He's been in Canada since childhood. His family is allowed to stay, but he's facing deportation

Kemo Montique moved to Canada from Jamaica at age 11 and doesn't remember much about his life in the country where he was born.

Most of his family lived in Canada, so his parents moved him and his two siblings to the Toronto-area in 2007 to join their loved ones. 

But now, despite having no ties or relatives in the country where he was born, the 27-year-old is being deported back even though his entire family has been permitted to stay in Canada.

Immigration lawyers who CBC Toronto spoke to — one representing Montique and another who isn't connected to the case — say the situation raises questions around how Canada's immigration ministry makes decisions around permanent residency. 

Montique said his parents initially came to the country on visitor visas, which expired around 2011 or 2012, although he's not sure of the exact date. As a kid, Montique said he wasn't aware of the family's immigration status or its precarity.

"I was at a young age ... I didn't know anything that was really going on," he said. 

Family allowed to stay in Canada

By 2019, his parents and siblings applied for permanent residency as a family under humanitarian and compassionate grounds, which is a type of application that examines how settled someone is in Canada, their family ties in the country and the best interests of any children involved. 

The Montique family used an immigration application counselor, who Montique said advised him not to apply as part of his family's application. That might have been due to him being in his mid-20s and no longer considered a dependent, he said, although he's not sure as he feels the counselor didn't properly explain the paperwork to him.

Montique ended up applying as an individual in Dec. 2021, also under humanitarian and compassionate grounds.

While his family's application was approved, Immigration, Refugees and Citizenship Canada (IRCC) denied Montique's application on Aug. 1 of this year.

He has been ordered to leave Canada by the last week of September. Though he has retained a lawyer who is fighting the deportation decision, Montique said he's devastated at the prospect of leaving his home. 

"It was so shocking. Canada is a place all about immigrants. It's our number one priority. But it seems there's a strong sense of urgency to remove specific people in the country and I don't understand why," he said.

"I've never committed a crime. I pay my taxes. I've worked. I've attended school. I've considered Canada my home for many, many years."

Adrienne Smith, a Toronto immigration lawyer and adjunct professor at Queen's University's law school who isn't involved in the case, said she is disappointed Canada is trying to deport Montique. She said he came here as a child by no choice of his own, and has been living here for 16 years, building a life that includes not just family, but friends, school and work. 

"At a certain point, just by the sheer amount of time you've been in Canada, establishment is found. Sixteen years in Canada — I'm shocked to hear that an [application] like this wasn't approved," said Smith.

"He's a Canadian in every sense of the word, except for not having the paper."

Montique fears violence in Jamaica 

According to documents Montique provided to CBC Toronto, he was informed on Aug. 2 that IRCC reviewed his application for permanent residency and an officer determined his reasons for staying "are not sufficient." No further explanation was provided. 

A spokesperson for IRCC said in an email statement the ministry can't comment on individual cases due to privacy legislation. 

"A decision to remove someone from Canada is not taken lightly. Every individual facing removal is entitled to due process, but once all avenues to appeal are exhausted, they are removed from Canada in accordance with Canadian law," Loïc Ouellette wrote. 

After his permanent residency application was rejected, Montique submitted a Pre-Removal Risk Assessment Application (PRRA), which is an application someone who is facing removal can submit to prove they would be in danger if they are sent back to their country of origin. He outlined he is fearful due to a high level of crime and violence in the country.

The PRRA was also rejected. In the government's decision, it said that concerns about safety in Jamaica are the same ones faced by every resident of that country, and therefore "the applicant does not face a risk to life, of cruel and unusual treatment or punishment or a danger of torture."

Case raises 'consistency' issues: lawyer

Smith said the principles under Canadian immigration law is to keep families together and it's concerning to see a family with similar individual circumstances face inconsistencies in who gets approved and who gets denied.

"This raises a bigger issue of consistency and decision-making," she said. 

In her practice, Smith said she's noticed decisions often comes down to which officer gets the file, and it's difficult to predict the outcome of different applications.

Montique's lawyer, Daniel Kingwell, who is a partner at Mamann, Sandaluk and Kingwell LLP in Toronto, said he agrees it's strange that Montique's mother was approved for permanent residency but Montique wasn't. That's because, Kingwell said, their circumstances are the same except that she made the decision to come to Canada as an adult, while Montique grew up in the Toronto-area, which should make his case even more compelling. 

"As an adult, [Montique is] faced with a situation [he] didn't create," said Kingwell, who said this type of decision looks bad on the Canadian government.

"It's pretty straightforward … he should get status."

Kingwell has launched an appeal on Montique's behalf and said he expects a decision within the next two weeks or so.

In the meantime, Montique said he doesn't want to see the same happen to others who were brought to Canada as children.

"Our parents made a decision to take us here for whatever reason, they chose to do it out of our control," he said.

"We should not be treated as criminals, because what have we done wrong?"