My client sought to bring her father, mother and two brothers to Canada under the family class. She herself came to Canada having been sponsored by her first husband. Soon after the birth of their daughter she started working in order to meet the income requirements to bring the rest of her family here. Her first husband co-signed the application, and combined, the couples' income met the requisite threshold at that time. Unfortunately her first marriage was marred by abuse and after the breakdown of that relationship, which saw her taking full custody of her child, move cities and struggle but succeed in getting back on her feet, her first husband advised CPC Mississauga that he would like to withdraw his support. As a result, for a short time my client was unable to meet the requisite financial threshold. However, she did her best, and in fact was working two or three jobs at a time to ensure that her income met the required thresholds; and not jeopardize the ongoing application to bring her parents and younger siblings to Canada.
Time passed and the application was being finalized. Rather than assess the fact that the sponsor had worked hard and maintained her income after a circumstance outside of her control the visa office simply refused the sponsorship based on a shortfall that occurred years ago, even though her subsequent income met the requirements. My client hired a lawyer here in Calgary to file the appeal, but ultimately the file was transferred to this office. While my client can speak English and has been living in Canada for close to a decade, it has been my experience that there is a certain degree of comfort when your counsel speaks the same mother tongue as you do. We provided additional disclosure to the Immigration Appeal Division. This disclosure included her other assets in Canada, proof of other family support and her family’s property, assets and available income back home. Another wrinkle presented itself. The goal posts were changed with the change in the Regulations subsequent to the filing of the application. The requirements for sponsorship after the two year moratorium in 2011 included meeting LICO plus 30% for all new applications. However, the new Regulations for increased income appeared to apply to appeals of sponsorship applications filed even before the new Regulations.
At the Hearing, I advanced the argument that the changes to the regulation that required a 30% increase to the minimum necessary income should not apply to my client, as her application clearly was submitted prior to the changes. I tried to argue, based on a great paper by counsel Ravi Jain out of Ontario. There were a number of arguments there that I sought to advance, however it does appear that the tide of jurisprudence, is going the other way. It seems clear that the IAD will impose the current regulations on financial refusal. In essence there are no transition provisions in those regulations to allow for the provisions of the former regulation to apply on appeal proceedings before the IAD.
As a result, in these cases, for all appeals based on all “old” applications where there was a shortfall from LICO, unless the sponsor meets the new threshold of LICO plus 30% (in which case the analysis is the so-called “Jugpall” dicta) success will be largely based on whether there are sufficient grounds for the IAD to find that there's grounds for the grant of special relief. This will turn on factors such as the objective of family reunification, the reason for the sponsorship, the nature and degree of the relationship between the Appellant (the sponsor) and Applicant (the family back home), the hardship to and impact on the sponsor, the hardship to and impact on the Applicant(s), and the best interests of a child(ren) directly affected by the decision.
In this specific case, the evidence before the Board was that my client became a permanent resident more than 10 years ago after a sponsorship by her then-spouse; the couple had a child together and the sponsor was accepted as a credible and believable witness who answered questions in a direct and straightforward manner. She had gone through a difficult time in her early years in Canada; she was feeling lonely and wanted to bring her family here. Prior to the breakdown of her first relationship, my client submitted the sponsorship co-signed by her then-spouse less than two years after she herself came into Canada. She got some bad advice on top of it all; her brothers continued to study, even though they wanted to work simply because a consultant advised them that they had to to remain members of the family class (dependent children). They didn’t have to keep studying. Based on the definition at that time, the sponsorship was “locked in” prior to either turning 22 and they didn’t have to study and could have started working (which probably would have assisted an appeal based on the overall financial circumstances of this family).
It became very clear at the hearing that my client has sacrificed a lot to bring her family here.
Less than two years after the sponsorship was filed, my client and her ex-husband separated and she received sole custody of the child. Her ex-husband withdrew his co-sign/support of the sponsorship. It was at that time that my client realized that there was a financial issue with respect to the sponsorship. However, for a number of reasons, including her personal circumstances and her strong relationship with her family, she desired even more to have her parents come and support her emotionally here. To try and meet the required income, she worked two or three jobs at a time. Her maternal grandmother and maternal aunt helped her with childcare. At the hearing she said that unlike some parents that got to see their children grow (vertically, as in height), she only say hers sleeping.
My client's circumstances have improved over the years. She remarried and her present husband attended the Hearing. He is not able to work as he is being sponsored at this time. She had another daughter. At the time of the Hearing she was on maternity leave, but was resuming employment with her employer of 10 years. There was evidence that my client, with the assistance of her family in Canada and her own hard work, was able to become a part owner in two rental properties. She was able to visit her family in India on two occasions. The uncontradicted and credible testimony was that she had a very close relationship with her family, and they have been in regular contact. The circumstances with respect to the family overseas included the fact that her father would be the recipient of a pension, and had assets there, including income from leased agricultural land.
In calculating the shortfall, it was important to determine the family size. There was another interesting wrinkle, as the sponsor remarried and has sponsored her spouse, but no decision has been made with respect to that application. The Board member, in his decision stated that the inclusion of the present spouse in the family size raises "an anomaly". If the present husband had received permanent residence status, then he could co-sign the application (his presence at the Hearing and the testimony of his wife, my client, was clear that he was supportive of this sponsorship) and could have his income included for humanitarian and compassionate purposes. Including him but not looking at his potential income would result in a family size of eight, and the required income would be over $89,000. The income for the previous year was a little over $64,000, and the Board member found that this was a significant shortfall from the required amount.
The Board member went through an extensive weighing of the factors. He found that the purpose of the sponsorship was family reunification, and that the sponsor had a close relationship with her family, and this was a favorable factor. However, he found that there would be minimal hardship and as a result found that to be a neutral factor. While he acknowledged the two children and only grandchildren of the parents from India would be "helpful", he found that the best interests of these children were minimally affected. He did, however, look to a prospective factor. He found that the earning potential of my client's husband would be a favorable factor. If it was unsuccessful, the family size would decrease and therefore reduce the shortfall. The Board member also looked to the assets and pension of the family in India, and seemed to look at the sponsor's current financial situation, her expenses, and the rental income from her properties here in Canada, and found that the funds would "seem sufficient".
The Board member noted that Section 67(1)(c) of the Act encourages a consideration of all the sponsor's circumstances. In his view, that allowed him to consider the overall financial responsibilities and income sources; which in his view was sufficient; one thing that I took away from, and will be very helpful for future appeals of this nature, is the Board member's comments regarding the minimum necessary income. He stated that " ... the MNI is simply a tool for gauging the Appellant's resources to support her sponsored relatives, and it is not determinative of an appeal brought on humanitarian and compassionate grounds ... ".
I am very happy for my client's success in this matter. This was a significant journey for her. This was an arduous odyssey of almost a decade. In that decade, she married at a very young age, came to a brand new country, gave birth to her first child and started working thereafter. After the traumatic end of her first marriage she was able to pick herself up and take care of herself and her daughter, moving to another city and finding and working two to three jobs. With the assistance of her extended family here she was able to amass some assets here, and of course the story does have a happy ending, including her remarriage, the birth of another beautiful child, and now of course, her parents and brothers finally able to join her in the country that she has made her own.
Finally, I think we need some changes to our Regulations. Applications to sponsor Parents take over 5, 6, 7 years. During this significant period of time (processing time frames and responsibility for same that rests with the Department) circumstances sometimes change back in Canada. There may be another child; there may be a period of maternity leave. We shouldn't make people despair at the birth of a child and start calculating how much more work they need to do to meet the financial requirements to bring the rest of their family here. A visa officer should be able to look holistically at the entire family's circumstances and have the discretion and some flexibility rather than all shortfall ending up at as appeals to the IAD.