A British Columbia man who was deported at 59 despite living in Canada since he was seven months old has won a shot at returning home.
A federal court has granted Len Van Heest a judicial review of his permanent and temporary residency applications.
"Life handed Len Van Heest a tough hand," Justice Yvan Roy said in his Feb. 7 ruling, which reviewed a senior immigration officer's decision to deny the applications.
"One would expect a more careful and nuanced examination of the extremely peculiar circumstances of this case."
Van Heest's application will be given to a different officer for review.
Van Heest was deported to the Netherlands in 2017, and court documents say he has been living in a shelter where he can't communicate with anyone because he doesn't speak the language.
The documents say he was diagnosed with bipolar disorder at 16 and committed more than 40 offences in Canada, including an assault with a weapon, uttering threats and mischief.
He was granted many stays in the years since the immigration department issued a removal order in 2008, but was ultimately deported.
In spite of his being outside the country, an application for permanent residence on humanitarian and compassionate grounds filed in June 2016 was never withdrawn. On April 15, 2017, Van Heest also requested a temporary resident permit to allow him to return to Canada on a temporary basis.
Both applications were denied on July 24, 2018.
The immigration officer said in the July decision that he or she was not convinced that the problems related to Van Heest's separation from his loved ones, including sadness, were sufficient to warrant an exemption from his inadmissibility for serious criminality. The person cited Van Heest's "moderate degree of establishment," stable health and living conditions in the Netherlands.
Roy's ruling says Van Heest had known Canada as his only country of residence.
"He has spent his whole life in Canada. He is Canadian except for the fact that, for a reason unknown, his parents never obtained Canadian citizenship for him in spite of the fact that they themselves became Canadian citizens," Roy said.
Roy said the officer fairly summarized Van Heest's "sad story," including the anxiety and remorse he has experienced because of the deportation and the hardship caused by his separation from family.
The officer seems to recognize that Van Heest's criminal record speaks to his mental illness, but ultimately concluded he can't be absolved from all responsibility on that basis, the ruling says.
While the immigration officer concluded the hardship facing Van Heest is not enough to grant him residency on humanitarian and compassionate grounds, Roy argues that hardship is no longer the test.
"It is rather whether a reasonable person in a civilized community would be excited by a desire to relieve the misfortune of another," the ruling says, pointing to a 2015 Supreme Court of Canada ruling.
"It will be for a different decision-maker to make a determination considering the matter through the appropriate lens, which must include the desire to relieve the misfortune of someone in appropriate circumstances."
