Judicial review granted in case of husband who was ordered deported

Immigration matters

Sukhram Ramkissoon


Immigration Matter

Judicial review granted in case of  husband who was ordered deported

Canadian immigration policy and legislation have a long tradition of supporting family reunification which permits both recent immigrants and long  established Canadians to  be reunited with members of their family. The reunification of families in fact is a principle enshrined in the Immigration and Refugee Protection Act.

In a recent ruling, Mr.Justice Michel Shore of the Federal Court of Canada stated that “Unlike elsewhere, every attempt is made in Canada to ensure families are kept together, recognizing that family unification and reunification are goals that are acknowledged and understood by the three branches of government, except in extraordinary circumstances where one of the family members could be a risk to Canada.

The judge made the ruling in a judicial review of a case in which a Mexican refugee claimant was ordered deported.

Let us look at this case.

I will refer to the applicants for  judicial review as “the Mexican Family.”  This family consists of a husband and wife who are citizens of Mexico, and  their three children. One of them is Canadian by birth and the others were born in the United States.

In 1990, the husband entered the United States as a visitor.  In November 1996, he was charged with (i) conspiracy to possess with intent to distribute and to distribute a substance containing methamphetamine, and (ii) possession with intent to distribute.  In July 1997, he pleaded guilty and was sentenced to 60 months imprisonment and agreed to deportation upon his release which was in 2001.

In June 2008, he arrived in Canada with a visitor’s visa and in December of that year made a claim for refugee protection. In June 2012, he filed an application for permanent residence under humanitarian and compassionate (H&C) grounds which was denied. Because of his convictions in the USA, his refugee claim was refused, and he was issued a deportation order in February 2014.

He then filed a Pre-Removal Risk Assessment (PRRA) application, followed by a second H&C application. In July 2016, both applications were denied.  He then sought judicial review on both applications, which was dismissed in February 2017.  In October 2017, he made a third H&C application and  at this writing a decision has not yet been made with respect to this matter.

In January 2018, Canada Border Services Agency (CBSA) informed the husband that he has been scheduled to return to Mexico in February 2018.  He then made a request to defer his removal from Canada. This request was made on several grounds, such as the psychological hardship that the family will face, the pending H&C application, the mental health of his wife and his economic support for his family.

The officer refused the request. Addressing the psychological hardships, he ( the officer)  stated that considering the post-traumatic stress disorder [PTSD] diagnosis of his 12-year-old son, he found this issue was of “long term concern.” The granting of a “short term deferral” would only delay his removal from Canada and it would still have a negative impact on his family, particularly his 12-year-old son, sooner or later, the officer said. The officer concluded that his children would remain with their mother in Canada and, while he is in Mexico, he can communicate daily with his family via Skype.

The officer also noted the wife’s psychological problems and pointed  out that these issues were likely to regress if her husband was deported to Mexico.  However, because the wife was also issued a removal order from Canada, she could accompany her husband, the officer said. He also noted that mental health services are available in Mexico for his wife and children, if needed. The officer concluded that the removal order must nevertheless be enforced.

The Officer was convinced that the husband’s H&C application did not differ from previous applications. He also noted that the husband can no longer work lawfully in Canada because his work permit became invalid when a removal order was made against him. and a result, he could not legally support his family financially.

In the judicial review, the Court agreed that the officer was silent on the 12-year-old’s suicidal ideation. According to a recent psychological report that was provided to the officer, it was clear that the child “did report that he experiences recurrent thoughts related to a suicidal act” if he were to be removed from Canada or if the family returned to Mexico. According to the psychologist, the child “requires continued psychological treatment and support. A major disruption, such as a move back to a country he regards with terror, would most certainly not be in the best interests of the child.”

The judge ruled that this omission in the decision constitutes a reviewable error made by the officer.  He further ruled that the best interest of all the children must be considered. The psychological evidence stated that “none of the family members have fully recovered from the past trauma they survived. They are still fragile. The mental well-being of all members of this family are at high risk, if this family loses the husband to deportation.”

The Court found that the decision was unreasonable, as the officer committed a reviewable error by failing to address significant aspects of the evidence. The Court granted judicial review and the decision of the officer was to be remitted to a different officer for re-determination.  

Good luck to the Mexican family.

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