Illegal Yukon worker gets excluded

Wednesday July 28, 2010

By Genesee Keevil

Francis Dura is being kicked out of Canada for baking too many cookies at a Tim Hortons.

He is one of two temporary Filipino workers found working illegally in Whitehorse this spring.

On Monday, in his lawyer’s crowded office on Second Avenue, Dura was given his exclusion order via speakerphone by immigration officials in Vancouver.

The hall downstairs was packed with more than 40 people, most from the Yukon’s thriving Filipino community.

“A month ago (the hearing) was adjourned because they didn’t have a big enough room for all of us,” said Canadian-Filipino Association of Yukon president Yvonne Clarke, standing in the hall.

“The first time, I thought it was a mistake.”

But this time around, the room where the hearing is taking place is even smaller.

“I think they’re just not very organized,” she said.

“We all took time off work to be here for Francis. And here we are standing in the lobby.”

Upstairs, sitting quietly beside his lawyer Karen Wenckebach, Dura looked at the ground while a disembodied voice from the speakerphone, often distorted by static, explained his rights.

If it’s proven you were “working in violation of your work permit, we are required to make an exclusion order against you,” said the voice of Canadian Border Services hearing officer Kenny Nicolaou.

“Border services will remove you from Canada,” he said.

“And you will not be allowed to return for one year.”

Then, Nicolaou laid out Immigration’s side of the story.

Dura arrived in Canada for the first time on December 29, 2009, landing in Calgary where he was issued a temporary work permit that required him to work as a cashier at Canadian Tire there.

But on May 5, a border services officer in Whitehorse “interviewed Dura, who admitted he’d been employed by Tim Hortons as a baker for $11.25 an hour - after initially saying he wasn’t working.”

Dura did “not comply with his work permit,” said Nicolaou. “An appropriate removal order is an exclusion order.”

But before any decisions were made, Dura got a chance to explain his side of things.

In a soft voice, the 28-year-old talked about leaving the Philippines to escape his mother’s abusive boyfriend, who’s a cop. Dura ended up working in Abu Dhabi. And it was here, after four years, that he was lured by Canada’s greener pastures.

An employment agency offered him work in Canada through the federal Temporary Foreign Workers Program, but there was a catch. Dura had to pay $3,500 to the agency, called Platinum Care, and pay his own airfare, which was roughly $650.

“They said they’d return the money when I started working,” he said.

But Dura never did start at the Calgary Canadian Tire job his agency set up.

“I kept calling them, but they said they didn’t have work there for more than one month,” said Dura.

“I was always calling the agency and they always told me just to wait.”

Desperate and nearing the end of his savings, Dura wrote family in the Philippines and discovered he had an aunt in Whitehorse.

After hearing his story, she bought him a plane ticket and he arrived February 24.

“I was trying to find an employer who would help me find a job because my personal savings had been exhausted,” he said.

“And I was happy Tim Hortons hired me.”

A store manager assured Dura she would process his paperwork using the Yukon Nominee Program, he said.

Dura worked a total of 112 hours as a baker at the coffee chain before his manager realized his work permits didn’t allow it.

“As soon as they told me I can’t work, on that day I stopped,” said Dura.

But it was too late.

On May 4, police showed up outside Dura’s residence.

He was at home recovering from an acute asthma attack, on medication that makes him uneasy, nauseous and jittery, when someone told him the cops were outside.

“I started panicking,” he said.

“The first thing I though was that they were going to bring me back to Calgary, where I would suffer the same consequences again.”

So, Dura hid in a closet.

“It was my first reaction,” he said.

“In the past I was tortured by a policeman,” he added, referencing his mom’s boyfriend.

Dura was discovered and questioned by an immigration official who arrived with the police.

“He was speaking to me, but I couldn’t hear him because my ears were ringing,” said Dura.

As he related these events in Wenckebach’s office on Monday, Dura started to have some trouble breathing and fumbled for his puffer.

“He’s having an asthma attack,” explained Wenckebach to the men on the other end of the speakerphone.

Dura, after a small break, said he didn’t mean to lie to the immigration official.

When he asked Dura if he was working, he said “No.”

“But I only heard him asking about Canadian Tire, so I said, ‘No,’” he said. “I had ringing in my ears and my body was numbing.”

And a few minutes later, the second time he denied working, Dura still thought he was being asked about Canadian Tire, he said.

Dura handed over all his documents before being put in handcuffs and dragged out of the house.

After Dura told his story, Nicolaou had only a couple of questions.

“Did you go to Canadian Tire in Calgary to inquire about your job?”

No, said Dura. “I didn’t know where it was.”

And did Dura contact Citizenship and Immigration?

Again, the answer was, “No. I was afraid if I contacted them, at the scratch of a pen, they would send me home,” he said.

“I only contacted my agency.”

But Canadian Tire tells a different story.

Dura didn’t show up for work, or even his initial interview, said Calgary Canadian Tire owner Chris Pustowka, in a previous interview with the News.

“The information we got was that he was taking some time to visit family or friends up north,” said Pustowka.

Pustowka hired Dura through Platinum Care, and when he didn’t hear from Dura, Platinum found Pustowka another employee.

Platinum officials told the News Dura arrived on January 16 and was informed his start date and orientation would be March 1. Between these dates, he decided to visit Yukon relatives.

On March 4, Dura contacted Platinum with his contact information and was told to return for orientation.

But he decided to stay in the Yukon to apply for permanent residence status under the Nominee Program.

Then Dura signed a waiver relinquishing his right to work with Canadian Tire, the agency said. It last heard from him in mid-April, when he was working at Tim Hortons.

But none of this came up during the hearing and even if it had, Dura’s fate was already sealed.

“Your story is likely true,” Immigration and Refugee Board of Canada adjudicator Michael McPhalen told Dura.

“But it doesn’t make any difference whether it’s true or a lie.

“The fact is you were still working in violation of your work permit, whether or not you meant to.

“And that is inadmissible.

“The law requires an exclusion order.”

Downstairs, Dura’s community wept and embraced him after hearing the news.

Dura has the option to appeal his exclusion order, but Legal Aid won’t supply him with a lawyer this time around.

“The costs are prohibitive, appealing to the federal court,” said Yukon Federation of Labour president Alex Furlong.

Instead, Dura will appeal to the Immigration minister on humanitarian and compassionate grounds, he said.

“The minister has total authority and can stay the exclusion order.”

“It doesn’t make any logic,” said Dura’s aunt Ailene Gayangos.

“The bottom line is the employee is paying the price.”

Gayangos tried to talk to Canada’s border service

agency, to get information for Dura and figure out how the system works.

“And I came out shaking,” she said.

“It’s almost like they chase you away.

“Here you are trying to abide by and follow the system and there is no office to guide you along the way.”

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