Federal Appeal

Immigration and Citizenship

Appeals to Federal Court of Appeal and Supreme Court of Canada

Powers of court

Appellant’s removal deferred pending redetermination of application for permanent residence

Appellant L was permanent resident of Canada, who held citizenship of his native Guyana. L did not make application for citizenship, despite having resided in Canada since 1966. L had 9-year-old daughter, whose mother was member of First Nations group giving child Indian status. L had custody of child, due to mother’s substance abuse issues. L had criminal record, with most recent offence being 2003 conviction for assault causing bodily harm. Accused was originally subject to deportation order as result of record, with order being stayed in 2005. Order was reactivated, when it was found that L had not complied with order. After daughter was born in 2007, L lived with mother and daughter. L established own residence in 2011, so that he could have custody as awarded by court. L made pre-removal risk assessment (PRRA) application in 2013, which was denied. L was to be removed in 2014. L filed applications to re-open appeal, for permanent resident status on humanitarian and compassionate (H&C) grounds and request to defer removal. L claimed that child would be removed from Aboriginal heritage if forced to live in Guyana with him. Deferral request was denied. L appealed from this decision. Appeal allowed. Short-term best interests of child did include consideration of Aboriginal heritage. Enforcement officer did not take into account short-term impact of L’s deportation on child. Child was vulnerable as child of Aboriginal heritage. Assumption that child would be able to return to Canada at some point was unreasonable. There was no one else available to take care of child on full-time basis in Canada. L was not willing to make child ward of state. There was no opportunity for child to maintain connection to heritage in Guyana. L’s deferral application was remitted to another enforcement officer for redetermination, in accordance with court’s reasons.

Lewis v. Canada (Public Safety and Emergency Preparedness) (2017), 2017 CarswellNat 2764, 2017 FCA 130, David Stratas J.A., Wyman W. Webb J.A., and Mary J.L. Gleason J.A. (F.C.A.); reversed (2015), 2015 CarswellNat 10508, 2015 CarswellNat 6206, 2015 FC 1309, 2015 CF 1309, Annis J. (F.C.).

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