By Sukhram Ramkissoon
A 37-year-old man from the Caribbean was recently fortunate in having a deportation order stayed for four years on terms and conditions.
For this article I will refer to him as Monty. I represented him in all his immigration problems leading up to his appeal before the Immigration Appeal Division (IAD). He became a permanent resident in 2003 from within Canada and has a spouse and two Canadian-born children.
Monty was found inadmissible on grounds of serious criminality and was ordered deported in 2012. As a permanent resident, he then had a right to appeal the decision to the IAD on humanitarian and compassionate grounds and bore the burden of proof.
To allow the appeal or to stay the removal order, the panel must be satisfied the decision is wrong in law or taking into account the best interests of a child directly affected by the decision that sufficient humanitarian and compassionate considerations warrant granting special relief.
He was convicted for an offence which is punishable by a maximum term of imprisonment of at least 10 years. His conviction in 2011 was for an incident in 2008 for which he was found guilty for having cocaine and marijuana in his car trunk.
He was sentenced to a conditional sentence of 18 months. He was also convicted in 2009 for two incidents which occurred in 2007 for which he received non custodial sentences.
He testified before the panel that he has not been convicted for any incidents that occurred after August 2011, has no outstanding charges and that he has a relationship with his two children and his spouse and a work history in Canada. He also testified about his participation in church activities and that he participated in some counseling and voluntary work.
His spouse also testified in a very emotional manner about the hardships she and the children will face if her spouse is removed from Canada.
In granting a stay, the panel noted that “rehabilitation has been defined as being the process of seeking to improve an offender’s character and outlook so that he can function in society without committing other crimes.
In an immigration context, it includes assessment of possible future comportment based on actions, attitudes and behaviors since conviction. It is not for the panel to determine if Monty is rehabilitated, it is for the panel to consider whether the prospects of rehabilitation are such that, alone or in combination with other relevant factors, they warrant special relief.
The panel noted the absence of further convictions, the support of his spouse, his work history and concluded there is a reasonable possibility of rehabilitation. Removal of Monty would be a serious disruption to his family and it seems in the best interest of his two children to have him remain in Canada, the panel ruled.
At the hearing, a Canada Border Services representative strongly recommended that the appeal should be dismissed and Monty be deported. I submitted that a stay should be granted for three years.
The panel in its ruling stated: “Having considered the factors and weighed the evidence and submissions, the panel finds that taking into account the best interests of a child directly affected by the decision, that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case, to stay the removal order.”
The panel ordered that the removal order be stayed for four years and imposed conditions to be met by Monty during that time.
If he fails to comply or is convicted of any other offence he will be automatically deported.
Good luck, Monty!
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.