canada until April 2015 as a TRP holder (which sounds very likely to occur), nothing Islamabad or the IAD can do will allow them to refuse a new application in the permit holder's class.

The good thing here is that regardless of which approach you take: appeal or new application, it is unlikely that either one will be resolved prior to that five year deadline (28 months published for Islamabad, and about the same just for an appeal through Toronto IAD).

If you are in Canada and planning to stay here, the other option is to file a new inland application. Inland processing is much faster than Islamabad processing times. Applicant cant travel out of Canada during processing.

 

[computergeek]

If you are in Canada and planning to stay here, the other option is to file a new inland application. Inland processing is much faster than Islamabad processing times. Applicant cant travel out of Canada during processing.

Inland processing is not an option for sponsoring a child in the family class.

 

[tirmizi]

Thanks a lot members on their feedback. Its really very helpful...

Summary :
its same to process new application or to go for appeal from duration point of view .
Processing fee has to be paid along with medical for new application -- Cheaper option
Appeal it self have no fees but Attorney/Counsel expenses are quite high.

Concerns:
Should New application be processed after refusing the appeal ?
What are the chances without hiring a counsel ?
If appeal refused once , still new application can be filed ?

What will be the effect of above refusal on TRP application process ( still under process with CIC-V) ?

Thanks

Tirmizi

 

[computergeek]

Thanks a lot members on their feedback. Its really very helpful...

Summary :
its same to process new application or to go for appeal from duration point of view .
Processing fee has to be paid along with medical for new application -- Cheaper option
Appeal it self have no fees but Attorney/Counsel expenses are quite high.

Concerns:
Should New application be processed after refusing the appeal ?
What are the chances without hiring a counsel ?
If appeal refused once , still new application can be filed ?

What will be the effect of above refusal on TRP application process ( still under process with CIC-V) ?

Thanks

Tirmizi

It's always advisable to consult with legal counsel on any such question - what I and others on this forum say is not legal advice. Generally a consultation with an attorney will cost you a few hundred dollars.

The only other thing you might wish to do is communicate with the visa office in Islamabad. Send them a letter - use a courier service - and advise them you've never received a copy of the rejection and only learned of it via an ATIP request. Explain the circumstances, advise them of your current address - and a valid e-mail address ideally - and request they re-open your child's file. If you choose to do this, you should "fuse" your letter: give them some period of time to respond and advise them that if they do not respond in that time period you will assume they are not willing to reopen the file and you will pursue a new application and/or an appeal.

My first application (which was done with the use of attorneys) was refused. My second application (which I filed myself) was granted. The important thing is to be able to address the reason for the original refusal. In the original case it was due to an address/communications problem. If you think your address might be changing during the processing of a second application, I would suggest that you engage the services of a mail forwarder OR you pay Canada Post to continue forwarding your mail for the duration of the application - either is a cheaper option than filing a new application or appealing an old application. By ensuring you receive their communications, you should be able to overcome their prior rejection. Note however, that in my experience a prior rejection does make the process slower (I can see it in my own GCMS notes - the second application passed on first review except for the rejection. A more senior officer had to review and approve the application before it moved forward.)

With respect to the pending TRP application, were I in your position, I'd communicate clearly with CPC-V and explain the situation and advise them of your decision to either move forward with an appeal OR submit a new application - and provide them with documentary evidence to that effect, such as a fee payment receipt in the case of a new application or the appeal application in the case of an appeal. Granting a TRP to a minor child does not pose any risk to Canadian society and there are strong H&C factors to consider here - the same grounds which led them to granting the TRP in the first place - so I'd be rather surprised if they refused to grant a new TRP to your child. Indeed, the refusal might garner sympathy for you from the officer in Vegreville. After all, THEY knew how to contact you and refusing the TRP would leave you in a very difficult position.

Best of luck to you no matter what course of action you choose to pursue.