Stay Of Deportation: Humanitarian And Compassionate Grounds

By Patrick Rocca | March 25, 2015

Karen Kwan Anderson – Pace Law Firm: A family in British Columbia is facing a tough and uncertain future:

The Canada Border Services Agency has issued a removal order for a Mexican man with Stage 4 cancer that would force him to leave his Canadian wife and son and put his life-prolonging treatments on indefinite hold.

Fernando Nuñes, 32, said there are no facilities where he lives in Mexico capable of continuing the treatments he receives at Surrey Memorial Hospital.

“My doctors say that if I don’t get … the right treatment, my time for living is shorter. They say one year or less. If I go to Mexico I can’t see my son, because he came as a refugee when he came here. He can’t come back to Mexico.”

Nuñes said he came to Vancouver in January 2009 to visit family. His son Fernando, now 11, came with his mother as a refugee and is a Canadian citizen. Nuñes said he overstayed his visitor visa and did odd jobs in construction.

I had a similar case a while back. My colleague Andy Semotiuk and I worked with a client – I’ll call him John – whose elderly parents were subject to removal, but the mother was too ill to travel.

We asked for a deferral of the removal pending a decision on John’s sponsorship of his parents. The CBSA refused to defer, so we sought leave from the Federal Court.

We challenged the refusal on the basis that the CBSA officer ignored Citizenship and Immigration Canada’s (CIC) policy manual and case law about considering all circumstances of a humanitarian and compassionate nature. These include an inability to travel. We then filed an application for stay of the execution of deportation.

In the application, we included the medical evidence and other evidence of compelling H&C grounds that we had submitted to CBSA. The Department of Justice, which represents CBSA, consented to our stay application. The parents got to remain in Canada pending processing of the sponsorship.

Sadly, the mother died a few months later. She is buried in Canada. The father’s application continued but he had to leave Canada because the visa office needed proof that he departed Canada in order for the visa office to issue an immigrant visa. In addition, the father had to request and pay a filing fee for Authorization to Return to Canada.Yes, the road of immigration law is a long and winding one.

He did all that was requested, and at age 85 (a US war vet), he finally became a permanent resident of Canada.

Andy and I are extremely happy for this family, especially since they were able to remain together at the end of the mother’s life.

Karen Kwan
Anderson
 is an immigration lawyer with Pace Immigration, an immigration law firm in Toronto, Canada.