Deferral

Deferral is defined as “a temporary measure necessary to obviate a serious, practical impediment to immediate removal”^[1].  A removal order may be stayed by the CBSA pursuant to section 50(e) of the Immigration and Refugee Protection Act (IRPA).[2]   The case law has established law that an Enforcement Officer has a discrete scope of discretion in deferring the execution of a removal order. In Newman^[3] the Honourable Justice Gascon stated at paragraph 28:

An enforcement officer may consider logistical or practical factors influencing the timing of removal (such as travel arrangements, illness or health issues, the end of a child’s school year, imminent births and deaths, etc.

This is balanced against the purpose of s. 48(2) of the IRPA is to immediately remove persons without status as soon as possible.  There must be more at stake than personal inconvenience. The harm and risk to the person(s) if removed must be irrevocable and permanent:^[4]

It has been recognized that there is a discretion to defer removal though the boundaries of that discretion have not been defined. … One instance of a policy which respects the discretion to defer while limiting its application to cases which are consistent with the policy of the Act, is that deferral should be reserved for those applications or processes where the failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment in circumstances and where deferral might result in the order becoming inoperative. The consequences of removal in those circumstances cannot be made good by re-admitting the person to the country following the successful conclusion of their pending application.[5]

In Mauricette, the Honourable Justice Shore found that

“[t]here are no set conditions that must be met in order for an Officer to exercise his/her discretion to defer removal; therefore, where there are compelling circumstances that make it necessary for the Officer to defer removal, then, justice would require that the Officer exercise that discretion”.^[6]

In other words, exceptional short-term factors must create an “obstacle” to removal.  Each case turns on its own facts and can include the following reasons:

1. Serious risk factors upon return to health and safety;
2. Short term best interests of a child affected by the decision;
3. A pending decision on an immigration application that is likely to be decided very soon;
4. A pending decision on a court application that is likely to be decided very soon;
5. Imminent personal events such as the birth of a child;
6. Recent events such as a death in the family;
7. Issues with identity and travel documents; and
8. Criminal court proceedings that create an impediment to removal.

Stay of Removal

The Federal Court has previously held that a pending application for judicial review may justify granting a stay of removal until such time a decision is rendered by the Federal Court on the underlying application. For instance, in the recent case of Tung,[7] the Honourable Justice Southcott, in granting an application for a stay of removal, decided:

[8] The Applicant is now 63 years old, has been living in Canada since 2001, and has been living with her daughter since 2004. Both her children and her grandchildren reside in Canada. The evidence is that the Applicant has no pension or prospects of employment and that, while her daughter provides her with room and board in the daughter’s house in Canada, she and her brother do not have the financial means to support their mother if she were to return to China […]

[9] I am satisfied that the effect of removing the Applicant to China pending determination of her application for judicial review would constitute more than the normal hardships attendant upon removal. This case has some commonality with Patel v Canada (Public Safety and Emergency Preparedness), 2016 FC 496, in which the applicant’s age, family ties in Canada, and lack of prospects in the country of removal combined to establish irreparable harm.

We further note that there is a line of jurisprudence where the Federal Court granted stays of removal on the basis of pending applications at the Federal Court. For instance, in Gallegos,[8] the Honourable Justice Barnes allowed a stay of removal motion until the determination of the Applicant’s application for leave for Judicial Review, and, if granted, until the determination of that application on the merits, after the refusal of his immigration application. IN another case involving a Pre-Removal Risk Assessment (PRRA) application, the Honourable Justice Shore in Koca[9] allowed a stay of removal until the decision was rendered in the underlying application for leave and judicial review.  In another case the Federal Court in Singh[10] stated:

Further, when there exists credible evidence that the deportation is likely to have a serious impact on the emotional and psychological wellbeing of the parties involved, as is the case at bar, this constitutes irreparable harm. 

Parties include the short-term best interests of a child affected by the decision.  In Bonil Acevedo,[11] the Honourable Justice Shore explained:

Although the removal officer does not have the discretion to make a full determination on the issue of the best interests of children, the appropriate forum for such a full consideration is through the Applicant’s sponsorship/H&C application. Nevertheless, a removal officer, in the appropriate circumstances, does have the discretion to defer removal until such time as the best interests of the child are fully considered in this process.

For example, the courts have frequently endorsed the argument that it is reasonable to defer the removal of a foreign national to allow for the children to complete the school year. Writing in Wang, the Honourable Mr. Justice Pelletier as he then was, canvassed the circumstances that would necessitate the deferral of a removal order. After examining the obvious situations, such as a need to obtain valid travel documents he noted that there were additional reasons,

“outside the narrow compass of travel arrangements but which are affected by those arrangements such as children’s school years, pending births or deaths. These too could influence the timing of removal. These arise even on the narrowest reading of section 48 of the Act.”^[12]

This principle was confirmed in both Simoes^[13] and Munar where it was held that “it is certainly within the removal officer’s discretion to defer removal until a child has terminated his or her school year.”^[14] Further, in Schleicher,^[15] the Honourable Justice Kane held “the jurisprudence has established that enforcement officers are required to consider the short-term best interests of a child in a fair and sensitive manner.”  In all, there are a number of Federal Court decisions holding that a CBSA officer, in refusing to defer removal, commits a reviewable error if the Officer fails to consider the negative impact on the Applicant’s family, including a child, in Canada which would flow from the person’s removal.[16] So, on one hand there may well be options in your case.  On the other hand, there may not be a realistic option to stop removal.  In either case, you must know and not become vulnerable to unscrupulous individuals who may provide unrealistic options at a time of desperation.  For more information on Deportations please click here.

Thank you for reading.      

Sources

The post Can I Stop My Deportation? first appeared on Bellissimo Law Group.

In order to stop the immediate removal of the family from Canada, our office brought an urgent stay of removal motion to the Federal Court. During the hearing, the Federal Court judge accepted our arguments that the deferral officer mischaracterized the evidence and arguments in the deferral request and failed to consider the short-term interests of the children, even though was required to do so. Consequently, the judge granted the stay of removal order for the whole family, noting that such stay would be in the best interests of children, two of whom left their country of nationality at a very young age, and the third is a citizen of Canada.

The post This Week’s Success Story: Stay of Removal Order Granted to Family of Five first appeared on Bellissimo Law Group.

When refugee claimants initiate a claim for protection they are issued a Departure Order and pursuant to section 49(2)(d) of the Immigration and Refugee Protection Act, (IRPA) this order will automatically become a deportation order 15 days after a claim is withdrawn if the claimant has not left the country.  This occurs without any further notice to claimants by what is referred to as “by operation of law”. Unfortunately, many individuals find themselves in this position as they do not realize the clock is ticking. In fact, many claimants in my experience believe they are abiding by all requirements including those that are diligently complying with their conditions to report to the Canada Border Services Agency (CBSA).

To this extent and in fairness to claimants, the “Departure Order” issued does not explicitly set out the requirement to leave Canada within 15 days of withdrawal of a refugee claim. Rather, the Order reads:

This order will be deemed to be a deportation order where no certificate of departure is issued within the applicable time period specified in the immigration regulations.

Documentation issued as part of the withdrawal similarly does not note the requirement to depart within 15 days. Most claimants do not benefit from the assistance of counsel at the time of withdrawal. So, the timelines in the Regulations are not reasonably known to an unrepresented refugee claimant and some would argue properly communicated.

So, despite a claimant leaving soon after withdrawing, but not within 15 days, a deportation order is made and the claimant is inadmissible to Canada.  These individuals will require an Authority to Return to Canada (ARC) in order to re-enter Canada, as per section 52(1) of the IRPA and section 226 of the Immigration and Refugee Protection Regulations (IRPR).

 I have reviewed cases after the fact where a claimant has taken no additional steps to extend a stay in Canada or use additional Canadian administrative and/or judicial resources, attend removal interviews, have their passport returned to them by the CBSA, purchase their own ticket to return and fully cooperate with the CBSA, and yet this all has no bearing on the departure order becoming a deportation order.  It is simply a function of time and CBSA officers have no discretion.   These factors do however weigh heavily in claimants favour in seeking an ARC.

Therefore, the timing of withdrawing a refugee claim is critical and advance planning is required to attempt to avoid a deportation order. In fact, efforts to comply with authorities, including purchasing an airline ticket in advance of removal meetings is often advisable if timing is very tight. Naiveté regarding the requirements of the IRPA; and a lack of understanding of the requirements of a departure order converting to a deportation order is far too common.  It would be very helpful if both Immigration, Refugees, & Citizenship Canada (IRCC) and CBSA would provide clearer messaging to claimants at the time of a refugee claim and at the time of removal to avoid this far too common but serious consequence.

For more information on Removal Orders, please click here.

The post I Withdrew My Refugee Claim & Left Canada: Why Do I Have a Deportation Order? first appeared on Bellissimo Law Group.

Today I write about a rule with equally harsh consequences but that affords no discretion.

Since June 2013, permanent residents sentenced in Canada to prison for six months or more for a crime have been deported to their country of origin without access to any appeal. And this right to appeal is a critical safeguard for those facing deportation.

The Immigration Appeal Division, the tribunal which hears and decides on these appeals, can consider humanitarian and compassionate factors such as:

• The seriousness of the crime;
• How long the person has lived in Canada;
• The person’s ability to be rehabilitated;
• The difficulties for the person’s family and children in Canada if the person were removed; and
• What hardships the person would face in returning to the country of origin.

A permanent resident who came to Canada as a young child with his parents, lived his entire life here, has a family of his own, has never returned to his country of origin, and has received a six month sentence in Canada, would have no access to an appeal and could mention none of these reasons for why he should not be deported.

Six-month criminal sentences are not uncommon. They could flow from a repeat offence or offences that carry mandatory minimum sentences.  Certain serious crimes committed outside of Canada, regardless of conviction or sentencing, can also lead to deportation without access to an appeal.

Naturalized Canadian citizens under the circumstances above, however, would not face deportation. So permanent residents should consider applying for citizenship if they want to avoid the risk of deportation. Should they or any of their family members face criminal charges after becoming citizens, while they would still have to deal with the criminal consequences, they would not be deported.

If you are a permanent resident who was charged with a crime, it is important that you consult with a lawyer or lawyers who understand both the criminal and immigration issues involved.

For more information of Deportation, please click here:

(Sources)

The post Criminal Charges and the Immigration Consequences for Permanent Residents first appeared on Bellissimo Law Group.

IAD Determines it has Jurisdiction over ARC refusals

A mother applied to sponsor her son to Canada, while the son was in Canada as a failed refugee. In order to complete processing on the overseas sponsorship application, the son had to leave Canada. As a failed refugee, he left Canada with a Deportation Order and so required Authorisation to Return to Canada (ARC). The Visa Office refused ARC, finding that he had taken advantage of Canadian tax payers by making a ‘spurious’ refugee claim and later a Pre-Removal Risk Assessment application, and so refused his application for permanent residence.

The mother appealed this decision to the Immigration Appeal Division (IAD). During the hearing, submissions were specifically requested to address the jurisdiction of the IAD to consider ARC refusal. The Board Member determined that the IAD not only has jurisdiction to consider ARC refusal, but to consider humanitarian and compassionate considerations to override ARC refusal. In considering the family’s circumstances, the Board Member allowed the appeal.

The post This Week’s Featured Success Story! first appeared on Bellissimo Law Group.

Large Company Successfully Granted LMIA’s

A large company approached us for assistance transferring short-term specialized trade workers into Canada.  Using Employment Service Development Canada (“ESDC”) exemptions to advertising for specialized workers as well as their 10 day service processing for high-demand skilled trades, we were able to obtain Labour Market Impact Assessments for these workers in less than one week.

We are now preparing the work permits for these workers and expect the same positive result.

Families Granted Refuge in Canada

Over the last few weeks, three more families were granted refuge in Canada after their claims for protection were allowed. All three claims were based on religious persecution suffered in the claimants’ countries of origin. In advance of the hearings, we helped these claimants prepare for oral testimony and ensured that they had sufficient documentation to substantiate their religious affiliations. As sectarian violence continues to escalate across much of the Middle East, these families are very grateful to be able to remain safely in Canada.

Deported Refugee receives ARC and PR Visa

A young woman who had made a refugee claim in Canada, to be refused and deported from Canada afterwards, entered into a relationship with a Canadian man while still in the country. The couple retained our office to assist with an overseas spousal sponsorship and, if that was approved, an application for Authorisation to Return to Canada (ARC). On making a refugee claim in Canada, claimants are given a departure order; many claimants do not leave Canada within 30 days of their claim being refused and so the departure order becomes a deportation order and the individual requires ARC (special permission) to return to Canada in the future.

Our submissions explained why our client had overstayed in Canada, emphasizing her compliance with immigration authorities and her willingness to cooperate even by purchasing her own ticket to leave Canada. Her applications were accepted, and she was granted both ARC and the permanent resident visa. She will soon re-enter Canada to be reunited with her husband.

Successful Work Permit, Study Permit, and Visitor Visas for Family of 5

A family of five, two adults and three children, approached our office wanting to stay in Canada by way of applying for a study permit for one of the adults.  The situation was difficult because they had no status in Canada when they contacted our office and they already spent an extended period of time in the country.  Prior to coming to Canada, they were issued multiple entry visas valid for two years. However, when they entered Canada, they were granted visitor status for six month only. They mistakenly thought that their entry visas entitled them to stay in Canada for two years, which was not the case.  They wished to stay in Canada during the processing of the study permit instead of going back to their home country and applying from there.  We managed to restore their status in Canada as visitors. Then, we applied for a study permit for one of the parents. The permit was granted without an interview, which would have been outside of Canada.  Subsequently, the other parent was issued a work permit and the children’s status as visitors was extended, giving them the right to study in Canada.  The family now has status, enjoying the studies and work in Canada.

Permanent Residency Granted to Medically Inadmissible Parents

We were recently successful in assisting our client in receiving permanent residence for their parents, following an initial medical inadmissibility finding for a medical condition of Hepatitis B. The individual was determined to require medical treatment that was expected to result in an excessive demand.  We assisted in sourcing out the appropriate medical specialists and prognostic findings, and in accurately determining what medical care would be required in their intended province. Following extensive research and a comprehensive mitigation Plan, presented together with our specialized legal submissions, the medical admissibility finding was overturned without having to resort to litigation.

To read our clients testimonials, please click here.

To read more success stories, please click here.

The post This Month’s Success Stories! first appeared on Bellissimo Law Group.

Her family believes that she was given bad advice on how to remain in Canada; Kandasamy had claimed refugee status instead of having her family sponsor her.  The only way her deportation could have been stopped is if immigration officials had granted Kandasamy a humanitarian appeal to stay on compassionate grounds. For the time being she must remain in Sri Lanka and apply for permission to re-enter Canada.

Click here to learn about Family-Class Sponsorship.

Sources

The post 70 Year Old Grandmother Deported to Sri Lanka first appeared on Bellissimo Law Group.