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Canada: Humanitarian Cases Risky

28 February 2006 at 05:02 | 516 views

By Guidy Mamann

There are many foreigners in Canada who may not qualify for immigration to Canada but who are convinced that they can successfully become integrated and prosper in our society.

Many believe that they have little or nothing to lose by simply staying in Canada and pursuing their dream of living here, albeit without “papers.” They convince themselves that if they can simply “make it” here, surely, immigration authorities will reward them with permanent residence status. While this is sometimes true, it is not always the case.

Take the case of Nam Ki Jeon, and family, as an example. He came to Canada in December, 2000 from South Korea with his wife, Chae, and son, Jin. They settled in the small community of Dorchester, Ont. and became active in their community and local church. Eventually, Mr.

Jeon and his wife purchased a small dry cleaning business where they worked six days a week. Their son adjusted well in school and to his new life in Canada.

The Jeons made an unsuccessful refugee claim based on their fear of certain criminals back home. In May 2002, they also made an application based on humanitarian and compassionate (H&C) grounds citing their establishment here, their continued fear of returning to Korea, and their concern that their son’s education would be disrupted if they were sent back home.

To support their application, they submitted tax forms, bills, bank statements, letters from their customers, members of the community, and their church minister. They even submitted newspaper clippings about them and their business ... all to no avail.

In November, 2004, their H&C application was refused because the immigration officer wasn’t satisfied that requiring them to return to Korea to apply in the required way would lead to “unusual, undeserved or disproportionate hardship.”

A judicial review of that decision was heard by Mr. Justice O’Keefe of the Federal Court. On Jan. 27, he denied their appeal on the basis that the officer’s conclusion was not unreasonable in that it is not “unusual” to lose assets that one acquires while in Canada without status. He also reasoned that the result is not “undeserved” since “if one assumes a certain risk,” the hardship that follows is simply “a function of the risk assumed.”
In other words, “You took a chance, you lost, too bad!”

The Jeon’s H&C application was decided less than four years after their arrival. Had they waited a few more years before approaching immigration authorities, the outcome might have been different. Some foreigners make refugee claims here just so that they will get a work permit and some basic health coverage while their claim winds its way through the immigration bureaucracy. Such claims will likely do little other than to notify immigration authorities that they are here illegally which, in turn, will only serve to facilitate their own eventual removal from Canada.

The Jeons succeeded in making a good life for themselves in Canada. Unfortunately, they failed to prove that this was enough to earn them the right to remain here.

Guidy Mamann is the senior lawyer at Mamann & Associates and is certified by the Law Society as an immigration specialist. Reach him at 416-862-0000. Direct confidential questions to metro@migrationlaw.com

Credit: Metro News

Photo: Prime Minister Stephen Harper of Canada

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