The author was in Vancouver to handle an appeal to the Immigration Appeal Division (IAD) for a client who was found ineligible to sponsor his wife and newborn son for a period of 5 years due to a conviction of sexual assault. The ineligibility provision was introduced to support the objectives of the Immigration and Refugee Protection Act, to protect Canadians and foreign nationals from family violence. The client/appellant had to show that the circumstances merited relief, considering the seriousness of the offense, evidence of remorse/rehabilitation/insight, establishment in Canada, hardship in the event relief was not granted, and the impact of the Best Interest of the Child (BIOC) factors. After a review of the client's credible and compelling testimony, Minister's Counsel and the author reached a joint recommendation to allow the appeal.
Last week I was in the beautiful city of Vancouver to deal with an appeal to the IAD.
My client is a Permanent Resident; but was convicted of a sexual assault (s.271) -the facts revealed a transgression on the lower/lowest side of the spectrum and indeed, he received a suspended sentence and probation.
CBSA did not proceed against him in terms of inadmissibility; but IRCC found him ineligible to sponsor his wife (and newborn son) for a period of 5 years since the completion of an imposed sentence pursuant to Paragraph 133(1)(e) of the IRPR. The provision prevents sponsorship where there is a conviction against the sponsor for certain types of offences.
The IAD retains jurisdiction over appeals against (most) ineligibility provisions.
The ineligibility provision was strengthened in response to a case, CIC v. Brar 2008 FC 1285 where a man convicted of killing his brother's wife was allowed to sponsor his own wife. The provision is to support the objectives of the Act, that is to protect the health and safety of Canadians and to assist in the protection of foreign nationals from family violence. The intent of the legislators/executive seems contained in the Regulatory Impact Analysis Statement; they aimed to "send a message that family violence is not tolerated in Canada, and highlight the conditional nature of sponsorship".
At the IAD, the appellant needs to demonstrate that the circumstances warrant relief (notwithstanding that the legislators/Parliament have seen fit to restrict the right to sponsorship. This means canvassing the nature/seriousness of the transgression, evidence of remorse/rehabilitation/insight, establishment and family in Canada, hardship in the event relief is not granted, and whether there is/how BIOC factors into the assessment.
Thankfully, after review of my client's testimony, Minister's Counsel and I were able to come to a joint recommendation to allow the appeal.
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