July 13, 2008

Can We Appeal the Decision?

Posted by admin - Bellissimo Law Group PC

Some questions I received I thought I would answer for the benefit of all our readers.

Q: My sister applied to the Manila visa post under the Live-in Caregiver program. At the time of her application, as she has also advised the visa office, she was still in school, undergoing her training which would make her eligible for this program. The visa office requested her to pass the English test and undergo the medical examinations, which she did. In the end, after all this correspondence, she received a negative decision on the basis that she did not have the required education / training at the time when she made the application. My question is why did the visa post ask her to pass the medical tests and the English exam, when they knew from the beginning that she is still in school? Can we appeal this negative decision?

A: Pursuant to the Immigration and Refugee Protection Regulations (IRPR) s.77, the applicants must meet the requirements and the eligibility criteria at the time when the application is made. Your sister should have waited to finish her training and obtain a certificate and then apply to the visa post for her work permit.

The immigration operational guidelines state that if further studies are completed and the documents to prove this are submitted between the time of the application and the assessment, immigration officers should award the points as per the highest educational credential obtained at the time of assessment. This relates to a case where the applicant already meets the requirements at the time of submission, and what is submitted only adds points to an applicant that already qualifies, even without those supplementary studies.

In your sister’s case, as per the operational manual, the visa post should not have proceeded with the requirement of the English and medical tests, before assessing the fact that she meets the eligibility criteria for the Live-in Caregiver set out in the legislation.

Q: Her employer is still willing to employ her and we do not know how to proceed: can she apply again (her medical results are valid until April 2008) and the Labour Market Opinion (LMO) expires on Oct. 21, 2008.

A: Yes, your sister can apply again, this time with complete documentation regarding her education / training, updated forms, letters and documentation, submitting also a copy of the refusal letter she received.

Thank you for your questions.