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Ask Tito Mike by Michael Scott  

Excluded relationships and family sponsorship

by Michael Scott

Does it seem at times that everyone has an opinion about family class immigration? This should not surprise anyone because all newcomers, from the Philippines for example, have some firsthand experience with Canadian immigration. Many have followed the law and program guidelines and have experienced minimal problems immigrating to Canada. Then there are the others who have experienced all manner of problems and challenges.

My topic is the question of what happens to people who lie about their marital status or do not disclose biological children and then later want to sponsor them under the family class. This question is not uncommon and the spectre of the “secret marriage” or undeclared children remains a defining characteristic of applications from the Philippines. Why else does IRCC request National Statistics Office (NSO) stamped and authenticated CENOMAR or Advisories on Marriages? Undeclared relationships and children represent a major challenge for the families concerned as well as for the licensed immigration consultants and lawyers who are hired to help out.

First, all readers should understand that in the immigration world there is no reward for telling lies or misrepresenting your status. The “obligation to answer truthfully” is set forward in the Immigration and Refugee Protection Act and Regulations: “a person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires,” IRPA s. 16(1). A failure to honestly disclose marital status or biological children can have a negative impact on not only the person you are trying to sponsor under family class, but also on the sponsors themselves, if they have lied.

The non-accompanying family members who were not disclosed on an application for permanent resident will become an “excluded relationship” and someone who cannot be sponsored to Canada. “A person shall not be considered a member of the family class by virtue of their relationship to a sponsor if …(d) subject to subsection (10), the sponsor previously made an application for permanent residence and 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,” IRPR s. 117(9)(d). This is not good news for the applicant and runs counter to the bad advice given to many applicants to not worry about secret marriages or children until you are landed in Canada. Sound familiar? The marriages are not secret nor are the children. The problem could have been avoided by telling the truth.

This does not mean that there is no hope at submitting a sponsorship of an excluded family member. It can be done but it comes with risks. First, there is the question of disclosure because the sponsor must reveal that he or she failed to include the applicant in their application for permanent residence and this opens them up to inadmissibility challenges on the grounds of misrepresentation under IRPA section 40. Yes, permanent residents and even Canadian citizens can be challenged on lies they told in the past – in this case, relationships or children they failed to mention.

On the other hand, the sponsorship of the family member who appears to be a member of an excluded class can be mitigated for humanitarian and compassionate considerations, under section 25 – especially the “best interests of the child.” There is no guarantee that such an explanation will satisfy immigration authorities but this is an opportunity for the applicants and sponsors to explain themselves and convince immigration authorities that they deserve special consideration or exemption from the exclusion definition.

If the applicant was unaware, as many are, of the options open to them, then there is a strong likelihood that the outcome will be a refusal decision. However, Immigration does give the Canadian sponsor a chance to appeal the refusal under IRPA section 63(1), but the grounds for appeal are very limited.

Any appeal must be submitted to the Immigration Appeal Division (IAD), which has the authority to hold a hearing in a location closest to the sponsor, but the reader must be mindful of the limited grounds on which an appeal may be filed. “IRPA section 67 (1) to allow an appeal, the Immigration Appeal Division must be satisfied that, at the time the appeal is disposed of, (a) the decision appealed is wrong in law or fact or mixed law and fact; (b) a principle of natural justice has not been observed.” If this looks daunting, consider the limited time the sponsor has to respond “no later than thirty days.”

What should we learn from the above? First, it is important not to lie on any immigration application. Second, if the sponsor has lied, then he or she should get good advice before submitting the sponsorship application. There are chances within the law, depending on each case, but these must be explored carefully and presented. If the submission has already been challenged or refused is even more reason to get help. It would be advisable to engage the services of a licensed immigration consultant or immigration lawyer on these matters. It is easy to put yourself in trouble, but no so easy to get out.

Michael Scott BA (Hon), MA, is a 30-year veteran of Canada Immigration and the Manitoba Provincial Nominee Program who works as an immigration associate with R.B. Global Immigration Consultants Ltd. (204) 783-7326 or (204) 227-0292. E-mail: mscott.ici@gmail.com.

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