Three Separate Issues

Background

Oscar, his spouse Carolina, and their three children came to Canada in 2001. They have been here ever since.

Oscar was found to be inadmissible under Section 34(1)(f) of the Immigration and Refugee Protection Act (IRPA). This section states that a person is inadmissible to Canada if s/he has ever been a member of an organization that has engaged in terrorism.

Oscar was a member of the FMLN which is currently the democratically elected government of El Salvador. Much like Nelson Mandella’s ANC in South Africa, the FMLN was an armed opposition prior to the Peace Accord in El Salvador. Although Oscar himself has never participated in any violent activities of any sort, the Canadian government says that Oscar was a member of a group that once engaged in terrorism.

As a result, the Canadian government denied Oscar his right to a refugee hearing. This led to the three separate legal applications that are described below.

#1 Humanitarian and Compassionate Grounds (S. 25 IRPA)

The IRPA allows a person who is inadmissible to request permission to remain permanently in Canada on humanitarian and compassionate (“H and C”) grounds. In Oscar’s case, this is connected to fact that all the other members of Oscar’s family are Canadian citizens and to separate the family at this stage would cause undue hardship.

Although Oscar was denied the right to a refugee hearing, his spouse and children were allowed to proceed. Their claims were all accepted. They proceeded to become permanent residents. In January, 2014 they were all sworn in as Canadian citizens.

The Canadian government has now rejected Oscar’s H and C application. They have said that Oscar must return immediately to el Salvador and the fact that his family will be broken apart is not sufficient hardship to qualify under the section.

Oscar has now started an application to overturn this decision in the Federal Court of Canada. This is a costly application and although the initial stage of the case is being handled pro bono (free of charge) by Waldman and Associates there are considerable costs related to disbursements like copying and binding that must be paid by Oscar. Eventually, there will have to be a fundraising effort to support the legal side of the campaign.

#2 Pre-Removal Risk Assessment (S. 113 IRPA)

When a person like Oscar is denied a refugee hearing, the government is obliged to complete a pre-removal risk assessment (PRRA) before removing them from Canada. This is a two-staged process: first, immigration officers assess whether Oscar will be at risk in El Salvador as well as whether he would be a danger if allowed to remain in Canada. Second, the Minister’s delegate reviews these assessments so that the Minister can make a final decision on whether to allow the person to remain in Canada or not.

Oscar submitted his application for a PRRA in 2008. In 2009 an immigration officer made an assessment that he would be at risk if removed to El Salvador. Oscar was not advised of this positive risk assessment until 2012.

In 2012, another officer made an assessment that Oscar would not be a danger were he allowed to remain in Canada. This officer told Oscar that based on the two positive assessments he should be celebrating a victory.

It came as quite a surprise to Oscar when he was called in to immigration in February, 2014 (a week after his spouse and children became Canadian citizens) and informed that the Minister had overturned these positive assessments and rejected his case. He was told that he would have to leave Canada and that he should immediately procure a Salvadoran passport and airplane ticket back to El Salvador.

Oscar has now started an application to overturn this decision in Federal Court.

#3 Ministerial Relief (S. 34 IRPA)

Although Oscar has had both his “H and C” and his PRRA denied, there is still a glimmer of hope that the Minister could intervene under S. 34 IRPA which allows for ministerial relief from inadmissibility. This is a farily general provision that would allow the Minister to grant Oscar permission to remain permanently in Canada notwithstanding his technical inadmissibility.

The Vigil Campaign

The Vigil Campaign has come together to try to convince the Minister that Oscar should be granted permanent residence in Canada. The Minister has a wide range of options in terms of granting relief in a case like this. The important thing is that Oscar is allowed to remain in Canada with his family.

The campaign will be mobilizing public support for Oscar’s case, including a petition from concerned Canadians, fundraising to support the legal effort, and endorsements from high profile Canadians.