Sponsorship of orphaned half-siblings
Early in October, I represented a client before the Immigration Appeal Division on a very unusual sponsorship appeal.
The Sponsor is a Canadian citizen who sponsored her two half sisters… or so she thought. The Applicants are two orphaned minors living in South Sudan. It was believed that the Sponsor and Applicants shared the same father. The Sponsor had immigrated with her mother decades earlier during the civil war in Sudan. At that time, her father was imprisoned. They never saw him again, nor did they ever speak to him again. The Sponsor and her family had NO IDEA that this man had another wife or children until they were contacted by some other relatives a few years back.
These two young girls in South Sudan were orphaned when their mother died a few years back. Their father has been missing for almost 2 decades, and has been presumed dead. Neither girl remembers their father ever being in their lives.
Under s. 117(1)(f)(i) of the Immigration and Refugee Protection Regulations, a Canadian citizen or permanent resident is allowed to sponsor an orphaned sibling (including a half-sibling).
The sponsorship was refused by the Visa Office on two grounds:
that the relationship to the sponsor was not established; and
that it had not been established that the Applicants were orphaned
The Sponsor had completed DNA testing to establish her biological relationship to her half siblings. As it turns out, it showed shew as not related to either of her half sisters! A shock to everyone. The Sponsor’s other two full siblings in Canada then tested against the Sponsor and against the two Applicants in South Sudan. The result of those tests established that the Sponsor was a full sibling but only one of the Applicants was a 1/2 sibling! To everyone’s surprise, one of the half-sisters in South Sudan had a different father. There was absolutely no way to know who that man may have been. Their mother never mentioned any other man. Considering the extremely violent conditions in South Sudan, sexual violence could not be eliminated as a possibility.
Both refusals were challenged in an appeal to the Immigration Appeal Division. I inherited the file from previous counsel about a month before the appeal. In written arguments on jurisdiction, prior counsel had argued that the unrelated applicant be considered as a de facto family member of the Sponsor. Unfortunately, the Immigration Appeal Division does not have jurisdiction to consider an appeal for someone who is not part of the Family Class… a de facto family member is by definition not a family class member!
To my surprise, the Immigration Appeal Division order an in-person appeal on both Applicants! For the biologically related half-sibling, Minister’s Counsel conceded that the relationship had been established but contested whether it had been established that she was orphaned (despite the existence of a death certificate for both parents, with the father being presumed dead).
How to argue jurisdiction about the unrelated sibling? Well, I thought of arguing that she not be considered a de facto family member of the Sponsor. Rather, I asked that she be considered a de facto family member of her sister, the other Applicant! If the related sister was approved, I submitted that the Immigration Appeal Division, considering it is a de novo appeal, should make a determination of whether the unrelated sister was a de facto family member of there elated sister.
It’s now November 3rd! Nearly a month post-hearing. Still no decision. I think this case is complicated because of the facts and very compelling (and sad) set of circumstances. Such a tough decision for the Member! I’m eager to see how the Board rules on our submission.
This case was truly unique and shows the extremely complex nature of cases that our firm takes on! The nuances involved in matters like this are so specific that an extremely thorough understanding of Canadian immigration law is required to make these types of arguments to best represent clients.
We all eagerly await the Immigration Appeal Division’s decision!