The Federal Court of Canada has allowed a woman who became a permanent resident by lying about her identity to remain in Canada, saying her severely disabled son would be unable to receive the medical care he needs if she were deported to the Philippines.
The decision, posted this week on the Federal Court of Canada’s website, has raised questions about the extent to which humanitarian and compassionate grounds should trump fraudulent misrepresentation in cases where deportation might result in undeserved or disproportionate hardship.
The case began in January 1999, when Maria Canlas and her two daughters arrived in Vancouver from the Philippines. Ms. Canlas was able to obtain permanent resident status for herself and her daughters by using fake birth certificates and claiming she was married to a man named Alberto Pangilinan, which was untrue.
In 2002, Ms. Canlas gave birth to her third child, a son, who suffers from physiological and mental illnesses that need constant care and the help of health-care providers. The boy’s father does not live with the family but makes monthly support payments and sees his son about twice a month.
It wasn’t until September 2004 that Canadian immigration authorities discovered Ms. Canlas had lied about her identity and marital status, when the man she claimed was her husband made his own visa application and declared that his wife was another woman. Ms. Canlas and her daughters were then ordered deported.
However, Ms. Canlas, now a Toronto resident, applied to the Federal Court for a judicial review of the decision on humanitarian and compassionate grounds because of the medical condition of her Canadian-born son.
He requires four medications, periodic MRI scans, physiotherapy, speech therapy and special education, among other things.
Ms. Canlas argued that the Immigration and Refugee Board made an error in determining that the boy’s father could care for the child if she and her daughters were deported.
In his decision, Justice Maurice Lagace agreed, saying there is little evidence to suggest the boy’s father would be both willing and able to care for his son, since the father was not called as a witness.
He also criticized the Immigration and Refugee Board for portraying Ms. Canlas as a “conniving criminal who has deliberately continued her misrepresentations in order to circumvent the requirements of Canadian immigration authorities.”
He said further that the board was not sensitive to the benefits to the child if his mother remained in Canada.
“The court is convinced that a separation of the child from his mother and sisters at this sensitive time of his life, or his departure with them to be treated and taken care (of) in the Philippines, would be devastating in view of his mental and physical health situation and the medical and moral support he benefited from since the very early days of his life in Canada,” Judge Lagace wrote.
He dismissed the Immigration and Refugee Board decision and referred Ms. Canlas’s case to another immigration officer for rehearing.
The Immigration Appeal Division has since accepted Ms. Canlas’s plea for humanitarian consideration and her permanent resident status has been reinstated.
Immigration lawyer Max Berger called the case “a clash of two extremes.”
“On the one hand, the mother’s misrepresentations are truly reprehensible. On the other hand, the mother’s humanitarian and compassionate situation is truly heartbreaking,” Mr. Berger said.
“The government’s position is that to preserve the integrity of the immigration system, you have to deport the mother, and if the child goes with her, so be it. I think the way the court looked at it is that to preserve the integrity of the immigration system sometimes calls for compassion.”
He noted that even if Ms. Canlas stays here, the government can lay charges against her under the Immigration Act.
“The bottom line is that it’s not the boy’s fault that the mother made misrepresentations,” he said.
Max Berger is a native of Winnipeg, Manitoba and was educated at the University of Manitoba and York University. Mr. Berger is a graduate of Osgoode Hall Law School in Toronto, Canada. He has represented immigration clients from all corners of the world and in every area of immigration law.
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