A recent decision reported on the Federal Court website tells of a 47-year-old Pakistani citizen who I will call Abe who has a long immigration history and was removed from Canada.

He was successful in having an Appeal Division decision set aside by the Federal Court and his case is to be re-determined by another appeal member.

His sponsor is a 41-year-old Canadian citizen who came here from Pakistan in 1995. She has two daughters from a previous marriage who at the time of the appeal division decision were age 14 and 17. They are Canadian citizens and have lived only in Canada.

The sponsor has sole custody of the children, although her ex-husband retained access rights.

In the summer of 2008, the sponsor was introduced to Abe through a mutual friend. They were married in May 2009.

He came to Canada and made a refugee claim in July 1997. This was withdrawn or abandoned and Abe left Canada in August 1997. However, because he did not notify Canada Border Services Agency (CBSA) of his departure, the conditional departure order against him when he sought refugee protection became a departure order, then a deportation order and an arrest warrant was issued.

In May 1999, Abe attempted to enter Canada from the United States at a land border crossing in Ontario. He was arrested pursuant to the warrant issued the year before and was returned to the U.S.

In August 1999, he returned to a border crossing in Quebec where he made a second refugee claim.  His claim was refused in November 2000 and leave for judicial review was denied in April 2001.

Abe also applied for a Pre-Removal Risk Assessment (PRRA) which was also denied in 2005.  In April 2006, he failed to report for removal to Pakistan. A second arrest warrant was issued in 2009 and, a few months after his marriage to the sponsor, CBSA notified Abe it would enforce the order.

Abe purchased an airline ticket and returned voluntarily to Pakistan in June 2010. Abe applied for permanent resident status based on the applicant’s spousal sponsorship application in July 2010.

Because a removal order was previously enforced against him, Abe also submitted an application requesting authorization to return to Canada (ARC).

In February 2013, a visa officer determined that the marriage of the applicant and Abe was genuine. However, in March 2013, another visa officer decided not to grant the requested ARC. As a result Abe was found to be inadmissible to Canada because he was deported and did not have consent to return to Canada.

The sponsor then filed an appeal and in July 2015, the IAD dismissed her appeal. She then sought judicial review of that decision. The IAD noted that in the personal history section of Abe’s application for permanent residence Abe falsely stated he was unemployed in Lahore, Pakistan from July to August 1997 when in fact he was in Canada during that time and that he failed to also disclose some of his immigration history in Canada.

As a result the IAD concluded Abe was not accurate, honest, reliable and credible.

The IAD also noted the threshold for a visa officer to grant an ARC is high. However, in considering whether relief is warranted, the IAD may consider humanitarian and compassionate (H&C) factors in addition to factors a visa officer is required to consider in assessing an ARC request.

The IAD also considered the best interest of the children and that they may miss Abe’s presence but there is nothing impeding them from visiting him in Pakistan. Finally, the IAD stated that, given the genuineness of the marriage, being separated presents significant emotional hardship for the sponsor but special relief requires more than this, and that Abe shamefully flaunted the Canadian immigration system.

The judge stated, “In my view, the concern in this matter is as identified by the sponsor, being that the IAD unduly focused on Abe’s prior lack of compliance with the IRPA. In that regard I would note that a great deal of the decision is devoted to Abe’s immigration history. And while the IAD stated that Abe ‘flaunted Canadian immigration system shamefully’, it is not at all clear that it also assessed the relative seriousness of his non-compliances with the IRPA as weighed against the applicable H&C factors.”

The judge ruled that in addressing factors to consider, the Immigration Canada Operational Manual states that a bona fide marriage is an example of a factor that would normally constitute a compelling reason for returning to Canada. While not necessarily determinative in an H&C assessment, separation of married spouses is a serious matter with profound consequences that requires consideration.

“Given the finding that this marriage was genuine and that separation resulted in significant emotional hardship, in my view, the IAD should have explained why it was not a compelling reason for granting the appeal in this case.

“Further, other factors and evidence were not addressed and, therefore, were not balanced by the IAD.  And, finally, the IAD erred in its best interests of the child analysis,” ruled the judge.

The decision was set aside to be re-determined by another panel member.

Sukhram Ramkissoon is a member of ICCRC and specializes in immigration matters at3089 Bathurst St., Suite 219A, Toronto. Phone 416-789-5756.