WHAT IF THE SPONSOR IS SHORT OF INCOME

This article is more academic, we put the preparatory knowledge, focus and conclusions first, and put the arguments behind.

Prerequisite Knowledge

1. Reunion of husband and wife and children does not require income.
2. Parents reunited with immigrants, requiring applicants to achieve 1.3 times of LICO for three consecutive years before applying, and also required to continue to meet the requirements during the trial of reunion immigrants.
3. Beginning in 2019, parents reunite immigrants are no longer drawn, but on a first-come-first-served basis. Most applicants in 2019 only need to pay attention to income from 2016 to 2020.
4. If the parents reunite the immigrants as long as they are not refused due to false statements or serious crimes, the guarantor has the right to appeal to the IAD of the Immigration Appeals Board. If the immigration does not reconcile (the process of reconciliation is called ADR), the debate can be held and a detailed judgment can be obtained.

Focus of the Problems

There are several questions about parental reunion immigration that have not been answered by the official, but many questions have been asked:

1. Do you want to see the income in 2015?
2. In 2017, when a new child was born at home, the population increased from 6 to 7. So, is the income in 2016 calculated according to 6 people or 7 people?
3. The income of a certain year is less than the requirement. Is there any way?

Conclusion

1. Parents who were submitted in 2019 to reunite, do not look at the income of 2015,
2. There is no case at present. The change in the number of households will be traced back to the income requirements of the year before the change. We believe that a loose explanation should be adopted.
3. Because of the existence of the appeal mechanism, as long as the income is not too bad, and the income meets the requirements at the time of appeal, the probability of reunion of immigrants can be passed.

Answer to question one

The original text of the law on parental income requirements is the immigration procedure IRPR 133(1)(j)(i)(B),

(B) has a total income that is at least equal to the minimum necessary income, plus 30%, for each of the three consecutive taxation years immediately preceding the date of filing of the sponsorship application…

Answer to question two

We looked at the case and there are no cases where the change in the number of households goes back to the income requirements of the year before the change. There are several possibilities:

1. The official standard of the visa is not traced back, so as long as the income after the birth is satisfied, the application is passed.
2. This situation is relatively small, no precedent has been formed, or both have been settled before the trial, and there will be no judgment after the settlement.

From the point of view of legislative intent, it is unreasonable to let the income requirements after the member change also affect the year before the member changes. At the same time, because of the answer to question three, question two should adopt a loose explanation.

Answer to question three

Is the income almost the same? You are not mistaken, as long as the income meets the requirements at the time of the appeal, the previous income standard can be relaxed. The application submitted in 2019, from refusal to appeal, is at least 2020, so if the income is not enough before, I still want to submit it in 2019, and quickly find ways to increase the income of the next few years.

To mention the Appeal Board’s attitude towards reunion immigration, you have to mention the Chirwa standard and the Jugpall standard. The refusal of reunification of immigrants can be appealed on the grounds of “humanitarianism and compassion”. The criteria of “humanitarianism and compassion” were established in the 1970 Chirwa case:

Those facts, established by the evidence, which would excite in a reasonable man in a civilized community a desire to relieve the misfortunes of another – so long as those misfortunes warrant the granting of special relief from the provisions of the Immigration Act.

This standard is actually very high. It is only that parents can’t handle immigration. Usually, they can’t “let a rational person want to alleviate his misfortune.” Of course, the appeal can be based on the “best interests of underage”, but the parents reunion, It generally has nothing to do with the best interests of underage. Therefore, in the case of parental reunion, there are very few appeals approved by the Chirwa standard.

In 1999, the Jugpall case was born, reducing the standards set in the Chirwa case. Jugpall can be a life-saving straw for guarantors with insufficient income. The essence of this is that as long as the guarantor has met the income requirements at the time of the appeal, the appeal can be approved even if the income requirement is not met at the time of application.

36. In the context of cases where Parliament’s concerns with admissibility have been met, it may not be necessary to look for overwhelming circumstances in order to grant special relief. The values ​​of quick and fair adjudication would not served served by forcing the appellant to start The sponsorship process all over again if the evidence clearly demonstrates that the appellant is presently capable of meeting the standard for sponsorship which Parliament has set in the amendments to the Regulations.

37. Having said that, this panel is of the view that there must be positive factors present over and above the ability of the appellant to now surmount the obstacle to admissibility in order for the Appeal Division to grant special relief. There must be positive factors Independent of financial circumstances which move the decision-maker to conclude that it would be unfair to require the appellant to start the whole sponsorship process all over again.

38. As well, there should be no negative factors which would then undermine any justification for granting special relief. For example, the appellant who initially failed to meet the Low Income Cut-Off and who now has exceeded it for the past 12 months, But who, for example, nonetheless regularly defaults on support payments under laws family law hardly ranks as deserving enough to warrant special relief on compassionate or humanitarian grounds. In a case where the appellant’s changed financial circumstances bring him above the Low Income Cut-Off over The 12 months preceding the date of hearing, but the appellant is otherwise unsympathetic, the appropriate response of the Appeal Diversity might be to dismiss the appeal, leaving a new sponsorship as the only option for the appellant.

In practical applications, there are many situations that can be “positive factors”, such as the mother is very lonely, the appellant often volunteers. In the case of Jugpall, the appellant Jugpall, Sukhjeewan Singh was only filial and hard work, and the Appeals Chamber approved the appeal on the grounds of family reunion.

After the Jugpall standard was used several times, it finally caused dissatisfaction from the Immigration Bureau. In 2001, the Immigration Service applied to the Federal Court for a judicial review of the Appeal Board’s decision in the Dang case. The core of the Dang case is the Jugpall standard. The Immigration Department believes that the standard is too broad and the criteria set up in the Chirwa case are greatly reduced and should be revoked.
The federal court sentenced the immigration office to lose.

[68] While I agree with the submission of counsel for the Minister that this is a significant lowering of the threshold, after careful reflection I am unable to accept the submission that in so the the Appeal Division lower the threshold to such an extent as to Abandon the statutory requirement for the existence of compassionate or humanitarian considerations that warrant the granting of special relief.

[69] While the threshold applied by the Appeal Division may have been extremely low, there remains a threshold other than the simple subsequent meeting of the LICO requirement. It is for the Appeal Division, and not for this Court, to set this threshold.

Although the federal court left the Dang case a possibility for the Immigration Department to continue appealing to a higher court, the Immigration Department did not appeal. The Jugpall standard was established in the Appeals Committee. Up to now, “As long as the income meets the requirements when the appeal is met, the previous income requirements can be relaxed” is already the gold standard for reunion immigration, and the Jugpall case and the Dang case have also been cited in countless cases.