Refugees claim Canadian policy threatens families
Law means refugees can lose permanent resident status for visiting home after years in Canada
On what should have been their first full day of school this month, Bahareh Esfand's children instead spent the day sitting in a federal courtroom watching their mother try to stay in Canada.
With them was her husband, a political refugee from Iran. Esfand and their eldest daughter fled the country as his dependents in 2006. She's not accused of any crime.
Esfand's mistake, it seems, was to visit her mother back in Iran.
The Coquitlam, B.C., woman is one of dozens of people who claim that after years of building lives in Canada, their future is threatened by a 2012 change to Canada's Immigration and Refugee Act aimed at catching bogus refugees.
"They can't take apart my family. We came as a family so we should be a family," Esfand says.
"We've built 100 per cent of our lives here."
'I didn't do anything wrong'
The Minister of Citizenship and Immigration is fighting in Federal Court to take away Esfand's right to stay in Canada under a process known as cessation.
The process allows the government to say a person's refugee status has ceased under certain circumstances, including having "voluntarily re-availed" themselves of the protection of the country they fled.
In Esfand's case, that meant taking her new, Canadian-born child to Iran to visit her ailing mother in 2007. She made a second visit in 2011.
Esfand felt safe returning because while her husband was forced to flee Iran, the authorities were not seeking her.
Canada has always had the ability to subject refugee claimants to the cessation process, but a change to the law in 2012 meant the determination automatically resulted in loss of permanent resident status.
According to federal court documents, at the same time the law changed, the Canada Border Services Agency identified cessation as a key priority, setting a target of 875 people each year. That figure compares to a total of 108 cessation applications between 2007 and 2011, inclusively.
Then-immigration minister Jason Kenney defended the changes in Parliament in May 2012.
He said the Immigration and Refugee Board would only seek an order to cease a person's refugee status and revoke permanent residence "if they have done something to demonstrate essentially that they defrauded our asylum system."
But critics say the legislation prevents refugees from getting on with their lives. In theory, the law would allow for removal of refugees who returned to Vietnam or Chile after coming to Canada 40 years ago, but who never applied for citizenship.
Esfand, who works for the Bank of Montreal, says she's done nothing wrong.
"I've never had even a speeding ticket. I didn't do anything wrong in this society," she says. "I don't think I deserve to be deported back."
'This is all we have'
Part of what bothers refugee advocates is that the change to the law is retroactive. Prior to 2012, a cessation finding would not have resulted in the loss of permanent residency.
The issue emerged in a Federal Court case launched by Jose de Jesus Bermudez, a Colombian refugee whose family was victimized in a 2001 paramilitary massacre. His father was murdered because he planned to testify as a witness.
Bermudez, 32, now lives in Surrey, B.C., where he's married and has two Canadian-born children. CBSA applied to cessate his refugee status in 2014 because of two trips he took home in 2008 and 2009.
He returned to marry his former fiancée so she could come to Canada. He took measures to hide his identity while he was there. But the relationship fell apart.
Federal Court Justice Richard Mosley noted that while CBSA knew of Bermudez's trips home prior to 2012, they chose not to target him until after the law put his residency in Canada in peril.
"This suggests that the department had been lying in the weeds waiting for legislative change to pursue permanent residents such as Mr. Bermudez," Mosley wrote.
"There may be cases in which that would be appropriate — where residence in Canada has been treated as a mere convenience while the individual concerned remained established elsewhere — but this does not appear to be one of them."
Bermudez's disabled mother and sister live in Canada. His Canadian-born wife, Vanessa Myers-Bermudez, works as an educational assistant while Bermudez works as a cement-finisher.
Myers-Bermudez says the threat of deportation and the ongoing appeals have taken a toll.
"This is all we have, this is all he has. We have nowhere else to go," she says.
"There has to be a standard to coming here, but when people are here and they're already established, why would you want to take them out, when they're not criminals or lawbreakers?"
'A waste of a life'
CBSA won't comment on cases before the courts.
Esfand learned she was being referred for a cessation application at a final interview for citizenship.
Her lawyer subsequently convinced the Immigration and Refugee Board not to cessate her because, as her husband's dependent, Esfand never actually asked for Canada's protection.
But the government appealed in Federal Court and has already announced its intention to appeal any negative decision.
Ironically, lawyers for both Esfand and Bermudez say that even if the government were successful in cessating their clients, they likely wouldn't be able to deport them on humanitarian and compassionate grounds.
Esfand's lawyer, Douglas Cannon, says his practice has been overwhelmed by cessation cases. He says the situation is particularly relevant as Canadians ponder issues of security and resources around refugee protection.
"It's a waste of money, it's a waste of time, it's a waste of taxpayer resources," he says.
"It doesn't make any sense. It's a waste of a life, really."