Law forbids immigrants from sponsoring children, spouses left off initial application
When Nguyen Van Hai fled Vietnam, he cried for the baby boy he was forced to leave behind. Poverty and the chaos of civil war had separated him and his girlfriend, who had sole custody of young Chien.
In 1987, Mr. Hai escaped to a refugee camp in Hong Kong with his mother and three siblings. He married another woman before being accepted three years later on Sept. 5, 1990, to come to Canada, part of the massive influx of Vietnamese boat people who arrived in those tumultuous years.
On his application form, Mr. Hai made a crucial decision that would come back to haunt him. He did not declare his out-of-wedlock son, afraid it would jeopardize his family’s chance of being accepted as immigrants — and fearing to tell his wife the truth.
What he couldn’t have known is that this sin of omission would eliminate any chance of ever reuniting with Chien.
According to the 2002 Immigration and Refugee Protection Act, Canadian immigrants may not sponsor spouses or children if they failed to declare them on their initial applications. No exceptions.
Not even for those who got married or had children after they applied to come to Canada but before they arrived. The regulation applies retroactively, reaching back to non-disclosures from before 2002.
Moreover, Canadian immigration officials can deport immigrants who ask to bring in undisclosed children or spouses, on the grounds of misrepresentation.
Canada’s immigration bar has launched a legal challenge to what lawyers call this “Draconian regulation” — 117 (9)d in the act — that penalizes hundreds of children for the sins of the father.
Mr. Hai, now 39 and the owner of a nail salon in Pembroke, Ont., finds it deeply troubling that his son is forever barred from Canada.
“At the time, my wife didn’t know about my son in Vietnam. Once I told her, she said, ‘you must go and find him,’ ” he said. “I flew to Vietnam in 1997 and found Chien. He was still living in the same village, Nai Hien Dong. My dream is to get him here. My son is so frustrated and feels so abandoned.”
Chien’s mother became a nun and he is being raised by an uncle.
Catherine Sas, the Vancouver lawyer who has spearheaded the legal effort to strike down the law, has several clients with similar stories:
A Filipina dentist who failed to declare her daughter from a prior marriage when she first immigrated now despairs of reuniting with her. A wealthy Hong Kong businessman wants to sponsor the children he fathered with his mistress after she abandoned them.
“These people are not drains on the system,” Ms. Sas said. “Immigration Canada is failing to recognize the significance of family relationships, and penalizing people for eternity, not weighing any of the factors that used to be weighed.”
If a regular applicant to Canada is found to have misrepresented his circumstances, he is barred from coming to the country for two years, and then may reapply.
But landed immigrants who are guilty of misrepresentation are forever barred from sponsoring their offspring.
Max Berger, a Toronto-based immigration lawyer, believes the regulation casts the net too wide. “It was meant to stop those who abuse the system, but instead it has caught hundreds of innocent people.”
Immigration officials issued a removal order against one of Mr. Berger’sclients, Riaz Khan, after he tried to sponsor his wife and child. The 36-year-old chemical engineer was single when he applied to immigrate to Canada in 1997. He married and had a child in Pakistan while waiting for his application to be processed.
He reported his change in status after arriving in Calgary in October, 2001. CIC is trying to deport him for misrepresentation. “It was an honest error. I didn’t know I had to report my wife and child earlier,” said Mr. Khan, who is appealing the removal order. “I am settled here. I have nothing back there.”
Cec Rotenberg, Mr. Hai’s lawyer, says the old Immigration Act had a similar rule, but applicants could explain at an Immigration appeal division hearing why they failed to disclose family members.
“The regulation is contrary to international conventions on the rights of the child. What has a child done to disentitle him to be with his parent?”
Mr. Hai can at least take comfort in the fact that, so far, he has not been ordered deported. The entrepreneur, who now has three Canadian children, has been back to Vietnam three times to see Chien, and last week went for another visit.
He sends him money to pay for his schooling, but his son, now 18, is depressed, he says. “I had to tell my son ‘Canada won’t let me bring you here.’ He is very upset,” said Mr. Hai, who has already spent $10,000 trying to appeal the case.
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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