By Sukhram Ramkissoon
It is a well-established fact that under Canada’s immigration law, permanent residents who commit crimes in Canada can be returned to their countries of nationality because of their criminality.
Let us examine a very lengthy, stressful, agonising, painstaking and compassionate immigration appeal hearing process. Andrew (not his real name) is a 57-year-old male from the Caribbean who came to Canada when he was two years old and is a permanent resident. He has been under a removal order to leave Canada for serious criminality for more than twenty years.
In 1999, he was ordered deported due to convictions for trafficking cocaine, break and enter with intent to commit, possession for the purpose of trafficking, assault and assault causing bodily harm. Since then, he has been battling with the immigration authorities to remain in Canada.
Andrew has a long and complicated procedural history; he appealed the deportation order to the Immigration Appeal Division (IAD) and in the same year, the IAD concluded that Andrew’s “behaviour has not stabilized, his delusions continue, and he has a continuing propensity for violent behaviour.” Andrew’s appeal was dismissed, finding the risk to the public would be too great. This decision was challenged at the Federal Court but the application for judicial review was dismissed.
Andrew’s counsel then made an application to re-open his appeal. The IAD agreed to re-open the appeal because Andrew was unable to appreciate the nature of the IAD proceedings when his appeal was dismissed. Another IAD hearing was held, and in 2005, the IAD stayed his removal order for three years. Even though Andrew had substantially complied with the conditions of the stay from 2005, the Minister requested an oral review and the IAD was trying to have the matter scheduled for a hearing since 2008.
In 2019, another Designated Representative (“DR”) was appointed as it was concluded that Andrew’s medical conditions makes him unfit to give evidence on his own. In 2021, the matter was adjourned indefinitely. After a few pre-hearing conferences counsel requested an oral hearing which was granted to be heard in March 2023.
The reason for the delay in scheduling the hearing was because Andrew is profoundly mentally ill. He has “a severe form of schizophrenia that is entirely treatment resistant.” One of his several psychiatrists describes his prognosis as “bleak.” He has been an involuntary inpatient at the Centre for Mental Health Care in Penetanguishene since 2004. He is so incapacitated by his mental illness that he has had a DR since his case was first heard at Immigration Division almost 25 years ago. Andrew, unable to appreciate the nature of the proceedings, now has another DR and a lawyer. His mother is his substitute decision-maker.
Due to the above issues, the presiding member declared him a vulnerable person prior to his hearing. Andrew was not been able to participate in his hearing before the member or provide any testimony in support of his appeal.
Andrew has his mother, father, two brothers and extended family living in Canada who have all provided letters of support in his appeal; his mother testified at the hearing. In all the IAD decisions and the Federal Court noted her unwavering support of her son. They observed that her love for her son was readily apparent to the presiding member at this hearing.
Andrew’s mother made a heartfelt plea at the end of her testimony, asking the member for mercy. She said “he is not a little boy anymore. He is a man. He never had a life. Whatever he has left, please do not take him away from us.”
At the conclusion of the hearing, Minister’s Counsel remained concerned about the danger Andrew represents to the public. She took the position that she could not consent to the appeal being allowed and stated that any hardship to Andrew is outweighed by his risk to public safety. Andrew’s counsel argued that the appeal should be allowed.
The presiding member, amongst other favourable reasons in granting relief, stated that she has little difficulty in concluding that the family relationships in this case are close and that removing Andrew to his country of citizenship would cause them significant hardship; this factor weighs in favour to grant him special relief.
The possibility of Andrew’s rehabilitation was critical in the member’s analysis. She stated that this is an interesting and unusual case because Andrew’s mental illness is so incapacitating that he could not participate in the hearing. He is currently admitted to the highly secure provincial forensic program. He is detained under the Mental Health Act because he continues to present a danger to himself and others and has been an involuntary patient since 2004. It is unlikely that this is going to change dramatically in the foreseeable future.
The presiding member further stated that given the precarious and unique situation of Andrew, she has little difficulty in concluding that there would be severe, disproportionate, and even life-threatening hardship to him if he were removed to his country and this factor also strongly weighs in favour of granting special relief. The presiding member ruled that there are sufficient humanitarian and compassionate reasons to allow the appeal as Andrew has met his burden to show that, in all the circumstances of the case, he should not be removed from Canada.
The member allowed the appeal. As a result Andrew’s deportation order was set aside as the IAD found that he has not lost his permanent resident status based on the humanitarian and compassionate grounds in his matter. Andrew and his family now have no fear of him being deported to his country.
This case presents a clear analysis of the IAD’s jurisdiction to allow a person to remain in Canada, based on humanitarian grounds, although there may be a risk to the public.
SUKHRAM RAMKISSOON is a member of CICC and specialises in Immigration Matters at 3089 Bathurst Street, Suite 219A, Toronto, Ontario. Phone 416 789 5756.