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STAY OF DEPORTATION
Newspapers recently carried the story of Wendy Maxwell who had been in Canada for many years, lived as a community activist, but was eventually deported to Costa Rica in mid-March 2005. The Immigration Consultant who assisted her was quoted as stating that an Immigration officer who are carriage of Ms. Maxwell's file was going to make a decision on the long standing humanitarian and compassionate application within a month. Even with this information, the Enforcement unit of Canada immigration detained her and bound her out of Canada for Costa Rica. It was stated that if her application were successful, she would be brought back. If this was so, why couldn't Canada Immigration wait just one month more before sending her away, since the decision was going to be handed down anyway in a month?
The answer to this question is simple: Ms. Maxwell never sought a stay of deportation in Federal Court where she would have enhanced her chances for staying in Canada until the humanitarian and compassionate application was considered. I do not know why Ms. Maxwell did not engage a lawyer and not a consultant since consultants are not qualified to represent clients in Federal Court, but there she was dealing with an Immigration Consultant. I am not casting any aspersions on the Consultant, he may be the best in the world, but the truth of the matter is, a consultant is not allowed to step foot in Federal Court on a stay or any other application. Some Consultants do not disclose their limitations and will not advise their clients of the legal remedies available to them if it meant those clients would abandon them and seek the services of a lawyer.
It may be that Ms. Maxwell did not have enough money. But she had a lot of community support and goodwill. All those people who were demonstrating for her and who manned the phones surely could have come up with a few thousand dollars it costs to properly prosecute a stay application. It is not that Ms. Maxwell did not know about stay applications. I had talked to her about it a few years back before she went underground. Many lawyers I am sure also talked to her about it.
It may be that she wanted to save some money to be used at home after removal. it may be that she was advised that because of the strong community support, the immigration will capitulate and not deport her. Sometimes it works.
There is word going around many communities that just because a person is married to a citizen or a permanent resident, he or she cannot be removed because of the new policy guidelines. That is not true. Each case has to be decided on its facts and if a person receives a removal letter, despite the marriage, one has to fight it in Federal Court. Law is not self-executing, it has to be invoked.
To win in Federal Court, a person has to satisfy what is called the tripartite test: (1) Is there a serious issue to be tried/examined, (2) will the person suffer irreparable damage/harm if removed, and, (3) does the balance of convenience favour the person or the government. These criteria are conjunctive, meaning all three parts have to be satisfied.
The test is highly technical and only a small specialised immigration bar succeed in stopping removals. You cannot go to just any lawyer, just as you do not got o just any doctor for specialised treatment. Certainly you should not go to an Immigration Consultant. Do not rely on the goodwill of the government or community activists or the media alone. Invoke the law in Federal Court while arousing the media, community activists and others. It is better to be deported not with a whimper but with a bang. You will sleep well knowing you did everything legally possible to stay in this great country.
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Criminal Lawyers Association The Law Society Of Upper Canada
Last Modified: August 15, 2007
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