MISTAKES ARE COSTLY - By Rezaur Rahman (Barrister & Solicitor)

She walked into my office with her cousin and her six months old baby. Her face was covered with a veil. All her pain was visible in her eyes. Her cousin, a very kind and caring man translated her statement to me from Afghan to English.

Her father was brutally killed by the members of a rival tribe when she was only 12 years old. She and her mother and her six year old brother fled to Pakistan to stay with one of her maternal uncles. Her uncle was kind to them but he was extremely poor and it was difficult for him to even take care of his own family but he never hesitated to share whatever he could.

She faced another set back when she lost her mother at the age of 16. She became an orphan and had no one with whom she could share her pain and aspirations. She grew up in poverty and the chance to go to school was nonexistent. Her days were spent doing household chores when one day the opportunity to come to Canada presented itself. Her older brother had come to Canada earlier as a sponsored refugee and now he was sponsoring his sister to come to Canada.

According to Afghan customs her relatives arranged her marriage and she shortly married a Afghan refugee living in Pakistan a few days before leaving for Canada.

When she arrived in Canada the Immigration officer gave her forms to fill out and sign which she then did. After arriving in Canada she got her first good news, she was pregnant and six months later she sponsored her husband to come to Canada. She believed that her days of misery and pain were now over and she was dreaming of the day her husband would be with her in Canada and she joyfully waited for her baby’s birth.

Unfortunately her sponsorship was rejected by the Citizenship and Immigration Canada. They informed her that she would never be able to sponsor her husband because she broke the law by not declaring to the Citizenship and Immigration Canada that she had a dependant.

The law says that anyone who applies for permanent residency and has dependants (spouse, children) must mention their name in the application for Permanent Residency and they must be medically examined.

For example, if applicant X wants to come to Canada as a permanent resident and she has a husband and a child (who qualifies as a dependant) then X must include their names in the application for permanent residence. Even if X’s husband or child does not want to come to Canada with X, their names must be at least mentioned in the application and they must be medically examined. If this procedure is not followed then X will never be allowed to sponsor them.

In the present case she was not married when she filed her application for permanent residency but she got married before she had become a permanent resident. Therefore she should have informed the Canadian High Commission in Islamabad Pakistan about her marriage before she had arrived in Canada and become a permanent resident. She told me that one of her relatives did send a letter to the Canadian High Commission informing them about the marriage but she did not know what happened afterwards.

Her cousin helped her to appoint a lawyer and file an appeal at the Immigration Appeal Division. At the hearing she failed to prove that the Canadian High Commission was informed about the marriage. The government argued that when she arrived at a Canadian airport she signed a form attesting the fact that she did not have any dependant and she was not married. She said that did not know English and she did not understand the forms at all. She lost her appeal.

It was a difficult case for me. I knew very well what the law says and I also knew that the Federal Court, in a similar case, ruled that no relief can be granted. It is not the fault of the Federal Court. In actuality the law is harsh and inhumane not taking into account the complexities of life. The Federal Court had no choice but to say that the provision of the law is valid even though it is unjust.

Her eyes filled with tears as she looked at me hopefully and said, “Do something for me brother as you would have done for your sister”. I felt strong empathy for her as I thought what I would have done if my sister was in such a helpless situation. I told her about the law and informed her regretfully that there was no chance of wining the case at the Federal Court. She broke into uncontrollable sobs. Her cousin asked me “So there is nothing that can be done?”

I told them that there is a special section in the Immigration and Refugee Protection Act that allows the Citizenship and Immigration Canada to grant a remedy under humanitarian and compassionate ground. However I noted that the Immigration Officer had already declared that there was no humanitarian and compassionate ground that would have allowed him to approve the sponsorship.

I told them that I would take up the case and fight for her rights. I told her that if she wanted she could go to Pakistan to stay a few months with her husband to relieve her mental agony. I then started to prepare my legal strategy in trying to win her case.

Six months later she came to my office with her cousin, who was interpreting for her, and informed me that she was better but still very worried about the future. She then said she was expecting her second child and I understood how difficult it would be for her to take care of two children in Canada without her husband.

I sent the proper application to the Case Processing Centre with a submission to consider humanitarian and compassionate grounds the Case Processing Center then sent the application to the Canadian High Commission in Islamabad.

A few weeks ago the Canadian High Commission had sent a letter asking for a few more documents; this is a good sign. It seems that the submission that we made is working and we are all hoping for the best. I believe that her application will be granted this time on the basis of the new arguments and documents that we filed.

Therefore readers, when trying to become a permanent resident of Canada be well informed of what is required since the law does not look kindly upon a mistake, no matter how innocent that is. The price of any mistake is very high and can be unbearable.

Copyright © 2007 Rezaur Rahman (Barrister & Solicitor). All Rights Reserved.