The Federal Court has overturned the deportation of former child refugee Abdoul Abdi, who grew up in foster in care in Nova Scotia but never received his Canadian citizenship.
The Federal Court released its decision Friday, after Abdi sought a judicial review of the federal government’s decision by arguing his Charter rights had been violated and his treatment was not in keeping with Canada’s international law obligations.
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In a written decision dated July 13, Justice Ann Marie McDonald said a delegate of the public safety minister failed to consider the Charter of Rights and Freedoms and international law in arriving at her decision, despite being statutorily mandated to render a decision consistent with the charter.
“Most blatantly, the (delegate’s) decision discloses no indication that the (delegate) even considered the charter values,” said McDonald, who does not name the delegate in her decision.
“In fact, the charter is not mentioned anywhere in the (delegate’s) cover letter outlining the issues she considered or in the body of her decision. This is so despite Mr. Abdi’s extensive submissions on the charter.”
Abdi’s lawyer, Benjamin Perryman, says this is the second time the Federal Court has overturned his deportation. The first time the federal government’s decision was overturned was in October 2017.
“He’s won at the Federal Court two times now and I think that Mr. Abdi should not have to go to court a third time for the federal government to do the right thing,” he said.
Abdi, who is in his early twenties, was recently released from prison after serving a five-year sentence on multiple charges, including aggravated assault.
He arrived in Canada as a six-year-old child refugee with his sister and was placed in foster care shortly after, but officials never applied for his citizenship.
His case became a rallying point for advocates of immigration reform.
Justice for Children and Youth was granted intervenor status at the judicial review. Staff lawyer Jane Stewart said Monday the case was a chance for the court to weigh in and correct what had happened to Abdi.
“We know that children who are raised in the care of the state have persistently negative outcomes in terms of their exposure to trauma, lack of educational opportunities, poorer mental health and health outcomes and increased crossover into the criminal justice system,” she said.
“And certainly all of those describe Mr. Abdi’s circumstances. And combined with a lack of a meaningful opportunity to apply for Canadian citizenship, really his present jeopardy is the result of the combined failures of the Nova Scotia government and the federal government to protect those rights.”
McDonald noted the delegate is also required to weigh the statutory objectives of the Immigration and Refugee Protection Act with the values of the charter, and that her decision was unreasonable and not “justified, transparent and intelligible.”
It goes on to highlight the unique facts of Abdi’s case, including that his aunt had unsuccessfully attempted to apply for citizenship for him in 2005, but was stopped by the provincial Department of Community Services on the basis that as a ward of the state, only it could apply for citizenship.
“These factors may be relevant considerations with respect to a (section 15) charter value of non-discrimination in the (delegate’s) referral decision. But they were not considered,” the decision said.
McDonald set aside the decision to refer the matter to a deportation, and sent the case back for “redetermination” by a different delegate of the public safety minister.
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Public Safety Canada did not immediately return a request for comment Monday.
Perryman says it’s unclear what will happen to Abdi now,
“It goes back to Canada Border Services Agency,” he said. “The government has to make a decision if they’re going to try and deport Mr. Abdi a third time or they can also issue him a warning letter instead.”
That letter, Perryman says, would give conditions that Abdi would have to follow but would allow him to remain in Canada.
“What he said to me last night when I was speaking to him is he’s tired of living a life on this roller coaster and he’s ready to live life in peace,” Perryman said.
“I think it’s he’s happy to win but there’s a degree or uncertainty because we don’t know what’s going to come next.”
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Perryman says Abdi has been working in Toronto where he lives now and is focused on building a life, but feels he is in limbo.
READ MORE: N.S. premier seeks review as Abdoul Abdi faces deportation
Earlier this year, Nova Scotia Premier Stephen McNeil asked the province’s Community Services Department to complete a review of how they handle complex cases such as Abdi’s.
With files from The Canadian Press and Alicia Draus
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