RIMBits Revealed (July 2010)

The following are some excerpts from the July 2010 RIMbits.  RIMbits are messages sent from National Headquarters to missions overseas.  The July 2010 RIMbits on admissibility consisted of eight questions and answers or bulletins.  I have reproduced three of them for free below.

Please note that the questions and answers below should not be viewed as legal advice.  Rather, they are simply reproductions of how CIC senior management answered specific questions from visa offices in July 2010.

Canadian citizen Visiting Forces Act applicant

Q. We ask for your opinion on the process for a Canadian dual citizen and his family who wish to enter Canada under the Act on Visiting Forces at the request of the ________ government. The applicant and spouse currently have official _____  passports. The sons, also dual citizens, have an ordinary ____ passports stating “son of government agent.” With what documentation should the applicant and his sons travel? Obtaining proof of Canadian citizenship for the children could take 14-16 months.

Also, the spouse has no status in Canada. The Foreign Worker Guide indicates that dependents of people who are in Canada under the Visiting Forces Act qualify for an open work permit. As the spouse of a Canadian citizen, is the wife still eligible for a work permit or study permit?

A. The Canadian citizens (principal applicant and sons) could arrive in Canada with their Official passports ______ with no permits or visas; however, the Port of Entry will have to investigate again their status as Canadian citizens. Therefore, I suggest that the applicant and his children be issued Facilitation visas so that CBSA POE will have the full story at their fingertips. The visa-exempt spouse, as accompanying dependent under the Visiting Forces Act, should be issued an open study-work permit.

Permanent residence determinations -accompanying a now-deceased spouse

Q. We need your expertise and clarification on a permanent residence determination dealing with a permanent resident accompanying a Canadian citizen spouse outside of Canada.

The 5-year period of consideration is from _____ to _____ . We determined that the applicant had only spent 171 days in Canada and did not meet the residency obligations. However, until ______ when the applicant’s spouse died, he was accompanying a Canadian citizen.

My understanding for accompanying is that the spouse/common-law partner must be alive. If the spouse or common law partner is deceased and has been deceased for a number of years should we be counting the time spent while alive for residency determinations?

A. Yes, you should count the time the applicant was accompanying a living Canadian citizen. When determining physical presence in Canada, each part of a day in which a person is accompanying a Canadian citizen outside Canada counts as a day in Canada. In this case, the time spent accompanying the Canadian citizen spouse outside of Canada up to and including _______ should be considered.

A similar case can be made for permanent residents who were previously married to Canadian citizens. The period of time where the permanent resident accompanies a Canadian citizen spouse should count towards residency requirements until the date of a legal separation or, if no legal separation exists, the date of the divorce decree.

Medical inadmissibility

Q. I would like to find admissible an applicant that the medical officer has found inadmissible for excessive demand for social services (MOS).

The medical officer indicates that this individual is inadmissible for excessive demand on social services.

I disagree. I am not satisfied that this person is medically inadmissible, and I believe that this decision is mine under the Act and related jurisprudence. However, there are no instructions on how to issue a visa on a case where there is an MOS. I do not plan to send a procedural fairness letter, because I am not satisfied that there is inadmissibility.

A. Ultimately, it is the visa officer that determines if an individual is inadmissible, not the medical officer. If there is, in your opinion, sufficient information on file to counter the excessive demand component of an MOS assessment, then there would appear to be little gained by going through the procedural fairness exercise. You may want to confer with your IPM on whether it is appropriate to waive this administrative step.

For issuing a visa, you can “override” the MOS assessment in CAIPS. It is recommended that you record your argument for visa issuance in CAIPS notes.

OB 63B addresses this issue:

Coding

At the end of the process, if the applicant has satisfied the immigration/visa officer that they have the ability and intent to mitigate the cost of the required social services, the immigration/visa officer will enter a positive medical decision code “1” in FOSS or CAIPS, as applicable. Although the medical assessment code will remain unchanged (MOS), CAIPS will permit a Final Decision code “1” (visa issued).