ORAL ADVOCACY WRITTEN SUBMISSION FOR MR
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ORAL ADVOCACY WRITTEN SUBMISSION FOR MR. KHOURY'S CASE
The officer will decide in favor of Mr. Khoury's inland application
for permanent residency based on humanitarian and
compassionate grounds because of his strong establishment and
integration in Canada. He has called Canada, his only home, for
over two decades.
Sec 25(1) of IRPA 1
permits the Minister to provide relief from the requirements of the
statute to a foreign national in Canada who applies for permanent
resident status if the Minister is satisfied that "it is justified by
humanitarian and compassionate considerations relating to the
foreign national"
2 Mr. Khoury fits in the purview of s. 25(1) since he has a clean
record and does not have any inadmissibility under IRPA ss. 34,
35 or 37.
In Kanthasamy v. Canada, the officer was neither satisfied with
the evidence provided for his establishments in Canada nor was
he satisfied that sending him back to Sri Lanka will have unusual
circumstances. Mr. Kanthasamy was in Canada for only a brief
period and could not prove his integration in the society outside
of the timeframe of his removal orders.
345 The Kanthasamy v Canada case contradicts the situation of
Mr. Khoury by a remarkable extent in terms of establishment in
Canada. First, Mr. Khoury is well established since he has been
living in Canada for over 20 years and is stable in all aspects of
life, unlike Mr. Kanthasamy. His removal to Syria is out of the
equation because of the on-going war and imposition of ADR in
place for Syria. Second, Mr. Khoury has no family members, in
Syria and all his immediate and extended family members are in
Canada. Lastly, Mr. Khoury's deep connection with his immediate
and extended family, and friends in Canada is significant. From
the excerpts of his affidavit, his duty and care towards his mother,
nephew, and niece, as well as his engagement with the
community in philanthropic and artistic activities determines his
financial, professional, and cultural establishments. As per the
H&C guidelines of establishment in Canada published in
Operational Instructions and Guidelines
6, Mr. Khoury's application positively addresses most of the
questions laid out in the manual. Therefore, the law and the
reasoning applied above will lead the officer to rule the decision in
favor of Mr. Khoury due to the proof of his well-founded
establishment in Canada based on his family ties, duration of
stay, financial soundness, and his professional, social, and cultural
integration. Considering all legal arguments presented, Mr.
Khoury deserves to be granted permanent residency under
humanitarian and compassionate grounds.
Written Submission
The Appellant respectfully argues that the appeal must be
granted in his favour following sections 2 and 4 of the IRPR. The
couple has demonstrated marriage-like commitment, and their
relationship is genuine and was not entered merely to acquire
permanent residency status; thus, they meet the criteria for a
conjugal partner.
•
The IAD must first consider the Appellant's significant efforts to be
with
the applicant and their engagement in each other's lives.
According to the
Appellant's testimony, he tried to spend all his vacation time in
Cuba
during the last six years. However, the period of cohabitation is
usually
brief due to his professional commitments.
•
Another crucial aspect is that in the applicant's home country,
Cuba,
same-sex relationships are not considered legal.
•
As per their testimony, their relationship was started in 2012 and
is
getting stronger each day and is marriage-like.
•
They intended to marry in Canada, which is why the applicant
applied for
a Canada visit visa twice, but unfortunately, it was refused both
times.
•
The couple is now waiting for the Cuban constitution to enact a
bill
allowing same-sex marriages so that they can marry there.
•
The couple showed their dedication by being in touch all the time
and,
used to talk to each other even when it was hard to maintain
communication due to the lack of phones in Cuba.
•
The Appellant's proposal and the applicant's acceptance during
their
second meeting demonstrate their strong desire to be together.
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•
Also, economic support, the Appellant has financially supported
the
applicant for his upkeep throughout their relationship, and they
have held
a joint property.
•
Furthermore, societal perception, the evidence of letters from
friends and
relatives testifies to their commitment. It shows that the couple
attempted
to publicize their relationship to the people they felt safe with and
that
they had been treated and perceived as a couple.
To demonstrate the authenticity of this conjugal relationship, the
Appellant draws
the member's attention to Leroux v Canada (Minister of
Immigration and
Citizenship),2007 FC 403, a comparable case of same-sex
partners.
Additionally, the Appellant requests that the IAD member to
consider SOGIESC
guidelines while evaluating their relationship, particularly Article
10.1,
ascertaining the genuineness of a spousal or conjugal relationship
in a
sponsorship appeal may be difficult in situations where the
sponsor, foreign
national, or both identify as SOGIESC individuals and are from a
country that
criminalizes, stigmatizes or does not recognize same-sex
relationships.
Finally, the Appellant also submits that IAD must consider the
cultural context of
Cuba when assessing other factors and consider the efforts made
by the
applicant, such as improving his English fluency.
Hence, I request the IAD to give certain weightage to the stated
factors and must
recognize the Appellant and applicant as conjugal partners. They
did not enter
this relationship to gain status in Canada. Therefore, the appeal
must be granted
Temporary Resident Visa Financial Support Best Interests of the
Child Section 25(1) of the Immigration and Refugee Protection Act
Secondary Keywords: Permanent Residence, Humanitarian and
Compassionate (H&C)Sponsorship under the Family Class,
Financial Situation, Integration into Canadian Society, emotional
hardship, best interests of children
Tertiary Keywords: Community Involvement, Family Violence,
financial hardship, low income, single mother, role of
grandparents, retired Section 25(1) - Specific legal provision mentioned Best Interests
of the Child – Emphasizing the legal principle Super Visa - Specific
type of visa mentioned Financial Support - Emphasizing financial
details
Temporary Resident Visa - Indicates previous attempts to visit
Based on the legal topic of immigration and humanitarian and
compassionate grounds, here are examples of primary sources of
law: Legislative Provision: Section 25(1) of the Immigration and
Refugee Protection Act (IRPA): This legislative provision is
explicitly mentioned in the affidavit and serves as the primary
source of authority for Humanitarian and Compassionate (H&C)
applications. Section 25(1) provides the legal basis for granting
exemptions or special considerations on humanitarian and
compassionate grounds. Leading Case OR case law or common law BAKER Kantasamy case
Canada (Minister of Citizenship and Immigration) v. Tobiass,
[1997] 3 F.C. 675 (F.C.A.): While the affidavit doesn't specifically mention a leading
case, Tobiass is an example of a significant case in Canadian
immigration law. It deals with the interpretation of humanitarian
and compassionate considerations and has been cited in
subsequent cases. Leading cases often establish legal principles
and interpretations that guide decision-making in similar
situations. Keep in mind that the specific leading case may vary,
and legal precedents are subject to change. Government Policy Documents: Immigration, Refugees and
Citizenship Canada (IRCC) Manuals: The IRCC provides manuals
and operational guidelines for immigration officers. Manuals such
as the Immigration Manuals and the Enforcement Manuals may
include detailed procedures and policies related to H&C
applications. Program Delivery Instructions (PDIs): PDIs are
internal documents used by immigration officers. They outline the
procedures officers must follow when processing different
immigration applications, including H&C applications. Operational
Bulletins (OBs):OBs are official directives that provide guidance to
immigration officers. They maycover various aspects of
immigration policy, including humanitarian and compassionate
considerations. Ministerial Instructions: The Minister of
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Immigration, Refugees and Citizenship may issue instructions that
guide the processing of certain types of immigration applications.
These instructions could impact the criteria for H&C applications. Non-Legal Information: Country Conditions Reports: Information
on the current conditions in the applicant's home country may be
relevant. These reports could include details on political, social,
and economic conditions, as well as any humanitarian or security
concerns. Medical and Health Reports: Depending on the circumstances
mentioned in the affidavit, medical and health reports may be
required to support claims related to the health conditions of
family members.
Letters of Support: Letters from community organizations,
religious institutions, or individuals may be submitted to provide
additional context and support for the applicant's claims.
Financial Documents: Documents demonstrating the financial
situation of the applicant and their family, including evidence of
income, may be required to assess the financial aspect of the
application.
Educational and Employment Records: Documents detailing the
educational and employment history of the applicant and family
members may be relevant, especially if they contribute to the
overall context of the application.
Counselor or Therapist Reports: If mental health issues are
mentioned in the affidavit, reports from counselors or therapists
may be required to provide professional assessments and
support."
[1999] 2 S.C.R. 817" specifies that the case in question was
decided in 1999, is published in the second volume of the
Supreme Court Reports, and can be found on page 817 of that
volume. If you were looking for this case, you would go to the
second volume of the Supreme Court Reports and turn to page
817 to read the details2015 SCC 61" refers to a decision by the
Supreme Court of Canada. Here's a breakdown of the citation:2015: This indicates the year
in which the case was decided, which, in this case, is 2015.SCC:
This stands for "Supreme Court Cases," the official reports for
decisions of the Supreme Court of Canada.61: This is the
sequential number assigned to the case within the Supreme Court
Cases for the year 2015. It represents the 61st decision reported
in that volume for that year.
Conclusion: The Court will rule that Ms. Achebe is granted
Permanent Residency under Humanitarian & Compassionate
(H&C) considerations.
Rule: Immigration and Refugee Protection Act (IRPA) s25(1)
Explanation of the law: Case Law -
Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC
61
Baker v. Canada (Minister of Citizenship and Immigration), 1999
CanLII 699 (SCC)
Application: Ms. Achebe belongs to Aba, Nigeria and is a single
mother of 2 adult and 5 dependent children from her ex-husband
Okoro Achebe. She had been in an abusive marriage with Okoro
for 18 years before getting divorced. He has already managed
turning her eldest children, sister & brother against her and
getting threat letter sent to her parents through neighbors. This
was done so that Ms. Achebe is forced to do whatever he wanted.
He also enlisted the services of a private detector to check on her
dressing and behavior. With such intimidating circumstances, it is
impossible for Ms. Achebe to move out to work and support her
children financially. Her financial independence becomes more
important when her children need mental and social healing as
well. Earlier, she had engaged therapists and professionals for
them and paid for their services on her own. In addition, her elder
sister is also against her and keeps bad mouthing her with other
siblings so that she does not get support from family members.
The decision in Kanthasamy v. Canada case has broadened the
interpretation of H&C grounds. The facts above point to the
hardships as a whole due to family violence that await Ms. Achebe
in Nigeria. Ms. Achebe's children have embraced Canadian
lifestyle. As stated in Baker v. Canada case, it is in best interest of
the children to remain in Canada and build a better future.
Conclusion: Therefore, Ms. Achebe duly deserves H&C
consideration under IRPA s 25(1) since the facts stated above
ascertain the hardships she will have to face due to family
violence besides other factors including being threatened by
community people, if made to return to Aba, Nigeria.
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