Applicant gets another chance at permanent residency

By Sukhram Ramkissoon

Sukhram Ramkissoon

Recently a 49-year-old citizen of Jamaica, who I will refer to as Ricardo, was a former permanent resident of Canada and was successful in the Federal Court in having a negative humanitarian and compassionate application for permanent residence set aside.

The facts of his case are as follows: He first arrived in Canada in 1976, when he was three years old and has spent the last 46 years living in Canada. He and his partner of 19 years share three Canadian-born children and he also has three Canadian-born children arising from other relationships.

Ricardo has no contacts or family in Jamaica, and he grew up in the Regent Park neighbourhood of Toronto. He claimed in his submissions for permanent residence how, as a child, he was physically abused by his father and spent time in the care of the Children’s Aid Society. He also explained that he was surrounded by substance use growing up, began using alcohol at a young age, and developed a dependency on crack cocaine, which led to related criminal convictions beginning in 1999.

He also stated that he no longer uses drugs but continues to struggle with alcoholism. Since 2010, he has lived at the same address, with his mother and eldest son, who is 26 years old. He is the live-in caregiver for his mother, who is diabetic and requires dialysis three times a week. In June 2003, he was convicted of a drug-related offence and as a result of his criminality, he was found inadmissible and was issued with a deportation order in October 2004. He appealed the removal order to the Immigration Appeal Division (“IAD”) and it was stayed to September 2006 and extended to May 2009.

In August 2010, the IAD declared Ricardo’s appeal abandoned because he did not show up for his scheduled hearing, earlier in the said month. He stated that he was present, but due to his spiritual beliefs, he had changed his name and wanted to be recognized by the name he was given by the Moorish Science Temple of America; not the name under which he was ordered deported.

Ricardo then hired Mr. X, as legal counsel to apply to reopen his IAD appeal. Mr. X filed a single letter, with no supporting evidence, to the IAD requesting a re-opening and in a decision dated January 2011, the IAD denied the application. Ricardo then filed an H&C application in February 2011, with Mr. X’s assistance. On October 14, 2011, IRCC sent a call-in notice to Ricardo in care of Mr. X, requesting that he attend an interview regarding his H&C Application on November 8, 2011; according to IRCC Ricardo never attended. When an officer contacted him, he stated that he was not informed by Mr. X of the interview, and attended the second rescheduled interview on December 1, 2011.

On June 19,2013, Ricardo was granted Stage 1 approval on his H&C application. On July 16, 2013, IRCC sent him a positive H&C decision letter requesting that he submit proof of medical completion and travel document information. Ricardo claimed he did not receive this letter, and was not notified of the Stage 1 approval.  He stated that he did not receive any communications from Mr. X regarding any further obligations in relation to his H&C application.

There was a notation on Ricardo’s IRCC file that several letters sent, phone communications and having a history of not responding to requests. On January 8, 2014, Ricardo’s H&C application was refused for his non-compliance to responding to requests.

On January 11, 2019, Ricardo submitted a request to re-open the processing of his H&C application (“Stage 2”), with detailed submissions with respect to H&C factors and that Mr. X did not inform him of the requested information.

Ricardo sought judicial review of the officer’s negative decision, alleging several legal issues, particularly that the officer fettered its decision. The judge found that the Officer fettered their discretion by refusing to consider all the relevant circumstances in Ricardo’s case and allowed judicial review and referred back the matter to an officer for redetermination.

Good luck.

SUKHRAM RAMKISSOON is a member of CICC and specialises in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario Phone 416 789 5756.