sponsorship not valid until 5 years

[F-Ray]

I'm not sure I understand your question.

The date YOU were sponsored doesn't matter. All that matters is the date you submit the application to sponsor your new spouse. When CIC talks about the application being receive - that's the application they are talking about (not the original application to sponsor you). Since you would be applying to sponsor your new spouse after the new rule came into effect, you have to wait until 2018 before you can submit the application to sponsor your new spouse since the 5 year ban applies to you.

I also understand what you said. But same time when you look at this all information on their website and OB 386 it only talk about the person eligibility to sponsor new spouse. Which mean all they are addressing to previous sponsored person. Because they are the one who have to check their eligibility to sponsor new spouse not the person who is going to be sponsored.

 

[zardoz]

This is the exact legislation, which applies to applications submitted NOW. There is NO reference to previous applications or the date on which they may have been submitted.

http://laws-lois.justice.gc.ca/eng/regulations/sor-2002-227/section-130.html

130 (1) Subject to subsections (2) and (3), a sponsor, for the purpose of sponsoring a foreign national who makes an application for a permanent resident visa as a member of the family class or an application to remain in Canada as a member of the spouse or common-law partner in Canada class under subsection 13(1) of the Act, must be a Canadian citizen or permanent resident who
(a) is at least 18 years of age;
(b) resides in Canada; and
(c) has filed a sponsorship application in respect of a member of the family class or the spouse or common-law partner in Canada class in accordance with section 10.
Marginal note:Sponsor not residing in Canada

(2) A sponsor who is a Canadian citizen and does not reside in Canada may sponsor a foreign national who makes an application referred to in subsection (1) and is the sponsor’s spouse, common-law partner, conjugal partner or dependent child who has no dependent children, if the sponsor will reside in Canada when the foreign national becomes a permanent resident.
Marginal note:Five-year requirement

(3) A sponsor who became a permanent resident or a Canadian citizen after being sponsored as a spouse, common-law partner or conjugal partner under subsection 13(1) of the Act may not sponsor a foreign national referred to in subsection (1) as a spouse, common-law partner or conjugal partner, unless the sponsor has been a permanent resident, or a Canadian citizen, or a combination of the two, for a period of at least five years immediately preceding the day on which a sponsorship application referred to in paragraph (1)(c) is filed by the sponsor in respect of the foreign national.

What the "OB 386" is actually saying is that the legislation is not retroactively applied to sponsorship applications already in the system, when the legislation came into force on March 2, 2012.

You are "clutching at straw" my friend...

 

[F-Ray]

Just to add, I believe there have been a few cases on this forum where people stated they were rejected under this exact situation.

I know i heard that too and i am also going through this but the only thing i am not giving up and keep asking the same question "but i never get explanation from them specifically addressing to OB 386" then i talk to different immgration lawyers they are also having the same opinion like mine. Thats why in this whole scenario the key words are "eligibility to sponsor" and that means addressing to the person who is going to sponsor new spouse

 

[scylla]

I know i heard that too and i am also going through this but the only thing i am not giving up and keep asking the same question "but i never get explanation from them specifically addressing to OB 386" then i talk to different immgration lawyers they are also having the same opinion like mine. Thats why in this whole scenario the key words are "eligibility to sponsor" and that means addressing to the person who is going to sponsor new spouse

We've seen several people on this forum argue exactly the same thing you're trying to argue. They were refused.

Your money - go ahead and apply if you want to.

 

[Rob_TO]

I know i heard that too and i am also going through this but the only thing i am not giving up and keep asking the same question "but i never get explanation from them specifically addressing to OB 386" then i talk to different immgration lawyers they are also having the same opinion like mine. Thats why in this whole scenario the key words are "eligibility to sponsor" and that means addressing to the person who is going to sponsor new spouse

Doesn't really matter how you or your lawyers interpret the rule, the only opinion that matters is that of IRCC. And we have clearly seen them enforce this rule in a few cases now contrary to how you see it.

 

[F-Ray]

This is the exact legislation, which applies to applications submitted NOW. There is NO reference to previous applications or the date on which they may have been submitted.

http://laws-lois.justice.gc.ca/eng/regulations/sor-2002-227/section-130.html

What the "OB 386" is actually saying is that the legislation is not retroactively applied to sponsorship applications already in the system, when the legislation came into force on March 2, 2012.

You are "clutching at straw" my friend...

Yeah my friend, my argument is on OB 386 because that talk about who are under section 130 and who are not.

At the same time on OB 386 says previously sponsored spouse and then their eligibility TO sponsor (as i said earlier word TO is indication of future applications not under processing​ application while this law came into force and also it has notting to do with the new spouse eligibility requirements )

 

[F-Ray]

Doesn't really matter how you or your lawyers interpret the rule, the only opinion that matters is that of IRCC. And we have clearly seen them enforce this rule in a few cases now contrary to how you see it.

Because this kind of case never went to the court yet...

 

[zardoz]

Because this kind of case never went to the court yet...

it doesn't need to go to court. The legislation is very clear, regardless of how you (mis)interpret "OB 386". It is ONLY the exact wording in IRPA and IRPR (as amended by Ministerial Instructions, where permitted), that applies. Operational bulletins are not legal documents.

It's also clear that you are not interested in any response that fails to support your misinterpretation.

 

[F-Ray]

it doesn't need to go to court. The legislation is very clear, regardless of how you (mis)intetpret "OB 386". It is ONLY the exact wording in IRPA and IRPR (as amended by Ministerial Instructions, where permitted), that applies. Operational bulletins are not legal documents.

It's also clear that you are not interested in any response that fails to support your misinterpretation.

I am sorry as i said i might be wrong and it is an open discussion and thats why i am still looking for right answer but at the same time i agree with your point which i believe is very strong that OB 386 is not a legal document. Which make more sense

Thanks

 

[scylla]

I am sorry as i said i might be wrong and it is an open discussion and thats why i am still looking for right answer but at the same time i agree with your point which i believe is very strong that OB 386 is not a legal document. Which make more sense

Thanks

It will take longer for you to apply before you qualify, be refused, appeal, go to court, etc. - than it will to just wait until 2018 to apply when you're eligible. But again, your money and your life.

 

[F-Ray]

It will take longer for you to apply before you qualify, be refused, appeal, go to court, etc. - than it will to just wait until 2018 to apply when you're eligible. But again, your money and your life.

You are right and i really appreciate your advice. What you think about forward the application even a person is not eligible atleast i have a chance to appeal then let's see what the judge say atleast it will help others..

 

[jamali]

Because this kind of case never went to the court yet...

You should check out www.canlii.org This issue has been addressed and the rule has been interpreted in federal court:

https://www.canlii.org/en/ca/irb/doc/2016/2016canlii87360/2016canlii87360.html?searchUrlHash=AAAAAQAGMTMwKDMpAAAAAAE&resultIndex=1

If you want to look at more cases, just do a search for section 130(3)

 

[zardoz]

You should check out www.canlii.org This issue has been addressed and the rule has been interpreted in federal court:

https://www.canlii.org/en/ca/irb/doc/2016/2016canlii87360/2016canlii87360.html?searchUrlHash=AAAAAQAGMTMwKDMpAAAAAAE&resultIndex=1

If you want to look at more cases, just do a search for section 130(3)

Perfect. Well found. +1 for your efforts. This completely supports what we have all been saying.

 

[zardoz]

You are right and i really appreciate your advice. What you think about forward the application even a person is not eligible atleast i have a chance to appeal then let's see what the judge say atleast it will help others..

Forget it. As an ineligible sponsor, there is no Family Class H&C aspect to be considered.

 

[Rob_TO]

You are right and i really appreciate your advice. What you think about forward the application even a person is not eligible atleast i have a chance to appeal then let's see what the judge say atleast it will help others..

What a colossal waste of time. It will take probably a year just to be rejected, and then another 2 years just to get your appeal heard which will also be rejected.

Meanwhile you could just wait far less time to no longer be bound by this rule, and simply sponsor your spouse when you're actually eligible.