Marketa Wali Baraky met her future husband Adolf Gabco in a Toronto restaurant and the two started dating in 2009 when he was seeking asylum in Canada.

Gabco, a Roma refugee, was deported back to his native Czech Republic in 2012 after his claim was rejected. The couple got married shortly after and Baraky applied to sponsor Gabco to Canada at the end of that year.

The two thought they could finally be reunited when their spousal sponsorship application was approved in April 2014 as the only hurdle separating them would be getting an “authorization to return to Canada,” known as an ARC, from Canadian officials to let Gabco back into the country.

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For more than three years, Baraky and Gabco have been pressing the Canadian visa post in Vienna to get the clearance for Gabco to claim his permanent residency. The request for the ARC was first rejected in 2016, but the Federal Court of Canada granted an appeal and ordered it to be reconsidered by the visa post.

In September, Gabco’s ARC application was denied, again, because the visa officer was not convinced he had a “compassionate, compelling and exceptional” case.

“The news was shocking. We don’t understand why this is happening,” said Gabco from the Netherlands, where he has been working as a chef at a hotel restaurant after he said he failed to secure employment in the Czech Republic due to his Roma ethnicity. “We are beyond frustrated.”

Anyone who has been removed from Canada must apply for an ARC at a Canadian visa post in order to return to the country, even if their immigration applications are later approved and they have a reason to return.

However, lawyers said it is at the discretion of individual visa officers and the decisions can be arbitrary.

Immigration, Refugees and Citizenship Canada, receives an average of 1,300 requests a year for authorization to return from people who had previously been removed. The success rates hover at 80 per cent. Mexico, the United States and China are among the top three countries with the highest volume of requests to return.

“Visa officers are abusing their discretion. They are preventing people from returning to Canada despite the fact that they pose no danger to Canadian society, which is the test they are supposed to use. It’s appalling,” said immigration lawyer Richard Wazana.

“This is purely punitive. I’m not talking about people with criminal records. Just immigration infractions like overstay, going underground, not reporting for removal.”

While officials assessing an immigration application examine if an applicant meets the eligibility criteria, Immigration Department spokesperson Faith St-John said individuals applying for an ARC must also demonstrate they have “compelling” reasons for readmission to Canada that outweigh the circumstances surrounding their removals.

“Meeting the eligibility requirements for a (permanent resident) visa is not sufficient to grant an ARC,” said St-John in an email, adding that previous personal history such as failing to appear for a hearing or removal can work against the applicants.

“Applicants can be found eligible to be sponsored or eligible to apply for immigration, however, they can still be deemed inadmissible and have their application for permanent residence refused.”

A failed refugee claimant, Antal Orsos, also a Roma, was deported to Hungary from Toronto in March 2014 while his application for permanent residency on humanitarian and compassionate grounds as a gay man was still in process. In January, the application was approved and he applied to return to Canada, but was denied this summer.

“I was very happy but now I feel hopeless and helpless,” said Orsos from Dortmund, Germany, where he now stays out of fear of persecution as a Roma and gay man.

In notes on his immigration record obtained by the Star, the Vienna visa post said Orsos did not voluntarily leave Canada as instructed and failed to show any hardship or difficulty in relocating to and re-establishing himself after his deportation from Canada.

“I have also considered whether any tangible or intangible benefits would accrue to Canada or the client if he were to be granted an ARC and issued a (permanent resident) visa,” it said. “I am not satisfied that there are sufficient compassionate, compelling or exceptional circumstances to justify the issuance of an Authorization to Return to Canada.”

In Gabco’s case, the visa post in Vienna said he had a history of “systemic lack of co-operation” with both immigration and border enforcement officials as shown when he failed to report his change of address and to authorities for his scheduled removal.

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“Client has indicated sponsor has visited him many times overseas. Client has status and is gainfully employed in the Netherlands. Client has not indicated why this arrangement could not be expected to continue for the foreseeable future,” a visa officer noted in Gabco’s file.

“The client and his sponsor have the reasonable and realistic option of resuming their life together in countries other than Canada.”

Immigration officials declined to comment on both Orsos’ and Gabco’s cases, citing that their ARC decisions are currently before the court.