TRV refused for child of permanent residents

[badicioiu]

Hi ,
I was refused a TRV visa for my child for which I already applied for sponsorship and the officer gave two reasons he is not convinced that my child would leave Canada:
-family ties in Canada an country of origin
-intended migrant

Here it is an excerpt from CIC website :
"An applicant applies for a temporary resident visa (TRV) to visit Canada but is denied solely because they have a family class application for permanent residence in process. In the refusal letter, the officer states that because the applicant is pursuing permanent residence, the officer is not satisfied that the applicant will leave Canada at the end of the period authorized as required by A20(1)(b). The officer has made an error. A22(2) precludes denying an application for temporary status on the basis that there is an outstanding permanent resident application, if the officer believes that the applicant will leave Canada at the end of the period authorized for their stay. If the permanent resident application is finalized after the issuance of the TRV, the applicant would be authorized, on the basis of the permanent resident visa, to remain in Canada."

It is obvious that somebody with an family sponsorship application has strong family ties in Canada and is an intended migrant. So the solely reason that made officer refused the TRV is the family sponsorship application. But this is an error, as CIC says.
How to make them reconsider the application on this light? If I submit a new application with the same documents probably it will be refused again.

 

[mmadsen55]

This seems to be a case of where the way some rules are written it makes it very confusing.

It was refused because the officer was not convinced they would leave at the end of the term.
The reason he was not convinced is because not enough family ties in home country and they have an intent to migrate.

The rule

The officer has made an error. A22(2) precludes denying an application for temporary status on the basis that there is an outstanding permanent resident application, if the officer believes that the applicant will leave Canada at the end of the period authorized for their stay

I think the intent of the rule is that the reviewing officer cannot simply dismiss an application without any consideration for whether or not they will return home just because an application is in progress.

Strong family ties in Canada, where they are looking to visit is a bad thing actually. It gives more reason to believe they may not return to home country.

 

[badicioiu]

The officer has stated the reason why he doesn't believe the applicant would leave Canada is family ties and migrant intent. Having an family sponsorship application in progress it implies strong family ties in Canada. It also implies migrant intent. Following this its obvious that having a family sponsorship in progress it's just enough for a visa refusal , right?
But on the CIC website it's written that this should not be assumed. In this cases "bona fide" should be evaluated, as CIC says. But CIC says something and does other things.

 

[AnaMaria]

Hi Badicioiu

Sorry to hear that. It seems you are missing the sentence Mmadsen has highlighted.

if the officer believes that the applicant will leave Canada at the end of the period authorized for their stay

Obviously your child has very strong ties to Canada and intention to migrate to Canada. But if the officers see that your child has very strong ties back home, he/she may be granted the visa. From your posts, I do not see if your child has any strong ties back home. As your child has strong connection to Canada, she/he has to prove much stronger ties to your home country.

 

[Pippin]

Look at DUAL INTENT. Canada recognizes that a person can have an immigration application in process AND apply for a TRV as well, but it is STILL a TEMPORARY visa. In order to get ANY temporary visa one must prove they will leave Canada before the expiry of the visa. What ties does your child have in the home country? All so frustrating. When you reapply and write your cover letter, address Dual Intent and that if your immigration application is not completed before the date of visa expiry, your son will return to the home country as you do not want to jeopardize your application. Are you also thinking that you could apply for a TRV extension before it expires? I hope you get a happy conclusion soon.

 

[badicioiu]

Look at DUAL INTENT. Canada recognizes that a person can have an immigration application in process AND apply for a TRV as well, but it is STILL a TEMPORARY visa. In order to get ANY temporary visa one must prove they will leave Canada before the expiry of the visa. What ties does your child have in the home country? All so frustrating. When you reapply and write your cover letter, address Dual Intent and that if your immigration application is not completed before the date of visa expiry, your son will return to the home country as you do not want to jeopardize your application. Are you also thinking that you could apply for a TRV extension before it expires? I hope you get a happy conclusion soon.

This is the base I've made the application for TRV. I showed to them I have an PR application for my child in progress. Guess what - the second reason was "you are an intended migrant".
On DUAL INTENT regulations, I think they shouldn't even mentioned.
I also stated in my cover letter that I request the visa only for visit and I know that is only temporary; I stated that I know that the only way to reunite family is the legal one and I'm committed to follow it. I was not enough. It was not enough that I have so many and all kind of visas in my passport from Canada and USA. Would this be a valid reason for them to issue a visa? : "Dear officer, I always respected all immigration laws, anywhere in the world. But I think you already know this because you saw my passport so many times. You know all about me because you gave me PR visa. Is this enough for you to believe I will respect the law this time? Would be enough for you to believe I love my child so much and I will never make her an illegal immigrant?"
Unfortunately, their decisions are so arbitrary sometimes and cause so much frustration for too many absolutely decent people.

 

[badicioiu]

Hi Badicioiu

Sorry to hear that. It seems you are missing the sentence Mmadsen has highlighted.

Obviously your child has very strong ties to Canada and intention to migrate to Canada. But if the officers see that your child has very strong ties back home, he/she may be granted the visa. From your posts, I do not see if your child has any strong ties back home. As your child has strong connection to Canada, she/he has to prove much stronger ties to your home country.

This cannot be an objective and in itself a reason to deny a visa. This is just a reason to believe something. And people tend to believe what they like to.
IRPA says that all applications for visas must be judged respecting Canadian Human Rights Act. Here is an excerpt from CHRA:

3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.


What is family status here? My child was born to wo Canadian PRs, is this a family status for her or not?

 

[Pippin]

This is a very sad case, but you have not shown us any ties your child has to his/her home country. I doubt the visas in your passport will have any impact on the VO assessing your child's application. How old is your child? Attending school? Working? Can you tell us a bit more?

 

[badicioiu]

This is a very sad case, but you have not shown us any ties your child has to his/her home country. I doubt the visas in your passport will have any impact on the VO assessing your child's application. How old is your child? Attending school? Working? Can you tell us a bit more?

She is a 7-months old girl. My spouse which is her mother also is on maternal leave , she has ties in the home country having a job. Her mother employer must keep the job until December 2013, this is the regulation. Also grandparents are in the home country. Are these ties strong enough for them in this case? Even the letter is addressed to the baby...so I suppose they ignore the fact that this person, the baby, cannot do anything by herself. The officer must asses in this case what I would do in this case. I can prove that I respected any terms of my stay anywhere I traveled.
Please note that the refusal letter says "family ties" not just "ties".

 

[Pippin]

Sorry I don't have any brilliant ideas right now, but I want to recap to make sure I understand the facts and maybe it will help others think of solutions.
You and your wife, both Permanent residents of Canada, but not living in Canada???? (Please provide information) Seven months ago had a baby girl in the home country. (Why not in Canada?) The wife and baby are still in that other country and the wife is on mat leave until she returns to work where she must continue working until December 2013. What I don't understand is, where do you live and work? If the mother has to remain where the baby is until Dec 2013, why are you anxious to get a TRV? Is it for the duration of the Maternity Leave so your wife can join you in Canada? Will the mum and baby return to the home country prior to the end of the mat leave in preparation for the return to work? Will Grandparents provide childcare while your wife works?? If this is the case, was it clearly spelled out in the application? To show that the mum must return to work "as per regulations" (show proof of the regs and letter from employer outlining when she will return). At first I thought, what ties would a baby have? Ties would be to the mother most likely, so showing HER ties to the home country becomes essential. But I guess the VO could still say what's to stop the Mum from walking away from her job after the materinity leave if she is a PR already? Are you concerned about the number of days spent in Canada in the five year period?
All for tonight. Let's see what others have to say. All the best.

 

[badicioiu]

Thank you for trying to help.
The facts are simple : we became PRs in 2010 June and lived abroad and had the baby abroad. I came here in June, got everything required for a sponsorship application and applied for sponsorship. The mother lives now with the baby at her parents and obviously she has to return here until June 2013 in order to keep PR status. She is now in paid maternal leave until the end of this year and she has the option to get another unpaid maternal leave year. This is the situation.
The point in getting a TRV is that I want to be together with my family during the sponsorship and this is possible and it should be legitimate too according to Canadan laws.
Or I'm wrong? Is this a thing forbidden by CIC?

The other point is that evaluation of our TRV application was wrong because "Intended migrant" reason was provided. It's obvious that this reason counted in the refusal decision. You don't mention a reason if it doesn't count. This is a clear indication of misjudgment.
Here is what OP-11 says:
"Assessing an application where there are dual intent implications is no different from assessing any other temporary resident application."

The second point is the first reason. Judging family ties in themselves, this looks like discrimination under CHRA. Assuming that no discrimination against CHRA regarding the family status was made, the officer didn't see that I have all the reasons, possibility and credibility to return the child to home country at the end of legal stay period.
Maybe I did not clearly stated all of these.
But no matter what an applicant states or shows, an officer believes what likes to or is trained to believe.
And what is the most sad thing in all of this story is that they do this to a person that pays thousands of dollars each month taxes.

 

[AnaMaria]

Very sorry to hear your story. Very sad indeed. I am not well versed at throwing any useful comments and I hope some senior members have some advises.

In the meanwhile, I sincerely wish the PR application for your baby would be approved very quickly.

 

[badicioiu]

Very sorry to hear your story. Very sad indeed. I am not well versed at throwing any useful comments and I hope some senior members have some advises.

In the meanwhile, I sincerely wish the PR application for your baby would be approved very quickly.

PR doesn't have chances to be approved soon, not this year I think. I read stories with lost files and things like this...I have no time for that. My flight back is already booked, if I don't get TRV, then my way is out.

 

[badicioiu]

Digging through OP-11 document I found a list of thing assessed by VOs : against TRV and pro TRV:
Against:
What ties do you have with
Canada?
• Who invited the person to
Canada? Is there proof of an
invitation?
• What family does the person
have in Canada? What is their
immigration status in Canada

Pro:
What ties do you have with
your country of residence?
• Is the person employed? If
yes, at what salary? In what
position? Has the applicant’s
employer approved a request
for leave?
• What family does the person
have in the country of
residence? Where were they
at the time of the application?
• Does the person have
property? What is the value of
the property?
• What financial obligations is
the person leaving behind?
What is the nature and value
of these obligations?
• What other responsibilities
and obligations is the person
leaving behind? How will they
be discharged?
• Is travel consistent with local
customs or practices? Has the
person travelled before?


Well, lucky me ...
Pro TRV:
- my wife has : a good job, possibility to travel as she is on maternal leave, mortgage and car loan on her name. I assume that they will judge the baby not by me, but by the mother. Also we have the grandparents who have their own properties.
Against TRV:
- father/mother Canadian PRs
But one thing that goes against is that my wife wasn't call for an interview. And there is a note in OP-11:
"An applicant should never be requested to attend an interview if it is evident through a review of
the paper application that the applicant is ineligible and additional information would not alter a
refusal decision."
So they considered my baby ineligible to TRV no matter what information I would bring in addition.
So should I waste my money or not?

 

[OhCanadiana]

It is common that TRV applications are denied for young children of PRs since you have compelling reasons to stay in Canada (otherwise your sponsorship application would need to be denied since you don't intend to live in Canada, you wouldn't have become PRs, and wouldn't be able to retain status) and it is generally unlikely that the parents will leave their established lives in Canada to keep the baby in status. Therefore, the long term intent is immigration (you've already applied for sponsorship) and dual intent requires proving that you will leave Canada when the TRV status expires.

However, since you have applied for a TRV and have a rejection letter, you may now apply for a Temporary Resident Permit - TRP. The TRP is for people who are not otherwise admissible to Canada and therefore have had TRVs denied but who have H&C reasons to be admitted.

You can read some information on TRPs here on CIC's website . You'll need to check with your local VO for specific instructions on how to apply for this based on your nationality and residency and will need to explain the compelling reasons that exist for the child to be admitted as part of your application.