Immigration Matters Sukhram Ramkissoon
Federal Court orders second review for deportee
As I have noted in previous columns, the Immigration and Refugee Protection Act (IRPA) allows everyone the right to seek an exemption under IRPA for the purposes of applying for permanent residence from within Canada.
Last week, I wrote about a person who was in Canada for several years, without status and had no contact with the immigration authorities.
This week, I will discuss the case, recently reported on the Federal Court website, of a person who was a permanent resident and deported from Canada but returned and after many years in the country, submitted a permanent resident application on Humanitarian and Compassionate (H&C) grounds.
James (not his real name) sought judicial review of the decision of a senior immigration officer who refused his application for permanent residence.
A citizen of Jamaica, James first entered Canada in 1990 as a permanent resident. He was convicted on three counts of drug trafficking in May 1997, and deported in January 2000.
Later that same year, he returned to Canada without status and has remained in the country since then.
Back in 1999, he got married and has fathered two children with his wife. The children are now 19 and 16 years of age respectively. He is also the stepfather of his wife’s daughter.
His application for permanent residence on H & C grounds was based on his establishment in Canada, his familial ties to Canada, including his wife, mother and sisters, as well as the best interests of his children.
It should be noted that because of his criminal record, James could obtain status in Canada at that time, only through an application on H & C grounds. He was eligible to seek, and in fact had applied for, a suspension of his criminal record. His now adult step daughter and 19-year-old son are not “children” under the IRPA, in the absence of evidence of dependency.
James submitted that the decision to refuse his H&C application was unreasonable because the immigration officer failed to consider all of the evidence, including his establishment in Canada and letters of support from family and friends.
He also argued that the officer unreasonably assessed the best interests of his children. But the Minister of Citizenship and Immigration submitted that the immigration officer’s decision was reasonable and was made with regard to all of the evidence before him.
However, in his decision, the judge stated that according to case law, the standard of reasonableness requires that a decision be justifiable, transparent and intelligible, falling within a range of possible, acceptable outcomes that are defensible on the law and the facts.
And he ruled that the decision of the immigration officer is not reasonable because the reasons do not show that the officer considered the totality of the evidence, including evidence of family relationships and the marital relationship.
The judge allowed the application for judicial review and set aside the negative decision.
The matter was remitted to another officer for redetermination. This means that James will have another opportunity to submit updated information to establish why his application should be granted. By then he should be in possession of a Record of Suspension and no longer be considered criminally inadmissible to Canada.
Good luck, James.
SUKHRAM RAMKISSOON is a member of the Immigration Consultants of Canada Regulatory Council (ICCRC) and specialises in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto,