By Attorney Henry Moyal
NO OFFICIAL “ LAST REMAINING RELATIVE CATEGORY”
Q. I want to know how I can sponsor my eldest sister in the Philippines. She is the only one left back home and we have tried to invite her for a visit many times without success. She is over 40 years old and single. My mother had six children and we are all in Canada, working, citizens and paying taxes except my eldest sister. She stayed in the Philippines to take care of our ailing mother who recently passed away. She is now alone. How can I sponsor her as the last remaining relative?
A. There is no official “last remaining category” under immigration law. Several years ago under the old Immigration Act there was a policy in the immigration manuals that specifically recognized the case that you describe. It was called the “last remaining relative category” and immigration officers had specific policy notes on to deal with such scenarios. However, there is no policy now and basically you can only apply under the scope of a “ humanitarian and compassionate application”. Under the H&C application the visa officer has the discretion to approve the application if there are compelling reasons.
It should also be noted that the “ last remaining relative category” should not be confused with the family class category of an applicant whose sponsor is alone in Canada. Under this type of category it is the sponsor who is alone in Canada, not the applicant. If a sponsor (Canadian citizen of permanent resident) is alone in Canada and their parents/grandparents are deceased, they are eligible to sponsor any relative regardless of relation.
Q. I have lived in Canada for about five months now. I love it here and I want to know how I can convert my visitor visa to an immigrant visa? Is it possible?
A. Yes and no. While your question is quite common, there is no direct provision permitting one to convert a temporary visa to a permanent one. Assuming that you qualify for permanent residence, it is possible to become an immigrant while you are a visitor. But technically, you are not converting anything. Basically, you need to remain as a visitor and apply as an immigrant. Therefore, you remain under one category while simultaneously applying for another.
There are also other issues that you need to know about, for example place of processing and extending your status. Since you have been in Canada for five months, I am assuming that your visitor status will expire very shortly. I suggest that you obtain professional advice on the permanent residence application, place of processing and extension soon.
Q. I arrived in Canada under the World Youth Day program to see the Pope. I never left since. I applied as a refugee and was denied. I was given a PRRA, pre-risk removal application and I will be obtaining the result soon. My question is with regard to my Canadian born child and my fiancée. My fiancée is a permanent resident and we want to marry. If we marry will I be able to remain in Canada. If I am deported will my son also be deported?
A. First and foremost, since your son was born in Canada, he is a Canadian citizen. He cannot be deported because of you. Secondly, if seems that you have been in Canada for several years since it was over 3 years ago that the Pope was in Toronto. If you had a baby that means you were in a relationship for at least 9 months now and I am bewildered as to why you would pursue a guaranteed-to-lose refugee case instead of a sponsorship application. Last February 2005, the minister announced that those in spousal or common law relationships with Canadian Citizens/PR can apply from inside of Canada even if they have no status. I question as to why you did not apply for this application? Under the same announcement, it was determined that those who have already received their negative PRRA decision, are not eligible for the special program. Since you will obtain the result soon, you may not have enough time to file the inland application. You have not provided enough information as to when the PRRA application was sent. Your options are to pursue an application from inside or outside of Canada.
Attorney Henry Moyal is a certified and licensed Immigration Lawyer in Toronto, Ontario. The above article is general advice only and not intended to act as a legal document. Send questions in confidence to Balita or to Attorney Moyal by fax, mail or email canada@moyal.com
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