Judge sets aside direction to report for removal

Immigration Matters: Sukhram Ramkissoon

Immigration Matter

Judge sets aside direction to report for removal

As we welcome the new year, let us remind ourselves, dear readers,  to act responsibly to avoid serious problems.

Permanent residents of Canada  should also be reminded to apply for Canadian citizenship,  once they become eligible.

Although the benefits of Canadian citizenship are well known, many people in the Caribbean  community in Canada have not applied for citizenship.

Let us look at the case of  a Jamaican man who has resided in Canada for many years but never applied for citizenship and  has found himself in trouble with the law.

James (not his real name)  was born in Jamaica in 1985.He came to Canada with his parents when he was two years old and has been  in Canada since then.

He lives in Toronto with his wife, who is a Canadian citizen, and the two children of the marriage are Canadian citizens. Both spouses have children from prior relationships; James has a child who lives in another city with his mother, and his wife has two children who live with James and his wife.

 James is being treated for substance abuse and depression at the Centre for Addiction and Mental Health in Toronto.

James has been convicted of several offences, the first of which was under the then Young Offenders Act. In 2012, he was convicted of assault causing bodily harm against the woman who became his wife. As a result of  his convictions, he was found inadmissible to Canada for serious criminality under  the Immigration and Refugee Protection Act and was issued a deportation order in May 2013.

James appealed to the Immigration Appeal Division (IAD) but the appeal was dismissed in 2016. With the assistance of counsel, he applied for a pre-removal risk assessment (PRRA) and for permanent residence on humanitarian and compassionate (H&C)grounds, but both were refused in March 2017. An application for judicial review of the H&C decision in the Federal Court was dismissed in September 2017.

In November 2017, James applied for permanent residence on H&C grounds a second time, noting his mental health and addiction issues. The application is still being processed after more than two years, which is surprising in light of the following facts.

In February 2019, the  Canada Border Services Agency (CBSA) took the first step to enforcing the deportation order by sending the applicant a direction to report on March 13, 2019 for removal from Canada.

James then requested that the CBSA defer his removal and he notably relied on medical reports that serve as evidence of harm that would result to his mental health if he were removed to Jamaica. They attest to a diagnosis of depression, substance use and symptoms of anxiety and post-traumatic stress disorder. Based on a telemedicine interview, the attending psychiatrist wrote on 30 January 2019:

I do think it very likely that he would try to kill himself and eventually succeed if he were to be deported to Jamaica. […] It is extremely important that James remain in Canada with his family who are required to assist him with his mental health and addiction issues and be able to continue to access mental health treatment here.

Following the commencement of the present proceeding, the officer refused to defer the removal and provided notes to file dated March 4, 2019 that served as reasons. On March 6, 2019, a judge of the Federal Court granted, with very strong reasons for doing so, James’ motion for a stay of removal.

 James had argued that the officer arbitrarily discarded new medical evidence in his case, particularly the report that describes a serious risk of his death by suicide, if he is separated from his family and removed to Jamaica. He said  that this is compelling evidence that he needs to remain in Canada while his H&C application is processed and considered.

The  judge ruled that evidence of such a serious risk deserves careful consideration, but the officer assigned it low weight while providing inadequate justification for doing so and stated that the decision is unreasonable and the matter should be returned to the CBSA for redetermination by a different officer.

The  judge further stated that he accepts that James pending H&C application is not generally sufficient ground to interfere with the enforcement of a valid removal order. But on the mental health issue, the  judge noted that the depression and addiction are common threads through all the medical evidence submitted by James to the officer and that this consistency, combined with the seriousness of the risk described by the psychiatrist —that James  is “very likely” to die by suicide—required careful consideration of the report, even in the context of a deferral request and the limited discretion available to the CBSA officer. 

The presence of James family is also noted by the psychiatrist as essential in the effectiveness of James ongoing treatment and his well-being.

The  judge granted judicial review and the decision made on March 4, 2019, not to defer the removal is set aside.  The  judge did not  remit the matter for redetermination by another CBSA  officer since circumstances have changed and it is up to CBSA to issue another direction to report, if it still wishes to execute the removal order.

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, Ontario. Phone 416 789 5756.