How A Deported Man Was Re-United With His Wife By Canada Immigration After 8 Years Separation?

Canada immigration requires Authority to Return to Canada (ARC) for those who have been deported from Canada. Here follows a sample of our ARC submissions to Canada Immigration that led to re-unification of a couple who was separated for 8 years.

FACTS – The relevant facts of this case are as follows:

  • On June 25, 2002 Mr Sandhu entered Canada without a valid visa and made a refugee claim. He entered Canada after residing in USA for 6 years without status.
  • On July 22, 2002, Mr Sandhu married to Parkash Kaur, a permanent resident of Canada.
  • On June 18, 2003, the RPD found that Mr Sandhu had abandoned his refugee case. As a result he was issued a removal order.
  • The removal order became deportation order after 30 days because the client did not possess a travel documents to leave Canada.
  • In February 2004, about 6-7 months after the removal order, MrSandhu was deported from Canada after receiving the travel documents.
  • On February 17, 2005, the client was interviewed by the Visa officer in New Delhi and his application for Permanent residence was rejected because the Visa officer found that the marriage of the client with Parkash Kaur was not genuine.
  • The client’s wife appealed the refusal to IAD, and on February 11, 2008, the IAD allowed the appeal, set aside the refusal of Visa office and ordered the Visa office to continue the processing of his application.
  • At page 5, para 1 of the CAIPS notes, the New Delhi Visa Officehas notified that MrSandhu has met the test and therefore his marriage with ParkashKaur was genuine in law.
  • As part of the client’s processing, the Visa officer requested the client to obtain Authorization to Return to Canada (ARC).
  • At Page 7 of the CAIPS notes, Fanny Ho, the Regional Program Manager, Inland Enforcement, Edmonton, CBSA, remarks that they have no objection to the issuance of ARC to the client because he was cooperative in applying for Travel document, waived PRRA and purchased his own ticket. On the same page of the CAIPS, it is indicated that the subject does not appear on CPIC and JOIN and therefore there were no security issues in his case.
  • At Page 8 of the CAIPS, the CIChas also recommended that the subject should be granted ARC because he was not a risk to the society and that he was cooperative with the CIC and the CBSA.
  • However, on June 4, 2009, the Canada Immigration Program Manager (IPM) at New Delhi Visa office denied ARC to the subject.The Canada Immigration Program Manager (IPM) denied ARC based on the fact that the subject entered Canada illegally, and remained in USA for 6 years without status.The IPM also noted that though there was no evidence of other criminal acts, the subject’s substantial history of violating law didnot convince him that he will present no risk to Canada.He also noted that he did not believe that the client will successfully establish himself economically in Canada should he return to Canada.
  • There is no security or health concern in this case as no such issue has been raised by the visa office, nor is there any adverse criminal or health record against the client anywhere to date.
  • Despite the subject’s genuine marriage with Canadian permanent resident wife, the IPM decided that there exists no compelling reasons to allow the subject to enter Canada.
  • Eventually, the subject filed an appeal with the Federal Court of Canada through Pace Law Firm against the refusal of ARC.
  • In error of law, the lawyers from Pace Law Firm, filed an appeal against the ARC refusal in the Federal Court, instead of the IRB.  The Federal Court had no jurisdiction to entertain the application as MrSandhu was a member of the family class. The proper avenue of appeal was IRB and not the Federal Court.
  • As a result, in Dec 2009, the leave for Judicial Review of the refusal of ARC was not granted by the Federal Court.
  • Consequently, the client changed his representatives and the case was transferred to our office.
  • The client was advised by our office to reapply for the spousal visa and, at present,the visa office has requested the client to obtain the ARC.
  • However,no updated concerns on the issue of ARC have been provided by the Canada Immigration visa office. Therefore, the client relies on CAIPS notes dated till Aug 20, 2009 with respect to addressing the ARC related concerns.

THE LAW : Relevant Act

The authority granted to the IPM is contained in subsection 52(1) of IRPA (the Act), which states:

If a removal order has been enforced, the foreign national shall not return to Canada, unless authorized by an officer or in other prescribed circumstances.

 Relevant Regulations

Failed refugee claimants such as the applicants are subject to removal from Canada once their claim has been finally determined. Section 223 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 (the Regulations) outlines three types of removal orders, namely, departure orders, exclusion orders and deportation orders.

Under subsection 224(2) of the Regulations, a foreign national who is issued a departure order must leave Canada within 30 days of the order becoming enforceable. Failure to do so results in the departure order becoming a deportation order.

SUBMISSION : The client requests grant of ARC because-

1. The 6-7 months delay in his departure from Canada (that transformed his removal order into deportation order) was not caused by him.

2. He was deported because he abandoned his refugee claim and waived his PRRA.

3. He was not a security or health risk to Canada

4. He has a compelling reason to return to Canada, that is, to resume his family life, which has been disrupted for 7.5 years.

5. A period of 7 years has passed between the infraction of the Immigration regulations and the present ARC submission. The infraction itself was a “not at fault” infraction that led to the transformation of removal order into a deportation order.

ILLEGAL ENTRY, REASONS FOR DELAY IN DEPARTURE AND ECONOMIC CONCERNS

The client respectfully submits that the IPM considered irrelevant factors in reaching his decision on ARC. The IPM considered subject’s illegal entry into Canada and lack of economic benefits to Canada from the subject,as reasons for denying ARC. However, the IPM ignored the relevant factor, that is, why the client did not depart from Canada within 30 days after the removal order?

The jurisprudence of our country  makes it abundantly  clear that the relevant issue in failed refugee cases seeking ARC is ‘what caused the delay in removal, that transformed the removal order into the deportation order, and certainly not the illegal entry of the applicant into Canada’. (Khakh v. Canada, 2008; Sahakyan v. Canada, 2004; Umlaniv. Canada, 2008).

As per the relevant legislation above, it is respectfully submitted that the client would not have been required to apply for ARC, had he departed Canada within the 30 days of the removal order. In other words, the IPM could not have raised the issues of client’s illegal entries into Canada and the US, had the client departed Canada within the time. The issue of client’s economic viability would have not been raised by the IPM, had the client departed Canada within 30 days of the removal order because an ARC is only required if the removal order becomes a deportation order after 30 days.

ILLEGAL ENTRY

In Khakh v. Canada (Citizenship and Immigration), 2008 FC 710 (CanLII),  the Federal court allowed the ARC refusal appeal in similar circumstances despite the subjects’ illegal entry into Canada. The couple in Khakh applied to immigrate to Canada under Provincial Nominee Program after being deported. Initially, they entered Canada illegally after 3 failed attempts to get a Canadian visa in India. Upon landing they applied for refugee status in Canada. When their refugee case was rejected, they left Canada after recourse to courts, which caused delay in their removal.

The differences between the instant case and Khakh are also significant. The Khakhs were not members of the family class whereas in the instant case the subject is a member of the family class. In Khakh, both the Visa office and the IPM consented against the ARC, whereas in the instant case the CBSA and CIC recommended in favour of ARC whilethe IPM decided against ARC. As such, the case at bar is a much stronger case in favour of the ARC.

The court in Khakh found at para 34 that Khakhs’ illegal entry into Canada should not have been  prejudicial to a grant of ARC because their illegal entry into Canada was done for the purpose of applying for a valid yet unsuccessful refugee claim,

…the IPM’s reliance on the applicants’ illegal entry into Canada in 2003, which along with their late departure in March 2006 combined to form the “multiple violations” referred to in the decision, was unreasonable in that no consideration was given to the applicants’ purpose for illegally entering Canada in 2003; namely file a claim for refugee protection, which, as stated in Sahakyan, above, they were entitled to do under the law. While respecting immigration laws is a legitimate policy consideration in the IPM’s exercise of discretion, the evidence before this Court establishes that the applicants’ only true violation was their failure to leave Canada within the time frame mandated.

Hence the truly relevant issue in the instant case is ‘what caused the infraction and not the illegal entry of the subject into Canada’. If the subject caused the infraction, the subject is liable. But on the facts of this case, the subject is not liable for the infraction. Therefore, an ARC request ought to be granted in his respectful submission.

With respect to the issue of illegal entry into Canada, the Khakh v. Canada is supported by Sahakyan v. Canada (Minister of Citizenship and Immigration),2004 FC 1542 (CanLII), 2004 FC 1542, 267 F.T.R. 126, at para 22, where Mr. Justice Harrington eloquently writes,

… No matter how [the applicant] got here, no matter how he may have pitched his chance of success, no matter that he wanted to join his brother, no matter his economic motives, he had the right under Part 2 of the Act to seek refugee protection in Canada. As the Regulations make clear, the fact that his application was not successful has no bearing on his right to seek permanent residence as an immigrant. All he did was run afoul of the timing requirements governing his departure from Canada, and yet he was not asked the reasons for that delay.

Thus the Canadian jurisprudence makes it quite clear that the relevant issue in failed refugee cases seeking ARC is not the illegal entry of the applicant into Canada, but it is ‘whether the applicant has any role in delaying or evading the removal order that transformed it into the deportation order.

REASONS FOR DELAY IN DEPARTURE

It is clear from the CAIPS notes that the client was cooperative and waived his PRRA rights in order to depart from Canada. His only fault was an administrative delay in getting his travel documents. This is clearly a “not at fault” infraction on part of the subject. He did not cause a delay in his departure and as such he submits that he should not be penalized for the delay.

ECONOMIC  CONCERN

The client is a bonffide spousal family class member, therefore, the economic viability of his immigration to Canada ought not to be an issue, for if that would have been an issue, he would not have been granted a bonafide family class member status.

Even if this is a concern, the client respectfully submits that he was new to Canada in 2002-03 and his jobless status at that time was not different from many other new comers who require time to assimilate into the job market.

Moreover,the client submits that his spouse was employed at that time, and he was not on social assistance at anytime. They jointly took care of all legal expenses for their immigration cases from their own savings and did not receive any legal aid.

COMPELLING REASONS

The client submits that his case has compelling reasons in favor of ARC because of his marriage to a Canadian permanent resident who had miscarriage in July 2007 in client’s absence.  The client and his wife have remained in two different countries for over 7 years despite being a bonafide married couple.The Operational Manual OP1, s. 6.2 directs the officers that,

“bonafide marriages” are examples of factors that would normally constitute a compelling reason for returning to Canada. However, no one factor alone should automatically serve to override concerns related to the safety of Canadians and security of Canadian society”.

In the instant case, there are compelling reasons for MrSandhu’s return to Canada to resume his family life. He is not merely seeking return to Canada to attend a family function or for a casual visit. Rather he is seeking return to Canada to fulfil his legitimate commitments to his bona fide wife. There are no overriding safety and security concerns in the case at bar as the client does not have a criminal record. As such an ARC ought to be granted.

PASSAGE OF TIME

The Operational Manual OP1 at s. 6.2 also directs officers to consider “how much time have passed since infractions that led to the removal order”. The client submits that the client was removed in Feb. 2004, about 7 months after the issuance of removal order in June 2003. However this delay was caused due to administrative delay in getting his travel documents from the Indian High Commission. The infraction therefore occurred without client’s fault about 7 years ago. The client submits that the 7 years time between the removal order and the present ARC application ought to be regarded as a sufficient time to warrant ARC.

In Umlani v. Canada, 2008,  the court, while allowing Ulmani’s appeal, regarded 6 years gap between the removal order and the ARC decision as significant, stating at para 63 of the decision that “the removal order against the Applicant took effect approximately 6 years before the Decision. There is no explanation as to why the Officer regards a 6-year gap as being of any significance or relevance on the facts of this case”.

The client has acknowledged that his behaviour was unlawful and unacceptable with respect to his illegal entry into Canada and the US, however, since March 2002, the client has not violated any term, condition or law. He has not attempted to enter any country illegally in the intervening period of last 9 years.

SECURITY  RISK

In conclusion, as in Khakh,at para 36,so in MrSandhu’s case it can be stated that,

…at no time in the IPM’s decision or the VO’s recommendation is any consideration given to the fact that deportation orders are often applied to those individuals who have been found inadmissible to Canada on various grounds including serious criminality, national security, or violations of human and international rights. Unlike in those situations, the applicants in the case at bar are not security risks, nor do they possess criminal records. While they entered Canada illegally, they made a valid, albeit unsuccessful claim for refugee protection. They now seek to return to Canada as immigrants, having already been found eligible as provincial nominees. Accordingly, in the words of Mr. Justice Harrington in Sahakyan, above, their only violation was to “run afoul of the timing requirements” governing their departure from Canada. It strikes the Court as unreasonable that the applicants would be denied authorization to return under such circumstances, especially considering that no consideration was given to their reasons for not departing Canada before March 2006.

Accordingly, in basing his rejection on factors not relevant to their delayed departure, and then not further considering the applicants’ reasons for such tardiness, the IPM erred in his decision. On this basis, the applicants’ application for judicial review in docket IMM-2342-07 must be allowed.

Summing up, it is similarly submitted in Mr Sandhu’s case that, at no time in the IPM’s decision is any consideration given to the fact that deportation orders are often applied to those individuals who have been found inadmissible to Canada on various grounds including serious criminality, national security, or violations of human and international rights. Unlike in those situations, the client in the case at bar is not a security risk, nor does he possess criminal records. While he entered Canada illegally, he made a valid, albeit unsuccessful claim for refugee protection. He now seeks to return to Canada as an immigrant, having already been found eligible as a bonafide spousal family class member. For all these reasons, Mr Sandhu seeks the minister’s authority to Return to Canada.

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