Case a Catch-22: lawyer Family to appeal enforcement of immigration regulation
By: Carol Sanders | Winnipeg Free Press | 04/26/2014
"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.
Issak Habtenkiel sponsored his daughter to come to Canada but the case was denied based on a notorious immigration rule. His family's lawyer will appeal.
"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."