The Federal Court recently ruled that the statements of a former immigration minister about a purported plan to regularize undocumented workers in Canada will not prevent the execution of lawful removal orders.
Jefferson and Marcia Vieira entered Canada as visitors in 1998 and remained here after their status expired. In 2003, this Brazilian couple applied from within Canada for permanent residence on humanitarian and compassionate (H&C) grounds. A refusal of the application arrived in February 2005 followed by a pair of exclusion orders in June 2005. Unbeknownst to the Vieiras, their actual removal would not be attempted until two years later. Rather than immediately filing another H&C application, the Vieiras “registered” with Worker Canada, an entity which, according to court records, was allegedly “relying on potential immigration policy changes to regularize their clients.”
Once the Vieiras learned that they were in the “pre-removal” stage they feared that the end for them in Canada might be near. So, in March 2007, they submitted a second H&C application almost two years after their first one was denied. Sure enough, on May 17 they were notified that that they would be removed from Canada on June 14, 2007 notwithstanding the fact that they had hired Worker Canada.
They asked their expulsions officer to defer their removal so that the H&C application which they had just submitted two months earlier could be decided. When the officer refused, their new counsel applied to the Federal Court to stop the removals.
The Vieiras took the position that they would have filed an H&C earlier had they not received “inadequate” legal advice from Worker Canada’s counsel.
Mr. Justice Shore denied their request for a stay of execution and ruled that an applicant must be held to their choice of adviser and that the failure to provide notice and an opportunity to respond to counsel whose professionalism is being impugned is sufficient to dismiss any allegations of incompetence or malfeasance.
The judge also held that the Vieiras knew since the day they overstayed and at the latest, since June 2005, when they received the exclusion orders that they were clearly at risk of removal from Canada. Nevertheless, they waited until March 2007 when removal was essentially imminent to submit a second H&C application. He found that “they instead chose to hire a company that was unsuccessfully attempting to have the status of their various clients regularized based upon some potential immigration policy changes, that were never put into place.”
The court ruled that “there are, every year, statements made about possible changes to immigration plans and policies. Some of those are occasionally adopted in some form by the government while many others are not … Neither the former government nor the current one enacted any legislation, nor did it put into effect any rules or regulations in regard to such purported statements.”
This is probably obvious to all… except to those like the Vieiras, who were simply too desperate to see straight.
Guidy Mamann is the senior lawyer at Mamann & Associates and is certified by the Law Society as an immigration specialist. Direct confidential questions to metro@migrationlaw.com
