http://www.winnipegfreepress.com/local/case-a-catch-22-lawyer-256802491.html
Case a Catch-22: lawyer Family to appeal enforcement of immigration
regulation
By: Carol Sanders
Posted: 04/26/2014 1:00 AM |
"The sins of the father are to be laid upon the children."
*-- The Merchant of Venice*
Raheal Habtenkiel knows all too well about the sins of the father.
She was born to unmarried parents in Eritrea. Her dad left her with her
mom, who went to work in Saudi Arabia and left Raheal at an orphanage until
distant relatives took her in.
Her dad, Issak Habtenkiel, emigrated to Canada in 2009 with his wife and
four kids. He didn't name 13-year-old Raheal on his application for
permanent residence.
"I really wanted to declare her but if your children are born out of
wedlock it's a shame," the Eritrean man said through an interpreter. "I was
sending money to her to support her."
His wife, who was raised in an ultra-conservative Orthodox community, was
embarrassed by his illegitimate offspring, court documents show. She told
Issak to choose either her and their children or his daughter, Raheal.
"I had a tough choice to make," he said. He chose not to mention Raheal on
his application to come to Canada and has regretted it ever since.
"I was never comfortable -- I was always being stressed out," said Issak
who works full time at Dunn-Rite Food Products. His wife had a change of
heart about Raheal. They've spent $2,500 on legal fees and $400 on DNA
testing to prove she's his daughter, he said.
"She's managed to accept the situation and understands what I'd been
through."
Immigration officials have not. When Issak tried to sponsor Raheal to join
his family in Winnipeg in 2011 he was told he couldn't because he didn't
list her as his child when he applied to come to Canada in 2009.
Immigration regulation 117 (9) (d) -- the notorious "excluded family
member" rule -- imposes a lifetime ban on sponsorship of a family member if
they were not examined by an immigration officer when the sponsor
immigrated to Canada.
Now that regulation and its application are heading to the Federal Court of
Appeal. Its decision could slam the door shut to many newcomers, say
immigration lawyers across Canada watching the Habtenkials' case.
When Raheal applied to come to Canada on humanitarian and compassionate
grounds in January 2012, she submitted letters from her father and his
wife, copies of emails from her half-siblings in Winnipeg, from the priest
at her dad's church in Winnipeg, from her school in Khartoum and a letter
from her mother giving up guardianship to her father.
Her application explained why Issak didn't name her as his daughter and how
bringing her to Canada would be in her best interests as a child. Raheal
was interviewed by a Canadian visa officer who wanted to know why she never
sought out her father or lived with him. The officer questioned how Raheal
moving to Canada would be a reunification of father and daughter if they
had no emotional ties. The officer ruled humanitarian and compassionate
grounds didn't warrant special consideration. There were no "extenuating
circumstances" for Issak not to list her as his child, the visa officer
said. Raheal was rejected.
The Habtenkiels applied to the Federal Court for a judicial review. The
visa officer failed to consider the evidence submitted or deal with the
best interests of the child, their lawyer Bashir Khan said. Federal Court
Justice Elizabeth Heneghan dismissed the application, but said it raised a
serious question of general importance -- that there's no avenue of appeal
for someone in such cases.
Khan, who is taking the case to the Federal Court of Appeal, said it's a
"Catch-22" situation. If you don't declare a family member on your
application to come to Canada and then try to sponsor them citing
humanitarian and compassionate reasons and a visa officer rejects them,
it's case closed. The Immigration Appeal Division won't review a case on
the basis of humanitarian and compassionate considerations unless it
involves a family member. You can't apply for a judicial review of the visa
officer's decision until all appeals have been exhausted, but you can't
file for an appeal because the Immigration Appeal Division won't hear it.
"If an immigration officer is given the discretion for humanitarian and
compassionate reasons to overrule a decision, it's important that somebody
is overlooking that person's decision," said Vancouver lawyer Steven
Meurrens. He's blogged about the case he says could slam the door shut on
humanitarian and compassionate appeals.
"There should be somebody who can say if the decision of the officer is
reasonable or not."
carol.sanders_at_freepress.mb.ca
Republished from the Winnipeg Free Press print edition April 26, 2014 A10
Received on Mon Apr 28 2014 - 09:50:36 EDT