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Canada 'No reason' for forcing Nigerian man to leave wife, infant daughter in Canada: lawyer

14:55  05 december  2019
14:55  05 december  2019 Source:   cbc.ca

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A Nigerian man who crossed the border into Canada years ago was forced to leave the country Monday, separating him from his wife and baby in a case that both the family and legal experts say is unfair.

"I love her so much. I love her so much," Festus Odua said through tears, as he embraced his wife and infant daughter at the airport on Monday. "I wish this would never happen."

The 36-year-old then walked through security flanked by Canada Border Services Agency officials to board a plane back to Nigeria.

Odua crossed the U.S.-Canada border into the southern Manitoba town of Emerson in April 2017 — among the thousands of refugee claimants who have entered Canada in recent years in what are called "irregular" border crossings, meaning crossing anywhere other than an official border point.

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He married Rikki Odua, a Canadian citizen, in January 2019 and their daughter, Zara, was born in Canada three months ago.

An immigration lawyer says the forced departure seems harsh and unnecessary, especially since family reunification is usually such a high priority for the federal government.

"There's no reason to take a father away from a newborn child," said Vanessa Routley, who did not work on the couple's case.

Removal order issued

After leaving Nigeria in 2015, Festus originally landed in the U.S. Facing deportation there, he came to Canada, where his original 2017 refugee claim was denied, as was a later appeal of that decision.

The couple had banked on an application for a spousal sponsorship — which would have allowed Festus to stay, provided the couple could prove Rikki could support him if necessary. He has no criminal record.

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The family says during a meeting in July, their lawyer advised them to delay filing the spousal sponsorship application until after the birth of their child in August.

Rikki said the couple, who were living in Flin Flon, Man., was advised that Zara's birth certificate would strengthen and complete the application. 

a close up of a man and a woman looking at the camera: Festus Odua said goodbye to his family on Monday. © Provided by cbc.ca Festus Odua said goodbye to his family on Monday.

The Canadian Border Services Agency issued a removal order against Festus on Nov. 13, two days before he and Rikki received their daughter's birth certificate — a document they applied for in August, and which was the last piece of documentation they needed before filing their spousal sponsorship application.

'We did everything right'

Now, Festus is going to miss Zara's first Christmas, and many other family milestones before they are potentially reunited, "because we made a grave error in judgment," said Rikki.

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"We did everything right," she said through tears. "We followed our legal advice."

After their Nov. 13 meeting with CBSA officials, the couple rushed to the Vital Statistics office to try to get their daughter's birth certificate, which had been requested 12 weeks prior.

The document was ready two days later and they filed their spousal sponsorship application on November 20, but it was too late.

The Oduas's lawyer told CBC News in an email that Canada Border Services Agency has a policy that if a spousal sponsorship is in process, they will grant an automatic 60-day suspension on a removal order — but that's not applicable in cases where a person is deemed "removal ready."

"The last meeting that [CBSA] had for Festus deemed him removal ready, and it was before we were able to submit the final documentation," wrote Alan Hogg.

a group of people standing in a wedding dress: Festus and Rikki Odua tied the knot in January in Flin Flon, Man., where Rikki says they have a © Provided by cbc.ca Festus and Rikki Odua tied the knot in January in Flin Flon, Man., where Rikki says they have a

He applied to defer the removal order until the couple had received a response on whether Festus would be granted permanent residency. That was denied in a letter from border services sent Nov. 27.

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Application not submitted in 'timely manner': CBSA

In the letter from a CBSA enforcement officer to Hogg, officials said 11 months had passed since the couple's marriage before the spousal sponsorship was sent on Nov. 20.

"I do not find the explanation given for the delay in filing to be acceptable. Had the application been submitted in a timely manner, [Immigration, Refugees and Citizenship Canada] likely would have already initiated this application which would have strengthened the argument for deferral," Guy Le Gras, inland enforcement officer for CBSA in Winnipeg, wrote.

Le Gras said he didn't discount the "importance of the relationship between father and child," but he did not agree with the lawyer's argument that a separation would have "substantial or long-term effects" on the child's development.

Rikki Odua, he wrote, could choose to relocate with her husband to Nigeria, pending the outcome of the sponsorship application.

a child looking at the camera: Festus Odua says he doesn't know how he'll survive the separation from his family. © Provided by cbc.ca Festus Odua says he doesn't know how he'll survive the separation from his family.

But Festus argues Nigeria is not safe for him or his family.

"I wonder what he's checking. There's kidnapping. Boko Haram terrorists. Different terrorist groups. Robbery. Different crime. And yet they said my family can visit me if they wish to," Festus said.

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He added there is a travel advisory urging Canadians to avoid all travel to the Delta region, where he's from.

"I feel that Canada is a safe country and they are good people. That's why I came here. At least I can make a better family, make a better life," said Festus.

Rikki said it will be a struggle for her now, as Festus worked at Sysco to support them. Their lawyer is seeking a judicial review of the CBSA decision.

Delays and uncertainty

Immigration lawyer Routley said that though their spousal sponsorship application sounds strong, the family will likely face delays and uncertainty in having it processed.

"It's going to be a long road until he can come back to Canada. That's very sad. There are many people in this system who follow all of the rules and do all of the right things, and they still can't win," she said.

She argues an ombudsman role should be created to deal with decisions like this.

"It's not fair for families like that to have to go to federal court, when a reasonable person can make a reasonable decision and decide he should be allowed to stay until the [spousal] application is decided," she said.

Festus told CBC News at the airport that he wasn't even told which part of Nigeria he was being flown to, and he's uncertain how he'll survive the separation from his family.

"I'm praying that God will help me to survive this. Because this is all I got in my life. This family is all I have. I don't even have a home in Nigeria to stay," he said.

Meanwhile, Rikki will try to bathe Zara as quickly as Festus did to keep her from getting too upset, and wishes she could turn back time to get the sponsorship application filed sooner. 

"He would never have been ripped from me and my daughter. I don't even know when I'll feel normal again, when I can sleep again. Not until he's back with his permanent residency."

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Paramjit Basanti has been married to his wife, Charanjit, for over 20 years. In all that time, they've only been together about 18 months because multiple attempts to sponsor her for Canadian permanent residency have failed. His lawyer says it's a symptom of bigger problems.In all that time, they've only been together about 18 months because multiple attempts to sponsor her for Canadian permanent residency have failed.

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