Oumou Diakité and Colin McGregor
An imposing building in Old Montreal, security guards at the entrance, wine red carpeting in the rooms festooned with national symbols. This is where, on the morning of Tuesday September 9th, the last act was played out in a deportation drama. Jonas Kiese Umba, husband, father of a baby daughter, was scheduled to be deported to Kinshasa, Democratic Republic of Congo, the next day, September 10th. He fled the DRC six years ago.
Before the Federal Court, he is attempting a final legal option to stay in a country he calls his own. His wife Fannie and baby Kimia are on hand, seated at his left.
On raised platform the judge, the Honorable Sébastien Grammond – white hair, rectangular glasses, serious in demeanour – faces, on one side, the representative of the Canadian immigration authorities; and on the other side, Stewart Istvanffy, a seasoned immigration lawyer.
At the other end of the courtroom sit 15 people, mostly supporters of the family. Kimia’s gurgling and crying are sometimes audible, giving a human face to the family whose unity hangs on laws and precedents.
When the judge enters, everyone gets up. When he sits down, everyone else does too. Mr. Istvanffy leads off. He raises the Canadian Charter of Rights and Freedoms; the case of Baker vs Canada (1999) which obliges courts to consider children’s rights in immigration cases; and several international laws and precedents.
“We’re favoring deportation over real consultation,” the lawyer argues. “There is no important reason to separate this family.”
He pleads that the government has mistaken a peaceful political party Jonas is involved with and a terrorist organization. The Congolese senate leader attests to the fact that the group, the BDM, is a respected political party with members in their legislature. The government has made a mistake. Letters are submitted as evidence.
Refugee Board
The lawyer also pleads that Jonas was never given a hearing in front of the Refugee Board, an essential procedural point. His client’s right to express himself was not respected.
Deportation, “unpredictable and disproportionate,” violates key articles of the charters concerning family life and the rights of children. There is a married couple who have respected the law, including a father and a daughter who will suffer “irreparable damage” if her father is sent away. After 45 minutes, Mr. Istvanffy sits down.
Now the government’s turn. Immigration, Refugees and Citizenship Canada lawyer Lynne Lazarof calmly looks the judge in the eye pleads that it is just too late.
The right time to challenge the administrative expulsion order passed by months ago. The challenge should have bee treated administratively before getting to the Federal Court level.
In terms of breaking up a family, that’s not enough to overturn a deportation order, she argues. Most of the expulsion orders she deals with involve parents. “If the wife wants to follow her husband to Kinshasa, that’s for her to decide.” Law is a well-oiled machine, indifferent to the cries of children.
Mr. Istvanffy gets a chance to rebut. We can’t use delays in the system to trample the fundamental rights of an individual, he says. He talks of a “legal lynching” in using Jonas’ links to a political party to justify his expulsion. He hammers home the idea that decisions should “rely on the facts.”
He evokes the dangers of the DRC, even though no one is demonstrating against former president Laurent Kabila anymore. He asks the court to respect Canada’s international obligations to protect child welfare.
Jonas’ lawyer asks for a six month stay to regularize the humanitarian situation, and a six week temporary stay order so that the government can examine a blameless life with no criminal record and a lot of community support.
Hearing’s End
The hearing is over; the room empties. Fannie wipes away a tear. Jonas takes her hand.
In the corridor, there is murmuring. They talk of pleas to Members of Parliament falling on deaf ears, of nervous politicians, of a “wave of expulsions” from Quebec that no one can document but that many have heard about. The decision will have to be rendered later that day, given the fact that Jonas is to be deported the next day.
The case is a teaching moment on our immigration system. “Scandalous” delays, risk evaluations that take forever, and a system so compartmentalized that families get lost in the shuffle.
The defense raised the inadmissibility of the reason given for Jonas’ deportation; the government raised administrative law.
In this type of case, the Federal Court rarely speaks in flamboyant phrases. Often, it refers everyone to their duties: to the administration, the fairness of procedures; to the applicants, the observance of the steps; to the legislature, the adjustment of laws if they produce injustices.
But Jonas Kiese Umba’s case reminds us that, behind the acronyms and deadlines, there are faces. And that Canada, a country of charters and conventions, is judged first and foremost by what it does to the smallest among us — sometimes, to a three-month-old baby who will understand nothing about the courts but everything about the absence of a father.
Finally…
The axe falls that afternoon. In a written decision, the judge recalls that he has already given Jonas a three month deportation stay this past May, a temporary reprieve allowing him to participate in the birth of his child. But the judge sees no reason to prolong that stay. He writes:
“As sympathetic as M. Kiese’s situation may appear to be, his request flies in the face of the fact that the consequences of a family separation are not in and of themselves obstacles to expulsion.”
The family is to be broken up the next morning. The journey to Kinshasa begins at 8 a.m. Wednesday morning.
Photo on top: Immigration lawyer Stewart Istvanffy consults outside of the court building with Maître Kabeya Lumbala, Congolese lawtyer (Photo: Oumou Diakité)
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