THUNDER BAY — A migrant to Thunder Bay has won a temporary legal victory in his quest to gain permanent resident status and remain in the community.
Federal Court Justice Sébastien Grammond on Friday granted a stay on a removal order filed against Abu Hena Mostofa Kamal by the Canadian Border Services Agency (CBSA), in a decision that took into consideration chronic delays within Canada’s immigration system.
Kamal came to the city four years ago from Bangladesh at the age of 19 to study at Lakehead University, but ran into problems financing his education during the pandemic, first switching to study at Confederation College then taking a break from his studies.
That led the CBSA to seek to deport him after his study permit expired in 2021, ordering him to present to Toronto Pearson International Airport on Sunday.
Kamal has argued in court that should wait until an application he filed for permanent residency is considered, which still hasn’t been processed by Canada’s Department of Immigration, Refugees and Citizenship (IRCC) despite being filed a year and a half ago.
In legal filings, Kamal has stated he would face greater discrimination over his visual disability if he were to return to Bangladesh, and that he is concerned he could be targeted for violence due to a family land dispute.
In his decision, Grammond found Kamal had raised serious issues over the enforceability of the CBSA order and the agency’s refusal of his deferral request.
Kamal filed an application around 18 months ago through a special program know as the temporary resident to permanent resident — or TR to PR — pathway, but it has not yet been processed.
The government had previously stated the TR to PR program has an average seven-month processing time, said Jennifer Dagsvik, director of the Newcome Legal Clinic at Lakehead University, who is representing Kamal in the case.
She said Friday’s decision provided a crucial last-minute reprieve.
“This decision is important because it allows Abu to stay in Canada to see through the processing of his permanent residence application, which he filed 18 months ago and has been waiting a long time for, and which he’s been doing everything that he can to move forward,” she said. “So now the ball’s in [IRCC’s] court. It’s up to them to make a good decision on his application, and that’s what we’re waiting for.”
It took nearly a year for Kamal to receive even a confirmation that his TR to PR application had been submitted, but it finally appears to be “on the brink of being decided,” Dagsvik said, after he received a request on Dec. 21 for more information.
“That tells us it’s in process and we can expect a decision at some point in the near future,” she said. “It’s not languishing, it’s not at the bottom of someone’s pile. It seems to be near the top of the pile now.”
Grammond spoke to the IRCC delays in his decision, saying they must be considered along with the government’s argument that CBSA orders must be enforced promptly.
“In this case, there is every indication that Mr. Kamal’s conduct has been irreproachable and that he has made every conceivable effort to regularize his status in Canada,” Grammond wrote.
“The public interest pertains not only to the prompt removal of persons without status, but also to the prompt and accurate treatment of applications … There are serious issues as to whether Mr. Kamal’s applications have been handled in that way.”
Dagsvik said Kamal’s case speaks to systemic issues faced by many who interact with Canada’s immigration system.
“Abu is an example of a worst-case scenario that leads to a situation where somebody’s on the verge of removal,” she said. “That doesn’t happen in every case, but there are certainly many people who are going through life-altering difficult situations with immigration because of the backlogs and the difficulties with processing.”
The stay will remain in effect until IRCC has processed his TR to PR application, or until the federal court renders a decision in the challenge he filed over the CBSA’s refusal of his request to defer his deportation.
Grammond found because the TR to PR program requires applicants to be in Canada, Kamal would suffer irreparable harm if deported, losing out on an opportunity for residency the government had offered through the TR to PR pathway to foreigners who performed essential frontline work during the pandemic.
Kamal’s more than one year of full-time equivalent work at Tim Horton’s made him eligible, according to his application.
“What is at stake is a program designed to recognize the significant contribution made by foreign nationals who provided essential services during the COVID-19 pandemic,” Grammond wrote. “As my colleague Justice Shirzad Ahmed wrote in Mohammed v Canada… Canadian society owes an important moral debt to them. It follows that there is an important public interest in the prompt and appropriate processing of their applications.”
Kamal’s case has generated significant public interest, with an online petition gathering nearly 3,000 signatures and prominent community members submitting letters of support, citing his remarkable volunteer involvement.
In a Facebook post that has received hundreds of likes, Kamal thanked members of the public for the support, Dagsvik, and MP Patty Hajdu and MPP Lise Vaugeois, who he said had helped advocate for him.
“It’s not over yet but it just gives us more time to figure things out,” he said.
“I’m grateful to a big team and best team of advocates of Thunder Bay who have been on my side and I would not been able to make it this far without their support.”
The hearing on Friday, held virtually by the Toronto-based court, was attended by over a dozen observers, including members of the media.
The hearing was broken off after about 10 minutes and was resumed without public participation, after at least one participant shared video including graphic sexual content and others left audio on blaring music or conversation, despite repeated requests from court staff.
It was not immediately clear who was responsible for the disruption.
Dagsvik said Kamal will continue to pursue litigation in federal court over the CBSA’s refusal to defer its deportation order. It’s unclear how long that process could take.
If his PR application is approved in the meantime, that litigation will not be necessary, she said.
“He still has some waiting to do and some processes to go through, but I think he’s in a much better position now,” she said.
