Family split in rare ruling
Sudanese man will be sent home while wife, kids to stay in Canada
In a rare decision, an adjudicator has rejected the refugee claim of a Sudanese man, finding it not credible, but granted asylum to his wife and their three children.
Normally, the negative decision against Nasreldin Ali Akad Himad would not have mattered since he would be included in the permanent residence application with the immediate family members who were recognized as protected persons.
However, by law, the 49-year-old Toronto man is considered “removable” by the Canada Border Services Agency (CBSA). He is facing deportation Saturday and a lengthy separation from his family before he can return to Canada.
“The government is utilizing valuable and limited resources to enforce removal of an individual who has a strong chance of returning to Canada as a permanent resident,” said the family’s immigration lawyer Ashley Fisch.
“This defies any sense of logic and accountability to taxpayers.”
Himad has already passed the criminal and medical screening, which means if he were to be deported to Sudan, it’s virtually certain he would ultimately be approved for permanent residence and return to Canada.
With exception of cases involving refugee parents with American-born children, who are U.S. citizens and ineligible, Fisch said she is only aware of one other case at the Immigration and Refugee Board that split the decision.
While a family often relies on the principal asylum-seeker’s risk and fear factors as the basis of a claim, sometimes each member also adds their individual unique circumstances that put their lives in danger to strengthen the collective claim.
Although immigration officials are in charge of processing permanent residence applications and place a strong emphasis on family reunification, border agents are the ones responsible for removals.
Himad and his wife married in Saudi Arabia, where they were both temporary residents, and sought asylum in Canada in January based on the husband’s claim that he was detained and beaten by the Sudanese National Security because of trumped up accusations of inciting unrest against the regime.
His wife, Baraka Suleman Khalefa, an Eritrean national, claimed that if she was rejected and returned to Eritrea, she would face a possibility of persecution. Their son, Ali,18, said he feared the risk of forced conscription if returned to his father’s home country in Sudan, while the daughters, Rafif, 9, and Lamis, 4, claimed they would for certain be forced to undergo female genital mutilation if they stepped on Sudanese soil.
Refugee board adjudicator Vania Campana accepted everyone’s claim but Himad’s.
“With respect to the principal claimant . . . I do not find you to be a credible witness concerning material aspects of your claim,” Campana wrote in her decision delivered earlier this year, adding that Himad at times provided inconsistent information or was unable to recall details of the events in his claim.
“You sir are not a person of interest to the Sudanese government because of your political opinion and I therefore find that you do not face a serious risk of persecution in Sudan on this basis.”
The border agency said Himad is under a removal order as a failed refugee claimant. “The Immigration and Refugee Protection Act states that removal orders must be enforced as soon as possible. CBSA is committed to doing so,” said the agency, which denied a request by Himad’s lawyer to defer deportation. Himad, who speaks broken English, said he did not have access to interpreters when he and his family crossed the United States land border to file the asylum claim, and hence did not fully comprehend the border officer’s questions resulting in the inconsistent information at his asylum hearings.
“I have mixed feelings about the refugee decision. I’m happy my family is in a safe place now, but I’m disappointed that we would be torn apart,” said Himad, who has been working at an auto parts factory in Toronto to support his family.
In rejecting the plea to stay the deportation, the border agency said the children will have the love and support of their mother during the period of adjustment.