Morley Law Office

Canadian Immigration Lawyer Kingston

Currently Viewing Posts Tagged Parents

What’s Sauce for the Goose is not Sauce for the Gosling

WHEN THE IMMIGRATION AND REFUGEE BOARD considered the refugee claim of Jkwon Jaheim Corneille and his mother Jeannette Corneille, Jkwon was only eight years old.  During the hearing his mother maintained that she and Jkwon were persecuted in their native St. Lucia because Jeannette is a lesbian, and thus that she and he should be allowed to remain in Canada where they would be protected from such persecution.  The claim of both mother and son were heard together.

Homosexuality is illegal for males in Saint Lucia.  The island nation is the only UN member in the Americas to formally oppose the UN declaration on sexual orientation and gender identity, and it maintains on the books some antiquated and discriminatory laws respecting same sex relationships.  Still homosexuality is not illegal for females in St. Lucia.

Jkwon’s mother acted as his designated representative at the hearing, as he was a minor who was deemed to be unable to appreciate the nature of the proceedings, but both she and Jkwon testified.  In his testimony Jkwon spoke about the violent victimization of his mother, the gibes and derision he had experienced at school, and the nightmares he had as a result of their treatment.  The Board was also presented with an independent letter describing Jkwon having been beaten at school.

The Board disbelieved Jeannette’s testimony.  Jkwon’s was discounted because of his age.  The value of the letter was determined to be minimal because reference had not been made to it in the written outline of Jeannette’s claim filed when refugee status was first requested.  In the circumstances, the claim was rejected.

In reviewing the Board’s decision, however, Federal Court Justice O’Reilly found that the Board had failed to consider Jkwon’s testimony independently of that of his mother.  While what she had said had been rejected as untrue, the Court stated that that did not mean that Jkwon’s testimony was untrue.  The Court described St. Lucia as an “overtly homophobic country”.  It concluded that despite doubts about his mother’s credibility, Jkwon’s testimony might have supported a conclusion that he could be persecuted if it had been assessed properly, independent of his mother’s.

In the end the refusal of Jkwon’s claim was set aside and another panel of the Board was ordered to reconsider his claim.  The decision reminds us that, where multiple refugee claims are heard together, each claim must be assessed independently.  It also reminds us that, as difficult as it may be for them at the time, it is valuable for minors to testify as to their own experiences at their refugee hearings, and to file as much corroborating documentation as possible.

You can find the decision in the Corneille case here.

It’s a Bird, it’s a Plane, it’s Super Visa!

IF YOUR MOTHER lives in Kenya, your father in Argentina, or your grandparents in Tanzania, you could expect to  wait over eight years to sponsor them to immigrate to Canada after filing an application to do so.  In the meantime, getting them here for visits with their children or grandchildren could be a serious challenge.

On November 4, 2011 the Government of Canada announced the creation of a new program to address the problem it calls Phase I of the Action Plan for Faster Family Reunification.  The new program, which was authorized as a ministerial instruction under subsection 87.3(6) of the Immigration and Refugee Protection Act,  facilitates the coming to Canada of parents and grandparents of Canadian citizens and permanent residents.If the situation overseas is unstable, your elderly relatives infirm, or your children in need of  the love of a grandparent, processing times like these can seem interminable.

The problem, according to the Government, is that there are some 165,000 applications for the sponsorship of parents and grandparents waiting in the queue for permanent residence, with another almost 40,000 applications being added to that number every year.  Given limited manpower resources to process applications, and the practice of giving priority to the applications of spouses, dependent children and skilled workers, wait times for the processing of the applications of parents and grandparents threatens to become “completely unmanageable”.The solution implemented by the Government has four parts:

  1. It will increase the number of parents and grandparents admitted to Canada from 15,500 (2010) to 25,000 (2012);
  2. It has introduced a new “Parent and Grandparent Super Visa”;
  3. It has committed to consultations on the design of a sustainable program; and
  4. It has declared an immediate 24-month moratorium on the filing of new sponsorship applications for parents and grandparents.

There is some excitement about the new “Super Visa”, which comes into being December 1, 2011.  It is in effect a multiple-entry visitor’s visa like those currently in existence, except that instead of allowing a six-month visit, it authorizes the visitor to remain in Canada for up to 24 months at a time during its ten-year term.  The Government says such visas will be issued quickly, so that parents and grandparents can join their families here within eight weeks, rather than the eight years it was formerly taking to process visas through some posts.  Of course now they will be coming as visitors, whereas before they came as permanent residents.

To obtain a Super Visa a parent or grandparent must apply from outside the country at a Visa office.  He or she must meet the usual visitor requirements, which includes demonstrating a willingness and capacity to return to their country of origin when the visit is over.  Now, however, they must also:

  • undergo a medical examination, unless they come from an exempt country;
  • demonstrate that they have purchased private Canadian medical insurance; and
  • provide a written commitment of financial support from a child or grandchild in Canada who meets a minimum income threshold.

Presumably applicants will also have to pay the processing fee for a multiple-entry visitor visa, which is currently $150.00.

Those applications for the landing of parents and grandparents which are outstanding will continue to be processed, as long as they are complete and were received  by November 4, 2011.  Those received after November 4 will be returned to the applicant.   Outstanding applications can be withdrawn, although only a partial refund of fees paid will be made if processing of the application has begun.  It is no longer possible to ask for humanitarian and compassionate consideration for the processing of overseas sponsorship applications for parents and grandparents.

We have not seen the fine print for the Super Visa, and so it is not possible to assess its merits authoritatively.  At first blush, however, there appear to be many positives.

Previously many parents and grandparents were denied visitor visas.  Presumably now the Super Visa, created especially for them, will be more liberally granted.

Formerly those visiting Canada could stay for only six months at a time.  Longer stays required applications for extension of the term of the visit, which required the filing of an application and the paying of a fee.  Now obtaining a visa will be an issue requiring attention only once a decade, and there will not be so much travel back and forth to Canada.

The Super Visa will allow parents and grandparents to spend extended time with their Canadian family, but not at the expense of the Canadian taxpayer.

There are some issues, however.  A medical exam must be completed, and the implications for failing the exam may be severe if it means parents and grandparents cannot come to Canada.

Health insurance may not be available to all parents and grandparents.  Those who can get it may be able to come to Canada and those who cannot may not be able to do so.  Those who come as permanent residents will have access to government health insurance, while those who are visitors will have to pay for their own.

Of course, some citizens or permanent residents may not financially qualify to support their parents or grandparents.  If they cannot do so, will members of their family be able to come as regular visitors?   If not, will a two-tiered system develop, in which some in Canada can bring their parents here, and some cannot?  From the point of view of the children and grandchildren, it will be difficult to justify such a disparity.

Parents and grandparents who come to Canada on a Super Visa for 24 months, particularly if they come back for a second or third such lengthy visit, will presumably lose their connection with their country of origin if they are here for such an extended period.  If their property back home is sold, what will this mean for future visits to Canada?  Typically, the fewer ties one has with one’s home country, the more suspicious border authorities are about admitting visitors to Canada.  Will this be a problem in subsequent entries, or in obtaining a second Super Visa?

Also, will extended visits to Canada have tax implications for Super Visa holders?

Implementation of the Action Plan will cause more parents and grandparents to be admitted to Canada, but only from the backlog inventory of current applications.  It is important to note that, according to the Government’s projections, this increase comes at the expense of business class immigration, which will be reduced by about 3,500; live-in caregivers, the numbers of whom will fall by 3,600; and spouses, 4,000 fewer of whom are expected to be admitted to Canada.

Elder parents and grandparents can provide Canadian and permanent resident children with a rich cultural education, with childcare and with an nurturing extended family environment.  They can assist the parents of these children to realize their employment ambitions or assist them in their family business.  They bring with them to Canada their financial resources, but more importantly, they bring their culture, their affection and their wisdom.  They can make an important contribution to the country.  If Super Visas facilitate this, they will be a welcome initiative indeed.

If you need assistance in obtaining a Super Visa, please let me know.  Please note that there may be other ways for parents or grandparents to come to Canada, if a Super Visa is not available.