IMMIGRATION: Court intervenes to keep family together

IMMIGRATION: Court intervenes to keep family together

The willingness of Canada’s immigration department to break up families knows no bounds. Thankfully, it has the Federal Court of Canada to answer to.

When our immigration laws underwent a major rewrite in June 2002 our immigration department took the opportunity to address a persistent and prickly problem.

Some applicants were immigrating to Canada without disclosing their spouses and/or some of their children. Often, the only reason for non-disclosure was that the processing of their application took so long that, in the meantime, they got married or had children. They figured that they would proceed to Canada first and then sponsor their new family members once they got settled here.

Others failed to disclose their family members because they knew that their spouse or child was either medically or criminally inadmissible to Canada. They reckoned that once they got here they would figure out some way of bringing them to Canada. If that was not possible, they would simply provide for them from here.

Our government could have imposed stiff new fines or even imprisonment for a failure to disclose. Instead, it chose the cruellest path of all. Our legislators decided to permanently exclude the undisclosed relatives from the “family class”. In other words, the undisclosed spouse or child becomes, in law, unrelated to their parent or spouse and can never be sponsored to Canada as a family member…ever.

Since 2002, many thousands of families have been kept apart because of this very draconian and heavy-handed measure. Their only recourse was to apply for permanent residence on humanitarian grounds.
Of course, such applications depend on the sympathy of the very same department who advocated for this provision in the first place. Needless to say many, if not most, of these applications were refused.

One such case was that of Daniel Samano. In September 2004, Samano got married to his bride, Suhaila while awaiting his application for permanent residence to be finalized in Damascus. Not knowing the consequences of his actions, Samano withheld from the Canadian embassy information about his marriage since he was afraid that the embassy would take back the visa and refuse his application. With visa in hand Samano packed his bags and headed for Canada. Upon arrival here, he was not asked any questions at the airport about his current marital status and was landed.

In May 2005 he sponsored Suhaila. Her application was quickly refused in November 2006 on the grounds that she was no longer considered a member of the family class. A second application was filed, this time on humanitarian grounds. This application was now not just for Samano’s wife, but also for their newborn son, Odicho.

Not surprisingly, in February 2007 Suhaila and Odicho’s humanitarian applications were both refused. Their counsel quickly asked for both cases to be reconsidered. In what could only be considered wanton cruelty, the embassy exercised its “humanitarian” jurisdiction and allowed the boy to come to Canada…but not his mom.

On appeal, Madam Justice Heneghan of our Federal Court ruled that the officer did not appear to understand that our humanitarian rules are intended to ameliorate the hardship of applicants who are in some breach of our statutory requirements. The officer seemed to have ignored the fact that the marriage appeared to be genuine and that the couple wanted to remain together and with their child.

On September 16th …precisely four years to the day that Daniel and Suhaila were married…the court set aside the refusal and ordered that the application be reconsidered again but by another officer.

Notwithstanding this success, a life together in Canada may still be a long way off for this forsaken and fragmented family.

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Guidy Mamann practices law in Toronto at Mamann & Associates and is certified by the Law Society of Upper Canada as an immigration specialist. Reach him confidentially at 416-862-0000 or at reporter@migrationlaw.com.