By Sukhram Ramkissoon
I recently represented a 26-year-old man from the Caribbean (whom I will call Don) who was successful in having the Appeal Division quash a removal order issued to him in 2011 for not declaring his dependent child on his application for permanent residence.
Don’s parents and sibling came to Canada in 2006 as visitors, were subsequently granted Convention Refugee status in Canada, and were landed in 2009. I also represented the parents in their several applications to Canada. In all their applications with Citizenship and Immigration they declared Don as a dependent child as he was under age 22 at the time.
In 2009 Don was asked to submit application forms for permanent residence and at that time he did not have any dependent. However, when immigration requested him to update his application in late 2010 he had a recently born son but he copied what was on the first form and did not indicate he had a child. He sent that to the visa post for processing of his immigrant visa.
Don received his permanent residence visa and arrived at Pearson Airport in April 2011 seeking admission as a permanent resident. He told the examining officer that he had a child but did not advise the visa post abroad before traveling to Canada. He was referred to an admissibility hearing.
An exclusion order was issued against him in 2012 but as a permanent resident visa holder he had a right of appeal to the Immigration Appeal Division which has jurisdiction in certain cases to consider humanitarian and compassionate factors, taking into account the best interests of a child.
He appealed the decision and the matter came up for hearing in early July 2014. He testified before the panel in a very credible manner, answering all questions directly and in a spontaneous and forthcoming way. He explained that he did not reveal the birth of his child to the visa post because he was afraid it would delay the processing of his application and the granting of a visa.
He provided evidence about his educational background, his work history in Canada, the financial support for his child since his birth to the present date and his solid family relationship in Canada. There was no one left in his country and his parents cannot return there as they will be targeted.
He also spoke briefly about the relationship with the child’s mother and the plan for this child. His parents and sibling also testified in a very emotional manner about their financial situation, health situation, support from Don and his plans in Canada. They also apologized about the untruthfulness.
The panel stated that with respect to the offence, it found it serious but noted he was not landed and thus he did not become a permanent resident. The Act could have been undermined but given his truthfulness at the port of entry it was not undermined.
Further, there is no evidence that he is a danger to the safety of the public and what he did not disclose was the existence of a small child and the child was not medically examined. The child is roughly one year old and cannot be criminally admissible.
The panel also accepted that there would be emotional and psychological hardships to him and his family in Canada if he were sent back to his country as his family in Canada were granted refugee protection status and cannot return to visit him.
The panel ruled Don met his criteria in establishing that his case warrants special relief. The exclusion order was quashed and his request to become a permanent resident is returned to the appropriate decision-maker at the port of entry for reconsideration, taking into account this decision.
Sukhram Ramkissoon is a member of ICCRC and specializes in immigration matters at 3089 Bathurst St., Suite 219A, Toronto, M6A 2A4. Phone 416-789-5756.