BICC152 Immigration And Refugee Law 2 : Essay Fountain

Question:

Your goal is draft an H&C submission letter (addressed to the correct address) and application based on the fact situation below. The grading is based on how well you demonstrate knowledge of the relevant legislation, regulatory provisions, and current jurisprudence that supports your request.

Instructions

Read the fact situation regarding your client then determine the purpose, material facts, issues, and relevant law pertinent to the case. Next, develop and implement a strategy to advocate for your client, who is faced with potential criminal inadmissibility. Make sure you demonstrate an understanding of the applicable fees, necessary forms, and supporting documents required for a H&C application. Finally, prepare and submit a complete application following the instructions below.

Criteria

This assignment comes in three parts: a submission letter, IRCC forms, and an enclosures list. For this case, marks are assigned to each of the following categories:

  • Draft a legal submission in letter form using correct spelling and grammar.
  • Include an enclosures list with the names of the documents you deem relevant to the case
  • Prepare your client’s application, including all the IRCC forms required .
  • Proof your submission for accuracy, completeness, spelling and grammar

For the submission letter

Your submission letter needs to address all of the issues relevant to the case. It must demonstrate an understanding of the relevant legislation, regulations, IRCC manuals, IRCC website information, and case law. It should speak to establishment, hardship, and the best interest of the child as well as any other issue you consider relevant. Just don’t forget to sign it at the end.

Moreover, do NOT simply cut and paste all the material into one document. Tribunals expect you to indicate which facts are relevant and important to a case as well as synthesize the information into a logical argument.

The submission letter should follow this order:

Letterhead

Date

[correct IRCC address]

Dear [NAME]

Re: [??]

Introduction

Submissions on humanitarian and compassionate factors, using case law, legislation and policy where relevant. All relevant issues must be addressed. Establishment, Hardship and Best Interest of the Child must be addressed. Use headings to organize the information.

Signature

For the IRCC forms

Fill out all the IRCC forms necessary to complete an H&C application. This is a test of your ability to independently identify and select the correct forms as well as fill them out completely and accurately. No direction will be given on which forms to include.

For the enclosures list

Prepare a comprehensive list of the documents you need to support the client’s application. For each document indicate the name, date, type of document, and a one paragraph summary of its contents. This list should include documents you ask the client to collect as well as any documents your research might yield (such as country condition). You are NOT required to draft entire samples other than the IRCC forms.

The Case

Nicole Newman was born on March 14, 1978, in Venezuela. In 1991, she moved to Canada with her parents. She subsequently became a permanent resident and then a Canadian citizen.

On September 12, 2004, Nicole married Victor Newman, who is a citizen of Venezuela. Victor was born on August 22, 1974. The ceremony took place in Maracay.

Nicole’s application to sponsor Victor was refused by a visa officer in 2017, pursuant to section 36(1)(b) of IRPA due to criminal convictions registered against Victor in Venezuela.

The following is a summary of Victor’s convictions:

Year

Offence

Sentence

Release Date

1993

Conspiracy to cause an explosion

8 years imprisonment

1997

1993

Causing an explosion likely to endanger life

8 years imprisonment

1997

2005

Blackmail

5 years imprisonment

2010

2009

Possessing potatoes in excess of legal limit

2 years

2010

The first three offences, if committed in Canada, would have carried a maximum sentence under the Criminal Code, of 14 years in prison, while the most recent offence is not an offence under any law of Canada.

According to Victor, the 1993 convictions related to the bombing of a tavern. He was an impetuous young man and, at that time, was more often than not high on marijuana. He and some friends were kicked out of the bar for being drunk. As “revenge,” his friends decided to bomb the tavern. The bomb went off prematurely, before patrons could be warned, as a result of which several people were seriously injured. Victor claims that, because he was afraid that his violent friends would harm his family, he took no steps to warn the authorities. However, at his trial, the court accepted evidence that implicated him in the planning and execution of the bombing. On his lawyer’s advice, Victor entered a guilty plea. However, to this day, he denies involvement. He claims he pled guilty pursuant to a plea bargain arrangement where it was agreed that he would only have to serve four years of his eight year sentence. That is exactly what happened.

Victor also pled guilty to the 2005 blackmail charge. He has explained that he was doing a favour for his employer in picking up money from a customer, not knowing that the money was being paid as “protection money” as part of a scheme to blackmail the customer. Again, on the advice of his lawyer, Victor did not fight the charge. He claims that he had been in pre-trial custody for just over a year and had been told that his sentence would be much greater if he went to trial and was convicted. He decided not to take a chance.

While in prison in 2009, Victor was charged with possession of potatoes greater than the legal limit. In Venezuela at that time, there was a shortage of potatoes, as a result of which the government imposed strict limits on how much one could possess. Thinking that he could make a lot of money, Victor horded potatoes in prison and arranged to have them smuggled out and sold on the black market. He pled guilty in exchange for other more serious charges, such as criminal conspiracy, being dropped. He was released early in 2010.

Victor and Nicole met in 1998, while Nicole was visiting family in Venezuela. They corresponded and saw each other over the years, and got married on September 12, 2004, just before Victor was arrested on the blackmail charge. Nicole was aware of Victor’s criminal past before she married him. Once Victor was arrested and it became clear that he would be behind bars for a number of years, Nicole returned to her home in Canada, but she continued to see Victor on conjugal visits in the prison.

On one of the conjugal visits, Nicole became pregnant. Their son, Jack Abbott Newman, was born in Toronto on June 8, 2009. Nicole and Jackie have lived in Canada since that time.

While he was in prison, Victor came under the influence of some political activists who are avid opponents of current President Nicolas Maduro. Victor is concerned that his name is known to Maduro’s supporters who routinely round up his opponents and throw them in jail or cause them physical harm or worse.

After being released from prison, Victor came to Canada as a visitor in 2012. He has been in Canada since that time. Prior to his visitor’s status expiring, Victor applied for an extension. Due to an IRCC administrative problem, the application has not yet been dealt with and, therefore, Victor has remained in Canada.

Nicole has a sister (Grace Cabrera) and a brother (Juan Guzman) living in the Greater Toronto Area, and her mother (Carmelita Popas) resides in a nursing home in the area as well. Her father (Don Carlos Popas) passed away some years ago. Nicole is a partner in a retail store (Nicole’s NickNacks) in Vaughan, Ontario, which she manages. It is quite successful. In 2009, after Jackie was born, Nicole purchased a condominium apartment which has a current value of over $700,000, with a mortgage of about $200,000. The address is 8040 Bathurst Street, Apt. 2107, Vaughan, Ontario. This is where she and Victor currently reside.

Victor’s parents, Gerhard and Angela Newman, were both born in Austria and came to Venezuela to escape the Nazis before World War II. They are both deceased. Victor’s brothers (Miguel and Altuve) and his sister (Sofia) all live in Venezuela but have had nothing to do with him in over twenty years.

While in prison, Victor became trained as a cosmetician. His only job in this field was at Fenmores Salon in Caracas, where he worked after his release from prison until he came to Canada. From 1997 to 2005, Victor worked in security in Caracas for Tio Duro LLC. The absence of a work permit prevents Victor from working in Canada, but he receives a small disability pension from the Venezuela government due to the injuries he suffered in the 1993 explosion. From time to time, he helps Nicole out in her store, but does not get paid. Victor spends a considerable amount of his time volunteering in community organizations, where he performs as a clown at children’s hospitals and works on other projects such as keeping the works with is Veahavta, 200 Bridgland Avenue, Toronto. There are a number of individuals in the community who are willing to step forward and write letters of reference, attesting to his character and community work.

Nicole has confirmed that, if she had to, she could sell her interest in her business. However, she obviously does not want to. The genuineness of the marriage between Nicole and Victor is not in question. Although Victor and Nicole both speak Spanish (the main language in Venezuela), their son does not.

 

Answer:

Humanitarian and Compassionate Application (H&C)

25th January 2019

IRCC – Humanitarian Migration Vancouver

#600 – 605 Robson Street

Vancouver, B.C.

V6B 5J3

VancouverBRO@cic.gc.ca

Dear Sir/Madam

Re: Application for Permanent Residence under the Humanitarian and Compassionate

As stated above, I request for consideration on my client’s application for permanent residency here in Canada. Victor Newman, my Client, is legally married to Nicole Newman who was a permanent resident before becoming a Canadian Citizen. Victor has been living in Canada since 2012 as a visitor and has requested for an extension from the IRCC. The couple has one child- Jack Abbot Newman who was born on 8th June 2009. Victor’s first attempt to apply for citizenship through sponsorship by his wife was denied because of his criminal past. However, he is a changed man, has a child whom he needs to be close to, and is also involved in community work.

In light of the circumstances above, the Canadian Immigration Law allows Victor to apply for permanent residency under section 25 of the Immigration and Refugee Protection Act. The requirements for this are met because; he is a foreign national currently living legally in Canada, has a spouse/common-law partner who is a Canadian citizen, and has a child in Canada as stated.

Hardship and Best Interest of the Child

The requirement to leave the country will lead to undue hardship because of his political affiliation with political activists thus having different doctrines against Nicholas Maduro. This puts him in grave danger and uncertainty if he is to return to Venezuela. He is known by Maduro’ supporters who may cause physical harm to him or throw him in jail. The other factor is the need to look at the best interest of the child. As a parent, he needs to be close to his child who is just 9 years old. Leaving for Venezuela with the Child will lead to imminent danger. On the other hand, his mother is a Canadian Citizen.

With regard to this application, all the necessary forms have been duly filled so that a better consideration is made. It is my humble request that you consider our plea.

Sincerely,

Advent- Advocate

Part 2

IRCC forms to be filled

  1. Document Checklist [IMM 5280]
  2. Generic Application Form for Canada [IMM 0008]
  3. Schedule A – Background/Declaration [IMM 5669]
  4. Supplementary Information [IMM 5283]
  5. Use of a Representative [IMM 5476]

Enclosures List

  1. Document Checklist [IMM 5280]- January 2015

A list of all documents that are needed for the application. These are indicated and explained below.

  1. Generic Application Form for Canada [IMM 0008]- November 2018

The applicant fills this form by answering all the questions. These questions range from the program under which one is applying for- family, refugee or economic. Family members, economic skills, and language preferences are also contained, (Ley, 2017, 173).

  1. Schedule A – Background/Declaration [IMM 5669]- October 2018

the principal applicant completes this and shows his name, native language name. Date of birth, parent’s names, and educational background among others

  1. Supplementary Information [IMM 5283]-  August 2013

Also filled by the applicant and contains names, where the applicant was living and the country of origin, the person he is living within Canada, and admissibility while living in Canada

  1. Use of a Representative [IMM 5476]

This form attests that the applicant appointed a representative or a consultant for the application process. The representative is tasked with providing consultation services and guidance during the whole application process, (Beine & Coulombe, 2018, 70). It then shows that the representative has been duly appointed to represent the applicant in the Immigration, Refugees and Citizenship Canada as well as the Canada Border Services Agency (CBSA).

 

References

Ley, D. (2017). Points of Entry: How Canada’s Immigration Officers Decide Who Gets In. BC Studies, (195), 172-173.

Beine, M., & Coulombe, S. (2018). Immigration and internal mobility in Canada. Journal of Population Economics, 31(1), 69-106.

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