Sponsorship refused by CPC-M. Please help.

[kyrie]

First off, please excuse my lengthy post. I want to make sure you have all the details while providing your feedback.

I just received my sponsorship refusal letter today from CPC-M.

The reason being "you did not declare your dependent to CIC at the time you submitted your own application for permanent residence nor he/she declared at the port of entry or at the local Immigration office when you were granted permanent resident status in Canada. Cosequently, he/she does not appear to be a member of the family class under Regulation 117(9) d."

I am horribly confused, and very sad.

I am in a same-gender relationship and had applied to sponsor my conjugal partner. This has been my story so far...

Oct 1996 - Met my same-gender conjugal partner while doing my graduate studies in India
(We did not stay together during this time; we stayed in our own parents' homes)
(During this time we were in a close same-gender conjugal relationship)
May 2001 - Left India to USA for post-graduate studies
Dec 2002 - Visited my conjugal partner for 4 weeks
Aug 2003 - Began working in the USA
Feb 2006 - Visited my conjugal partner for 4 weeks
Mar 2006 - Landed in Canada as a Skilled Worker from USA
(Could it be that the Immigration Officer felt that after almost 10 years of knowing each other, I should have declared my conjugal partner on my IMM0008?)
Mar 2006 - Returned to USA after 3 days
Jan 2007 - Visited my conjugal partner for 4 weeks
Feb 2007 - Changed jobs and began working for a new employer in USA
Mar 2008 - Applied for US visit visa for my conjugal partner, which was denied
Jan 2009 - Left USA; permanently migrated to Canada; began job search
Feb 2009 - Visited my conjugal partner for 3 weeks
Jun 2009 - Got a job and began working in Canada
Aug 2009 - Applied for Canadian TRV for my conjugal partner, which was denied
Oct 2009 - Applied to sponsor my conjugal partner
Nov 2009 - Received refusal letter + refund of fees (minus $75) + application returned

MY THOUGHTS: The decision does not seem right to me. I clearly remember reading that a conjugal partner is not supposed to be included when declaring family members on the IMM0008. I was under the impression that family members only included spouses, common-law partners, dependent children and children of spouses or partners.

I also checked Regulation 1(3) which says:

Definition of “family member”
(3) For the purposes of the Act, other than section 12 and paragraph 38(2)(d), and for the purposes of these Regulations, other than sections 159.1 and 159.5, “family member” in respect of a person means
(a) the spouse or common-law partner of the person;
(b) a dependent child of the person or of the person's spouse or common-law partner; and
(c) a dependent child of a dependent child referred to in paragraph (b).

However, Regulation 117(1) states:

117. (1) A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is
(a) the sponsor's spouse, common-law partner or conjugal partner;
(b) a dependent child of the sponsor;
(c) the sponsor's mother or father;
(d) the mother or father of the sponsor's mother or father...
...
...

I feel R1(3) is for assesing dependent family members for the IMM0008 and R117(1) is for assesing eligible candidates for family class membership. I can see where the Immigration Officer is coming from and I feel he/she is mistaken.

Please let me know what you think.

I am sad and in distress!

 

[Swede]

First of all, I'm very sorry you were rejected.

As you say, it seems that you not declaring your conjugal partner in your application is why you were rejected. Also, succeeding with a conjugal partner application is very difficult, since you have to prove that it was impossible for you to live together.

I don't know if you can appeal the decision or re-apply, explaining your situation, but it's worth looking into.

 

[kyrie]

Thanks, Swede. I'm aware negative sponsorship decisions cannot be appealed. They expect a re-application when the impeding factors have cleared. But you're suggestion to re-apply with an explanation for not declaring my conjugal partner sounds like the reasonable next step.

However, I just needed a confirmation from members of this forum about my current understanding and reasoning for not declaring my conjugal partner on my original IMM0008.

 

[RobsLuv]

I think it's a mistake to get bogged down in whether or not the decision to refuse actually adhered to the Act & Regs because I think I understand where they were coming from. Having applied as conjugal partners, you put the relationship is the context of one that had to be declared when you landed - and you didn't declare it. The "conjugal partner" qualification is defined very narrowly - the relationship is basically one that is qualified as a common-law partnership without the cohabitation requirement due to the couple providing sufficient evidence of their inability to marry or live together due to actual (or fear of) persecution or penal control as a result of the nature of their relationship (as in a same-s*x relationship where homose*uality is prohibited). So, if you had been able to successfully demonstrate that you qualified as conjugal partners (or common-law partners due to the cohabitation exception), you would also have demonstrated that your relationship was required to be declared before your landing so that your partner could be assessed as a family member under your original application. You're probably actually lucky that CPC-M made the refusal without sending the ap overseas for assessment because, IMHO, the application was still doomed to fail. Either the overseas office would have assessed you as qualified conjugal partners and would have also determined that the relationship needed to be declared, or (and I think this would have been the result) they would have found you not to meet the qualification at all and they would have refused on that basis. In addition, I think there are serious indications that the relationship would not have been deemed "genuine and continuing". Based on the info you provided in your timeline, CIC would have looked at a 13 year long relationship where, in the 8+ years since you left India, the two of you have only been in each others' company 3 times - for a total of less than 3 months cumulative. I believe they would have assessed that this application was "non-genuine" - or only for the purpose of obtaining permanent status in Canada for the foreign national. From CIC's perspective, "genuine" spousal/common-law/conjugal partner applicants do not let years go by without spending time together.

I don't know that anything will help you overcome a history that shows that you have not nurtured this relationship the way a genuine couple would have - and, yet, even if you can accomplish that, having declared yourselves "conjugal partners" back to 1996, you are always going to run up against not having declared that relationship in 2006 when you landed in Canada. Had you not applied as conjugal partners now, you maybe could have tried to marry and apply as spouses - and explain the time spent apart as simply the result of miles between you and an attempt to "move on" once you left India . . . and then finding that you couldn't live without each other . . . something of that nature . . . so that you could have argued that, at the time you landed, this was not a significant relationship (which would have been believable considering the fact that you only saw each other one time in the five years between your leaving India and landing in Canada). But you tried to make it a significant relationship to qualify it as one that made your partner eligible to immigrate and now I suspect that will come back to bite you over and over again.

Your best chance - contact a qualified immigration attorney and see if they can come up with anything to help you.

 

[kyrie]

Thanks, RobsLuv. Looking at the detail of your response, I really appreciate the time and thought you've put into your feedback.

You bring up a number of valid questionable issues with our relationship, which I had not thought of before. By your reasoning and chain of thought, I agree it would not seem genuine and continuing to CIC. That was an inevitable burden I knew I had to bear any which route I chose. However, I don't know why I'm so certain that I was so sure than conjugal partners were not to be included on the IMM0008.

Anyways, few points about why we chose conjugal class...
- We are in a same-s*x relationship and my partner lives in India where there are active penal codes banning homos*xuality
- We cannot get married in India (it is not allowed)
- We cannot get married nor live together here (my partner was denied visit visas in US & Canada)
- We could not live together in India (penal code restrictions, public scorn/scrutiny in India etc. and most importantly because I will be out-of status of my residency as I have already lived about 3 years out of Canada)
For the reasons above and with the hope of submitting emails, chat sessions, phone calls and photographs, I thought we were good candidates for this class. I always knew it was totally up to the discretion of the Immigration Officer examining our case.

I truly don't know of any other way -- spousal or common-law -- to be united with my partner.

But thanks again for your valuable feedback!

 

[The Littlest Hobo]

Hi Kyrie,
It might be an expensive option, but if you two can get visitor's visas for another place where they allow same-s*x marriages or civil unions, I believe there are a few more options now, certainly the Netherlands and Sweden come to mind as they are famously liberal but on Wiki it says Spain, Belgium, South Africa (you could catch a football match while you're there!), Norway, as well as a couple US states. Maybe you could have a weddingmoon I'd really expect that by now many of the Caribbean island resorts which cater to US/Canadian weddingmoons might also perform the ceremonies... Though maybe I give the world too much credit - horrifying to see that there are more countries in the world which would put you to death than allow you to marry...

By the way, if you are lookign for a way to save money on travel, you can try to find a free place to stay using couchsurfers.com or freeloaders.com, it's also a really fun way to visit a new place!

It seems like you could benefit from some good legal advice (this forum is hosted on an immigration lawyer's site, I sometimes forget that! LOL), and they can argue that the two definitions of dependents on the two different forms are different. I mean your logic is very clear!

Or maybe there are some political refugee-type routes you could take if there is any way to prove you cannot live your life peacefully together in India, or isn't there a special category or something that ends with "on compassionate grounds"? That sounds like it should apply for you...

Maybe you should talk to your MP and perhaps even some journalists... It's such a heart-breaking story and you seem so sweet, polite, intelligent, and well-spoken - it seems like something a Liberal or NDP candidate would LOVE to get their name associated with! :-D If you can get your happy ending out of it, then why not?

Well good luck and please keep us posted on your case.
TLH

 

[kyrie]

Awhhh...Thanks, TLH.

You've reminded me of an option I was thinking about when I began reading how potentially difficult the conjugal partner route can get. I will have to read up some more on getting married in a third country. I know it may be an expensive option, but if I have to do it to get my partner here, then that will probably be the last ditch effort I will make before I finally decide to give up my permanent residency and settle with my partner in India, despite the penal codes, public scrutiny, etc. etc. But that's not a life I'm looking forward to. Thanks for the websites and tips.

Also, I'll take your suggestion and contact my local MP. I have a feeling they'll tell me to get in touch with a good family immigration lawyer, just like RobsLuv has suggested. No harm in trying I guess. But I'm sure I'm not yet ready to be featured on an weekend special immigration section on the Toronto Star just yet! LOL

Inspite of all the reading and research I've done during the last couple of months, I think it's finally time for some professional legal advice. But thanks again for writing!

 

[The Littlest Hobo]

A flight to Amsterdam from Toronto is the same as 2-hours with a lawyer... Just sayin' ;-)

May love prevail!
TLH

PS Toronto Star? Never! Would be some little independent fringe thing with a tiny audience, maybe a gay rights rag or something, but still, could be just enough attention...

 

[kyrie]

You're funny, TLH!

It's nice during times like these when someone can put a smile on your face!

 

[marisol]

Hi Kyrie,

Im also in conjugal partner category. My partner did not include me in his application form during his application and even when he sponsored his first son. He only declared me as his conjugal partner when he was sending our application last March(he sponsoring his 2 younger sons and me). (Were now 10 years as partners). What he did was, he write letter for the reasons why he did not include me or declared me before: and his sponsorship was granted. now waiting for the result in singapore office and hoping my visa will be granted soon....

 

[kyrie]

That is so good to hear, Marisol! Yes, I too, included my partner on my recent sponsor application as there was a category to specifically choose from "conjugal partner". However, what was missing from my sponsor application was a written explanation of why I did not include my partner on my original PR application.

I don't remember reading anywhere about including such a letter (in my months of research on this and other forums), but I hope people can learn from my mistakes! It just added more delay, uncertainty & worry to the already dreaded, uncertain and worrisome conjugal class application process.

RobsLuv's post above raises valid questionable issues about our conjugal relationship. I will need to build a case to defend those allegations. It is a good read for other conjugal class applicants.

Thank you!

 

[tgchi13]

Kyrie,

This really is a wonderful place to find out what works (and what doesn't) and to learn from the success (and failure) of others in the same or similar situation.

Like in reapplying, since they'd found my partner ineligible I'd have previously been tempted to send all 14391 emails from the last two years and inundate them with proof. I now know better. This is a constant learning process and, unfortunately even if you provide a perfect application it still depends on the IO. I mean, would anyone else find our constant humor and banter charming part of the proof of our bond? What if they have a hangover or are in a bad mood or don't have a sense of humor at all, or just can't relate to ours. If you send emails showing a situation where the two of you worked together to solve a relationship problem, would they then assume there are relationship problems rather than that the couple will work through any difficulty together...

I know it's scary. Good luck and best wishes on reuniting with your partner, I'll keep positive thoughts in mind for you!