How And Who Can Immigrate To Canada – Can the Canada Visa be rejected ?

Canada Immigration serves a basic entity for the continued economic growth bringing people of different religion, customs, traditions, rituals and culture to the forefront. Many programs are upgraded by many Canadian federals to make sure that immigration to Canada is a success for both the newcomers as well as for the people living in Canada.
Canada immigration

Canada immigration

      Certain queries that arise while starting the Immigration process are as follows:
1. What are the different immigration options available?
Immigration to a certain country can take place due to the economic and political factors, family re-unification etc. There are certain other Canada immigration options that allow you to embrace a better future in a country like Canada. Few of them are as follows:
·       The government of Canada grants permanent residence (PR) to the economic class that includes professionals, skilled-workers etc.
·       Canada accepts close to 8000 business applicants and provide permanent residence to nearly 25,000 immigrants.
·       Some people migrate to Canada under the Federal Skilled Trades Program. This program is a quota-based and is limited to only 3000 applicants annually.
·       Canadian citizens can sponsor their other family members to become Canadian Permanent residence.
2. How to start the immigration process?
You can take a look at the following steps to start the process of Canada Immigration:
·       Figure out which Immigration category you want to apply for
·       Ensure that you are eligible to immigrate to Canada
·       Follow the immigration advisor
3. Can the Canada Visa be rejected?
Every person, except few are interviewed before they apply for the Visa. The information is then reviewed thoroughly and the application is selected or rejected on the basis of the information provided by the applicant and the laws set up by the Canada federal.
      The Canada visa rejection can take place due to the following reasons:
·       Insufficient documents.
·       If the applicant has a bitter past, i.e. he/she is involved in drug or criminal activities, he/she will not be eligible for applying visa.
·       If the applicant did not demonstrate proof of adequate financial support
·       Misinterpreted a material fact or committing fraud to attempt to receive a visa can also cause Canada visa refusal.
4. Can we reapply after Canada Visa Rejection?
After you are found ineligible for Visa, you can reapply for Visa in future. With exceptions of few Canada Visa refusals, you must submit a new visa application and pay the fee again. The applicant must be able to present evidence of significant changes in circumstances since the last application applied.
5. Who qualifies for Canada Immigration Visa?
An applicant who has studied/worked in Canada, business people and people belonging to the Economic immigration category usually qualify for the Canada Immigration visa. An applicant can check for his/her eligibility by filling few online assessment forms which are evaluated without any charge.
6. What are the necessary documents to begin the Canada Immigration process?
The documents must include:
·       Birth certificates
·       Educational certificates
·       Marriage and divorce certificates(if any)
·       Passport
·       Police certificates
·       Employment reference letter
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About Canada immigration

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immigration Easier for the kids.

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Canada Immigration PR Status For Foreign Students And Family Sponsorship

How Canada immigration PR status is possible for foreign Students and Family Sponsorship Under  Saskatchewan Immigration Nominee Program , all are discussed in detail here lets have a look.
Currently, the following categories are open under Saskatchewan Immigration Nominee Program with yearly fixed quota (January to December):
Family Sponsorship (250 applicants) and
Students (Other Provinces 175 ( Category FULL), Saskatchewan 100) 
 
Family Sponsorship (250 applicants)

Eligibility
To be considered for the SINP Family Referral Category, you must:
1.      Have an offer of employment in Saskatchewan either in an occupation or trade in the NOC Matrix level “A” or “B”, or in designated trade in Saskatchewan.
2.      Have support from family household in Saskatchewan.
3.      Be between 18 – 49 years old.
4.      Have completed post-secondary education, training, or apprenticeship of at least one year in length that has resulted in a diploma, a certificate, or a degree.
5.      Have at least one year of work experience in the past 10 years in your intended occupation
6.      Have sufficient language proficiency in one or both of the official languages in Canada.
 Singh
Supporting family members include:

 

• Parents
• Daughters/sons
• Sisters/brothers
• Aunts/uncles
• Nieces/nephews
• First cousins
• Grandparents
• Step-family members / in- laws of the same relationship
A supporting family member in Saskatchewan can also support their spouse’s family relative.

Students

 images (1)
Students (Other Provinces 175 ( Category FULL), Saskatchewan 100)
 
The Student Category allows eligible post-secondary graduates to apply for Canada Immigration PR status under the SINP. There are two streams under the Student Category:
1.      Post-Graduation Work Permit Stream
2.      Master’s and PhD Graduate Stream.
Eligibility
Post-Graduation Work Permit Stream
You may qualify to apply for Canada PR, if:
1.      You have post graduate work permit from Canada immigration
2.      You have graduated with a certificate, diploma or degree in Canada of at least one academic year (eight months) of full-time study. If you have graduated in Canada from outside of Saskatchewan you must have worked for 12 consecutive months of paid full time employment in Saskatchewan after graduation. If you graduated from an institution in Saskatchewan, you must have worked for at least six months of paid employment in Saskatchewan.
* work experience in Saskatchewan may be on- campus, off-campus, co-op terms, graduate fellowships or work experience gained on a post-graduate work permit.
3.      You have an offer of permanent, full-time job from a Saskatchewan employer.  The job offer does not have to relate to your studies.
4.      If your job offer falls into a NOC C or D, you must have a minimum of IELTS score as follows: (listening 4.5, speaking 4, reading 3.5 and writing 4).
For jobs in Saskatchewan, please go to SaskJobs.ca.
Master’s and PhD Graduate Stream
You may qualify to apply for Canada PR, if:
1.      You have completed all degree requirements for an existing Master’s and/or PhD program of at least one academic year of study from the University of Saskatchewan or the University of Regina.
2.      You are applying within two years of completion of your degree
3.      You are applying from a country in which you have legal status.
4.      You intend to live in Saskatchewan and are able to demonstrate your intention with at least one of the following:
1.      Have at least six months of employment history in your field of training in Saskatchewan;
2.      Are currently employed in your field of training or have received a job offer in your field of training in Saskatchewan for a term longer than six months;
3.      You have enough money to sustain for a short time without work (you have $10,000 for yourself and $2,000 for each accompanying family members.
5.      If you do not have a job offer or if your job offer falls into a NOC “C” or “D”, you must have a minimum of IELTS score as follows: (listening 4.5, speaking 4, reading 3.5 and writing 4).

Canada Immigration through Saskatchewan Business & Farmer Immigration Program

Saskatchewan is one of the ten Canadian Provinces. The province nominates immigrants according to its local requirements for Canada Immigration status. The process involves two steps: The applicant first applies to Saskatchewan immigration for nomination. The application is then sent to Canada immigration who is responsible for checking health, security and other supporting documents.

Currently, the following categories are open under CANADA’ SASKATCHEWAN IMMIGRATION PROGRAM : FASTER AND EASIER WAY TO CANADA PR. Each category has yearly fixed quota (January to December):

1. Skilled Workers (3100 applicants)

2. Entrepreneur Category  (225 applicants (Category FULL)

3. Farm Owners / Operators (25 applicants)

4. Family Sponsorship (250 applicants)

5. Long Haul Truck Drivers & Hospitality sector (200 applicants)

6. Health Professions & Existing work permits (450 applicants)

7. Students (Other Provinces 175 ( Category FULL), Saskatchewan 100)

This article deals with Entrepreneur and farmer categories. For other categories, see other articles.

2. Entrepreneur Category – Eligibility :

There are four criteria in the SINP Entrepreneur Category that you must meet to be approved for nomination:

1. A minimum net worth of $300,000 Canadian Dollars (CAD).

2. Minimum three years entrepreneurial or relevant business management experience.

3. Intent to reside and actively invest in Saskatchewan.

If you are approved for nomination by the SINP – Entrepreneur Category, you will be required
to:

1. Have a minimum active investment of $150,000 CAD in the Province of Saskatchewan.  If you own less than 1/3 of the business, then your total investment must be worth at least $1 million CAD; and

2. Make a $75,000 Good Faith Deposit with the government to be returned after 2years.

3.  Farm Owners / Operators – Eligibility :

You must meet all of the following four criteria:

1. A net worth of CAN$500,000.

2. Refundable Cash Deposit of $75,000 with the government.  The cash deposit will be returned to you after 2 years if the terms of the Performance Agreement are met.

3. Mandatory visit to Saskatchewan

4. Farm operation knowledge and experience – you must prove education, work

experience and financial documents of  previous agricultural operations

5. The farm owner/operator category is limited to primary agricultural production. Agriculture-business operations may qualify under the Entrepreneur category of the SINP.

Young Farmer Stream of the Farm Owner/Operator Category:

Application Criteria: 

• Have a minimum personal net worth of $300,000

• Must be under age 40.

• At least three years farm ownership, farm management or practical farming

experience.

• You must provide a documented proposal for a commercial Saskatchewan farming opportunity based on research, consultations or formal coursework relevant to Saskatchewan agricultural conditions.  A qualified farming business must have a minimum of $10,000 CAD annual revenue in Saskatchewan.

• You or your spouse must have education and experience that allows you to supplement your farming income.

Nomination Requirements: 

• You must make a minimum equity investment of $150,000 CAD in a new or existing farming operation in Saskatchewan comprised of either capital assets (land, machinery) or working capital.

• You must make a $75,000 CAD refundable deposit into Saskatchewan government ($2,500 upon acceptance of application and $72,500 upon nomination).

• An exploratory visit to Saskatchewan that lasted at least five days prior to submission of your application.

• You must have practical farming experience with skills relevant to Saskatchewan farming conditions.

Skilled Workers Immigration to Canada through Saskachewan Investor Program

Saskatchewan is one of the ten Canadian Provinces. The province nominates immigrants according to its local requirements for Canada Immigration status. The process involves two steps: The applicant first applies to Saskatchewan immigration for nomination. The application is then sent to Canada immigration who is responsible for checking health, security and other supporting documents.

 
                            
 

Currently, the following categories are open under Saskatchewan immigration program. Each category has yearly fixed quota (January to December):

 

1. Skilled Workers (3100 applicants)

2. Entrepreneur Category  (225 applicants (Category FULL)

3. Farm Owners / Operators (25 applicants)

4. Family Sponsorship (250 applicants)

5. Long Haul Truck Drivers & Hospitality sector (200 applicants)

6. Health Professions & Existing work permits (450 applicants)

7. Students (Other Provinces 175 ( Category FULL), Saskatchewan 100)

 
 

1.

Skilled Workers – Eligibility :

You may qualify for Canada PR under Saskatchewan immigration program, if you have

An offer of employment in Saskatchewan either in an occupation or trade in the National Occupational Classification (NOC) Matrix level “A”, “B” or “0”, or in a designated trade in Saskatchewan (Skilled Workers/Professionals Sub-Category).

OR

Worked in Saskatchewan for at least six months on a temporary work permit either in an occupation or trade that is in the NOC Matrix level “A” or “B”, or in a designated trade in Saskatchewan excluding trades included in the Hospitality Sector Pilot Project (Existing Work Permit Sub-Category).

AND

In order to immigration to Canada You need to score 35 points on the following selection grid :

Criteria                                                   Total points                         Applicant’s  score
Education                                                    15
 

Master’s or PH.d degree:                          10

Bachelor’s degree                                           8

Diploma at least a year:                                   8

Experience but No formal education                     5

Experience in intended occupation:
2, 4, 6, 8, 10 points for                                         10
1, 2, 3, 4, 5  year experience

respectively

Experience in 2nd occupation:
1,2, 3, 4, 5 points for                                              5

1, 2, 3, 4, 5, year experience
respectively
 

Age 

<18 : 0 points

18-21: 8 points

22-45: 10 points                                                     10

46-55: 8 points

55> : 0   points

 
 

First Language 

Fluent: 7-10 Points

Well; 4-6 Points                                                 10

Poor: 0-3  Points

 

Second Language

Fluent: 4-5

Well: 2-3                                                             5

Poor: 0-1

 
Family
Mother / Father ;
Son/ Daughter; Step Son/                                    10
Step Daughter; Grandmother /
Grandfather;Brother / Sister
 
Aunt/ Uncle ; 1st Cousin and
step family members                                             5
and in laws of same
 
Previous Stay and support                            15
in Saskatchewan
 

Visit: 3 points

Work: 5 points

Study: 5 points

Employer: 0-3 points

Community: 2 points

 
 

Community Support                                          5

Additional points for employers

participating in community
support plan through government
 

Financial Resources                                            5

<10,000: 0 Point

10,000-20,000:   1 points

20,000-30,000: 2 points

30,000-40,000: 4 points

40,000> : 5 points

 
 

Total Score                                                        90

Medical Inadmissibility In Canada PR Applications

There are four grounds on which an applicant may become inadmissible for Canada immigration visa: Health, Security, Financial inability and Misrepresentation. The final process in a Canada PR application is health and security checks. Any applicant who fails medical or security checks fails to get Canada immigration status and is inadmissible into Canada. This article is aimed at providing reasons and remedies for medical inadmissibility.

Canada Immigration

What are the reasons for Canada immigration visa refusal on medical grounds?

There are three grounds on which an application for Canadian permanent residence may be denied on health grounds: An applicant’s health condition may be

1) danger to public health due to communicable disease.

2) danger to public safety due to mental disorder and

3) may impose excessive burden on Canadian healthcare and social services.

  1. Danger to public health
  • Active Pulmonary Tuberculosis (TB) and untreated Syphilis are considered a danger to public health unless they are treated according to Canadian standards; HIV positive is not considered danger to health.
  • In cases of inactive Pulmonary Tuberculosis (TB) and/or adequately treated syphilis, the officer may grant visa and put conditions on the applicant for medical surveillance or medication  in Canada.
  1. Danger to public safety

Serious uncontrolled and/or uncontrollable mental health problems such as:

  • certain impulsive sociopathic behaviour disorders;
  • some aberrant sexual disorders such as pedophilia;
  • certain paranoid states or some organic brain syndromes associated with violence or risk of harm to others;
  • applicants with substance abuse leading to antisocial behaviours such as violence, and impaired driving; and
  • other types of hostile, disruptive behaviour.
  1. 3.      Excessive demand on Canadian health care or social services

 

  • This provision is not applicable on a convention refugee or a spouse and a child of a sponsor. The spouse or a child of an inadmissible person is also exempt from this provision.

If an applicant is likely to impose a burden on Canadian health care or social services, he or she may be inadmissible. Excessive health care demand means expenditure more than the average health care costs of Canadians. For year 2013, the per capita health and social services cost for Canadians is $6285 per year. This amount is multiplied by the number of years required in the medical assessment for health care and social services,which is usually 5 years but not more than 10 years. Thus an applicant who is likely to spend more than $31,425 in 5 years on health care and social services will be inadmissible.

The ability and intent to defray the costs of health and social services by opting out of public services and availability of private insurance in some provinces is a positive factor to be considered by the officer. This factor is only relevant in out-patient health care and it is not relevant in publically funded in-patient health care since there is no cost recovery mechanism.(Deol v. Canada (M.C.I.) 2002 FCA 271 (ability to defray health care costs in in-patient cases irrelevant factor since most health care services are government funded, without cost recovery provisions), Companioni v. Canada (M.C.I.) 2009 FC 1315 (ability to defray health care and social services costs relevant factor in out-patient cases, if the applicant has ability to opt out of publically funded health care medication system by private insurance or otherwise), Hilewitz v. Canada (M.C.I.); De Jong v. Canada (M.C.I.) 2005 SCC 57, Colaco v. Canada (M.C.I.) 2007 FCA 282) (ability to defray social services costs is relevant factor).

 

Canada PR Applications to get Canada immigration status

Canada PR Applications to get Canada immigration status

 

Is a principal applicant inadmissible due to inadmissibility of his spouse or child on health grounds?

Yes, an inadmissible spouse or child of a principal applicant renders him or her inadmissible as well.

What is the procedure for medical refusals?

In every medical refusal, the officer gives 60 day notice to the applicant to comment on medical refusal before making a final decision. The applicant can request extension of time to collect necessary information and the officer may or may not grant extension. The officer must consider an applicant’s comments as per the provisions of Immigration to Canada and Refugee Protection Act and its regulations (IRPA).

What are the powers of or guidelines for an immigration officer?

 

The IRPA regulations 31 mandate that, an officer who is assessing the foreign national’s health condition shall consider

(a) Any report made by a health practitioner or medical laboratory with respect to the foreign national;

(b) The communicability of any disease that the foreign national is affected by or carries; and

(c) The impact that the disease could have on other persons living in Canada.

The IRPA regulation 32 mandates that an officer may impose, vary or cancel the following conditions in respect of any foreign national who is required to submit to a medical examination:

(a) to report at the specified times and places for medical examination, surveillance or treatment; and

(b) to provide proof, at the specified times and places, of compliance with the conditions imposed.

Summary

Excessive demand

If a condition requires more than $31425 on health care and social services, it is likely to result in Canada visa refusal on medical grounds. The convention refugees or spouses and children of a sponsor are exempted from this provision. For out-patient applicants, the cost mitigating capacity of an applicant can be considered. For in-patient applicants, the cost mitigating factor is irrelevant since there is no mechanism for cost recovery for government funded public health care system in Canada.

Danger to Public health

If an applicant has inactive TB or adequately treated Syphilis, the officer may grant Canada Immigration visa on conditions of medical surveillance in Canada. HIV is also not considered danger to public health, if spouses of HIV positive applicants are informed of this condition.

If an applicant has active TB or untreated Syphilis, the Canada immigration visa may be refused unless an applicant can be treated according to Canadian standards.

How A Deported Man Was Re-United With His Wife By Canada Immigration After 8 Years Separation?

Canada immigration requires Authority to Return to Canada (ARC) for those who have been deported from Canada. Here follows a sample of our ARC submissions to Canada Immigration that led to re-unification of a couple who was separated for 8 years.

FACTS – The relevant facts of this case are as follows:

  • On June 25, 2002 Mr Sandhu entered Canada without a valid visa and made a refugee claim. He entered Canada after residing in USA for 6 years without status.
  • On July 22, 2002, Mr Sandhu married to Parkash Kaur, a permanent resident of Canada.
  • On June 18, 2003, the RPD found that Mr Sandhu had abandoned his refugee case. As a result he was issued a removal order.
  • The removal order became deportation order after 30 days because the client did not possess a travel documents to leave Canada.
  • In February 2004, about 6-7 months after the removal order, MrSandhu was deported from Canada after receiving the travel documents.
  • On February 17, 2005, the client was interviewed by the Visa officer in New Delhi and his application for Permanent residence was rejected because the Visa officer found that the marriage of the client with Parkash Kaur was not genuine.
  • The client’s wife appealed the refusal to IAD, and on February 11, 2008, the IAD allowed the appeal, set aside the refusal of Visa office and ordered the Visa office to continue the processing of his application.
  • At page 5, para 1 of the CAIPS notes, the New Delhi Visa Officehas notified that MrSandhu has met the test and therefore his marriage with ParkashKaur was genuine in law.
  • As part of the client’s processing, the Visa officer requested the client to obtain Authorization to Return to Canada (ARC).
  • At Page 7 of the CAIPS notes, Fanny Ho, the Regional Program Manager, Inland Enforcement, Edmonton, CBSA, remarks that they have no objection to the issuance of ARC to the client because he was cooperative in applying for Travel document, waived PRRA and purchased his own ticket. On the same page of the CAIPS, it is indicated that the subject does not appear on CPIC and JOIN and therefore there were no security issues in his case.
  • At Page 8 of the CAIPS, the CIChas also recommended that the subject should be granted ARC because he was not a risk to the society and that he was cooperative with the CIC and the CBSA.
  • However, on June 4, 2009, the Canada Immigration Program Manager (IPM) at New Delhi Visa office denied ARC to the subject.The Canada Immigration Program Manager (IPM) denied ARC based on the fact that the subject entered Canada illegally, and remained in USA for 6 years without status.The IPM also noted that though there was no evidence of other criminal acts, the subject’s substantial history of violating law didnot convince him that he will present no risk to Canada.He also noted that he did not believe that the client will successfully establish himself economically in Canada should he return to Canada.
  • There is no security or health concern in this case as no such issue has been raised by the visa office, nor is there any adverse criminal or health record against the client anywhere to date.
  • Despite the subject’s genuine marriage with Canadian permanent resident wife, the IPM decided that there exists no compelling reasons to allow the subject to enter Canada.
  • Eventually, the subject filed an appeal with the Federal Court of Canada through Pace Law Firm against the refusal of ARC.
  • In error of law, the lawyers from Pace Law Firm, filed an appeal against the ARC refusal in the Federal Court, instead of the IRB.  The Federal Court had no jurisdiction to entertain the application as MrSandhu was a member of the family class. The proper avenue of appeal was IRB and not the Federal Court.
  • As a result, in Dec 2009, the leave for Judicial Review of the refusal of ARC was not granted by the Federal Court.
  • Consequently, the client changed his representatives and the case was transferred to our office.
  • The client was advised by our office to reapply for the spousal visa and, at present,the visa office has requested the client to obtain the ARC.
  • However,no updated concerns on the issue of ARC have been provided by the Canada Immigration visa office. Therefore, the client relies on CAIPS notes dated till Aug 20, 2009 with respect to addressing the ARC related concerns.

THE LAW : Relevant Act

The authority granted to the IPM is contained in subsection 52(1) of IRPA (the Act), which states:

If a removal order has been enforced, the foreign national shall not return to Canada, unless authorized by an officer or in other prescribed circumstances.

 Relevant Regulations

Failed refugee claimants such as the applicants are subject to removal from Canada once their claim has been finally determined. Section 223 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 (the Regulations) outlines three types of removal orders, namely, departure orders, exclusion orders and deportation orders.

Under subsection 224(2) of the Regulations, a foreign national who is issued a departure order must leave Canada within 30 days of the order becoming enforceable. Failure to do so results in the departure order becoming a deportation order.

SUBMISSION : The client requests grant of ARC because-

1. The 6-7 months delay in his departure from Canada (that transformed his removal order into deportation order) was not caused by him.

2. He was deported because he abandoned his refugee claim and waived his PRRA.

3. He was not a security or health risk to Canada

4. He has a compelling reason to return to Canada, that is, to resume his family life, which has been disrupted for 7.5 years.

5. A period of 7 years has passed between the infraction of the Immigration regulations and the present ARC submission. The infraction itself was a “not at fault” infraction that led to the transformation of removal order into a deportation order.

ILLEGAL ENTRY, REASONS FOR DELAY IN DEPARTURE AND ECONOMIC CONCERNS

The client respectfully submits that the IPM considered irrelevant factors in reaching his decision on ARC. The IPM considered subject’s illegal entry into Canada and lack of economic benefits to Canada from the subject,as reasons for denying ARC. However, the IPM ignored the relevant factor, that is, why the client did not depart from Canada within 30 days after the removal order?

The jurisprudence of our country  makes it abundantly  clear that the relevant issue in failed refugee cases seeking ARC is ‘what caused the delay in removal, that transformed the removal order into the deportation order, and certainly not the illegal entry of the applicant into Canada’. (Khakh v. Canada, 2008; Sahakyan v. Canada, 2004; Umlaniv. Canada, 2008).

As per the relevant legislation above, it is respectfully submitted that the client would not have been required to apply for ARC, had he departed Canada within the 30 days of the removal order. In other words, the IPM could not have raised the issues of client’s illegal entries into Canada and the US, had the client departed Canada within the time. The issue of client’s economic viability would have not been raised by the IPM, had the client departed Canada within 30 days of the removal order because an ARC is only required if the removal order becomes a deportation order after 30 days.

ILLEGAL ENTRY

In Khakh v. Canada (Citizenship and Immigration), 2008 FC 710 (CanLII),  the Federal court allowed the ARC refusal appeal in similar circumstances despite the subjects’ illegal entry into Canada. The couple in Khakh applied to immigrate to Canada under Provincial Nominee Program after being deported. Initially, they entered Canada illegally after 3 failed attempts to get a Canadian visa in India. Upon landing they applied for refugee status in Canada. When their refugee case was rejected, they left Canada after recourse to courts, which caused delay in their removal.

The differences between the instant case and Khakh are also significant. The Khakhs were not members of the family class whereas in the instant case the subject is a member of the family class. In Khakh, both the Visa office and the IPM consented against the ARC, whereas in the instant case the CBSA and CIC recommended in favour of ARC whilethe IPM decided against ARC. As such, the case at bar is a much stronger case in favour of the ARC.

The court in Khakh found at para 34 that Khakhs’ illegal entry into Canada should not have been  prejudicial to a grant of ARC because their illegal entry into Canada was done for the purpose of applying for a valid yet unsuccessful refugee claim,

…the IPM’s reliance on the applicants’ illegal entry into Canada in 2003, which along with their late departure in March 2006 combined to form the “multiple violations” referred to in the decision, was unreasonable in that no consideration was given to the applicants’ purpose for illegally entering Canada in 2003; namely file a claim for refugee protection, which, as stated in Sahakyan, above, they were entitled to do under the law. While respecting immigration laws is a legitimate policy consideration in the IPM’s exercise of discretion, the evidence before this Court establishes that the applicants’ only true violation was their failure to leave Canada within the time frame mandated.

Hence the truly relevant issue in the instant case is ‘what caused the infraction and not the illegal entry of the subject into Canada’. If the subject caused the infraction, the subject is liable. But on the facts of this case, the subject is not liable for the infraction. Therefore, an ARC request ought to be granted in his respectful submission.

With respect to the issue of illegal entry into Canada, the Khakh v. Canada is supported by Sahakyan v. Canada (Minister of Citizenship and Immigration),2004 FC 1542 (CanLII), 2004 FC 1542, 267 F.T.R. 126, at para 22, where Mr. Justice Harrington eloquently writes,

… No matter how [the applicant] got here, no matter how he may have pitched his chance of success, no matter that he wanted to join his brother, no matter his economic motives, he had the right under Part 2 of the Act to seek refugee protection in Canada. As the Regulations make clear, the fact that his application was not successful has no bearing on his right to seek permanent residence as an immigrant. All he did was run afoul of the timing requirements governing his departure from Canada, and yet he was not asked the reasons for that delay.

Thus the Canadian jurisprudence makes it quite clear that the relevant issue in failed refugee cases seeking ARC is not the illegal entry of the applicant into Canada, but it is ‘whether the applicant has any role in delaying or evading the removal order that transformed it into the deportation order.

REASONS FOR DELAY IN DEPARTURE

It is clear from the CAIPS notes that the client was cooperative and waived his PRRA rights in order to depart from Canada. His only fault was an administrative delay in getting his travel documents. This is clearly a “not at fault” infraction on part of the subject. He did not cause a delay in his departure and as such he submits that he should not be penalized for the delay.

ECONOMIC  CONCERN

The client is a bonffide spousal family class member, therefore, the economic viability of his immigration to Canada ought not to be an issue, for if that would have been an issue, he would not have been granted a bonafide family class member status.

Even if this is a concern, the client respectfully submits that he was new to Canada in 2002-03 and his jobless status at that time was not different from many other new comers who require time to assimilate into the job market.

Moreover,the client submits that his spouse was employed at that time, and he was not on social assistance at anytime. They jointly took care of all legal expenses for their immigration cases from their own savings and did not receive any legal aid.

COMPELLING REASONS

The client submits that his case has compelling reasons in favor of ARC because of his marriage to a Canadian permanent resident who had miscarriage in July 2007 in client’s absence.  The client and his wife have remained in two different countries for over 7 years despite being a bonafide married couple.The Operational Manual OP1, s. 6.2 directs the officers that,

“bonafide marriages” are examples of factors that would normally constitute a compelling reason for returning to Canada. However, no one factor alone should automatically serve to override concerns related to the safety of Canadians and security of Canadian society”.

In the instant case, there are compelling reasons for MrSandhu’s return to Canada to resume his family life. He is not merely seeking return to Canada to attend a family function or for a casual visit. Rather he is seeking return to Canada to fulfil his legitimate commitments to his bona fide wife. There are no overriding safety and security concerns in the case at bar as the client does not have a criminal record. As such an ARC ought to be granted.

PASSAGE OF TIME

The Operational Manual OP1 at s. 6.2 also directs officers to consider “how much time have passed since infractions that led to the removal order”. The client submits that the client was removed in Feb. 2004, about 7 months after the issuance of removal order in June 2003. However this delay was caused due to administrative delay in getting his travel documents from the Indian High Commission. The infraction therefore occurred without client’s fault about 7 years ago. The client submits that the 7 years time between the removal order and the present ARC application ought to be regarded as a sufficient time to warrant ARC.

In Umlani v. Canada, 2008,  the court, while allowing Ulmani’s appeal, regarded 6 years gap between the removal order and the ARC decision as significant, stating at para 63 of the decision that “the removal order against the Applicant took effect approximately 6 years before the Decision. There is no explanation as to why the Officer regards a 6-year gap as being of any significance or relevance on the facts of this case”.

The client has acknowledged that his behaviour was unlawful and unacceptable with respect to his illegal entry into Canada and the US, however, since March 2002, the client has not violated any term, condition or law. He has not attempted to enter any country illegally in the intervening period of last 9 years.

SECURITY  RISK

In conclusion, as in Khakh,at para 36,so in MrSandhu’s case it can be stated that,

…at no time in the IPM’s decision or the VO’s recommendation is any consideration given to the fact that deportation orders are often applied to those individuals who have been found inadmissible to Canada on various grounds including serious criminality, national security, or violations of human and international rights. Unlike in those situations, the applicants in the case at bar are not security risks, nor do they possess criminal records. While they entered Canada illegally, they made a valid, albeit unsuccessful claim for refugee protection. They now seek to return to Canada as immigrants, having already been found eligible as provincial nominees. Accordingly, in the words of Mr. Justice Harrington in Sahakyan, above, their only violation was to “run afoul of the timing requirements” governing their departure from Canada. It strikes the Court as unreasonable that the applicants would be denied authorization to return under such circumstances, especially considering that no consideration was given to their reasons for not departing Canada before March 2006.

Accordingly, in basing his rejection on factors not relevant to their delayed departure, and then not further considering the applicants’ reasons for such tardiness, the IPM erred in his decision. On this basis, the applicants’ application for judicial review in docket IMM-2342-07 must be allowed.

Summing up, it is similarly submitted in Mr Sandhu’s case that, at no time in the IPM’s decision is any consideration given to the fact that deportation orders are often applied to those individuals who have been found inadmissible to Canada on various grounds including serious criminality, national security, or violations of human and international rights. Unlike in those situations, the client in the case at bar is not a security risk, nor does he possess criminal records. While he entered Canada illegally, he made a valid, albeit unsuccessful claim for refugee protection. He now seeks to return to Canada as an immigrant, having already been found eligible as a bonafide spousal family class member. For all these reasons, Mr Sandhu seeks the minister’s authority to Return to Canada.