Date: 20060127
Docket: IMM-9451-04
Citation: 2006 FC 90
Ottawa, Ontario, this 27th day of January, 2006
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
SHANMUGASUNDARAM UTHAYAKUMAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review of a decision of an immigration enforcement officer (the "officer") dated November 12, 2004, which refused the applicant's request for deferral of a removal order.
[2] The applicant seeks an order quashing the decision of the officer and directing that the request for deferral of removal be reconsidered by a different officer.
Background
[3] Shanmugasundara Uthayakumar (the "applicant") is a citizen of Sri Lanka. In December 1986, he came to Canada and claimed refugee status. In August 1989, he was found to have a credible basis for his claim, and he subsequently submitted an application for permanent residence.
[4] On March 7, 1992, the applicant submitted an application on humanitarian and compassionate ("H & C") grounds under subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2 which was then in force. His application was refused on May 18, 2000. The applicant did not file an application for judicial review of that decision.
[5] Following an immigration inquiry, the applicant was deemed on November 5, 2001 to be inadmissible because of his involvement with a terrorist organization, the Liberation Tigers of Tamil Eelam ("LTTE"). On January 29, 2003, the applicant was ordered deported on the basis of the inadmissibility finding. The applicant sought leave to challenge the inadmissibility decision by judicial review, but his application for leave was dismissed by this Court on July 12, 2003.
[6] Meanwhile, the applicant's wife and two children (who are currently 18 and 19 years old) came to Canada. They are now Canadian citizens. A third child was born in Canada in August 1995. The applicant is the sole income provider for the family and he is currently the owner-operator of Cardinal Couriers, a business which he has had for over five years.
[7] In December 2003, the applicant submitted an application for a pre-removal risk assessment ("PRRA"). By decision dated January 20, 2004, the PRRA officer found that she was not satisfied that there were substantial grounds to believe that the applicant would be subjected to a danger of torture if returned to Sri Lanka. She further found that the applicant would not likely be at risk to life or at risk of cruel and unusual treatment or punishment if returned to Sri Lanka. The applicant was notified of the PRRA officer's decision on October 14, 2004.
[8] On October 27, 2004, the applicant applied for leave to commence a judicial review application in respect of the PRRA officer's decision. The application for leave was dismissed by order of Justice Blais dated June 17, 2005.
[9] On November 8, 2004, the applicant was served with a direction to report for removal to Sri Lanka on a flight scheduled for November 15, 2004. The applicant requested a deferral of the removal order by letter dated November 10, 2004. There were four grounds for his request:
1. He intended to file an application on humanitarian and compassionate grounds, relating to the interests of his wife and three children who relied on him for financial and emotional support;
2. He intended to file a request for ministerial relief regarding the inadmissibility finding of 2001;
3. He had a then pending application for leave to commence a judicial review of his negative PRRA decision; and
4. He was potentially a member of a putative class action, called the Nalliah matter, in which it was argued that all PRRAs made between December 2003 and October 2004 (when the PRRA process was under the auspices of the Canada Border Services Agency) were unconstitutional for institutional bias reasons. (It should be noted that the Nalliah matter has since proved to be unsuccessful for the putative class members. The motion for a stay of removal of all putative class members was denied by Justice Snider on November 24, 2004 in Nalliah v. Canada(Solicitor General), 2004 FC 1649. The merits of the issues raised in the Nalliah matter were subsequently considered and dismissed by Justice Gibson in Say v. Canada (Solicitor General), 2005 FC 739.)
[10] In support of his request for deferral, the applicant submitted a further letter on November 11, 2004, which expressed his concern that his sudden departure, on such short notice, would have an ill effect on his son's health. The applicant attached a letter from his family physician confirming that his youngest son suffered from a congenital heart condition.
[11] On November 11, 2004, the applicant submitted another H & C application. On the same day, the applicant also submitted an application for Ministerial relief pursuant to subsection 34(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), seeking to have the Minister determine that the applicant's presence in Canada would not be detrimental to Canada's national interest .
[12] By letter dated November 12, 2004, the officer rejected the applicant's request for deferral of the removal order.
[13] The letter simply stated the following:
I refer to your request dated November 10 2004 concerning a deferral of Mr. Shanmugasundara's removal from Canada.
Canada Border Services Agency (CBSA) has an obligation under section 48(2) of the Immigration and Refugee Protection Act to carry out removal orders as soon as reasonably practicable. Having considered your request, I do not feel that a deferral of the execution of the removal order is appropriate in the circumstances of this case.
Mr. Shanmugasundara is expected to report for removal on 15 November 2004 as was previously arranged.
[14] On November 13, 2004, the applicant filed an application for leave to commence a judicial review application in respect of the officer's decision to refuse the request for deferral. (Leave was granted by Justice MacTavish on August 26, 2005.)
[15] On November 15, 2004, the applicant filed a motion for a stay of his removal. The motion was adjourned by Justice Snider until November 29, 2004. On November 29, 2004, I heard the stay motion and I granted the stay, pending the final outcome of the two judicial review applications of the negative PRRA decision and the decision refusing to defer removal. As noted above, the application for leave to commence judicial review of the PRRA decision has since been dismissed.
[16] This is the judicial review of the officer's decision to refuse the deferral of the applicant's removal.
Reasons for the Officer's Decision
[17] No reasons were given in the letter communicating the officer's decision of November 12, 2004. The officer provided this Court with her handwritten notes which constituted her reasons for the decision.
[18] The handwritten notes read as follow:
- From direction to report in file,
looks like officer notified PC of
removal itinerary on 01/11/04?
but date served stamp may
indicate 08/11/04.
- This is a security case - subj is
member of LTTE.
- Previous AFL denied.
- PRRA decision delivered OCT 2004
therefore was aware that removal
was going to be imminent
- TD issued/approved.
- In a position to remove now.
- O/S Lit. on PRRA -- > no stay
- No H & C application pending to
date, as far as I can determine
- O/S joint litigation (Lorne Waldman)
-- > no stay on removal
Issues
[19] The issues are as follows:
1. Did the officer err in the analysis of the best interests of the children?
2. Did the officer ignore evidence?
3. Did the officer provide adequate reasons?
4. Did the officer err by refusing to defer the applicant's removal until his H & C application and his request for ministerial relief were dealt with?
Applicant's Submissions
[20] The applicant submitted that the officer erred in not giving any reasons for her decision.
[21] The applicant submitted that the officer provided no indication that she had assessed the factors that had been placed before her relating to the best interests of the applicant's three children. The applicant submitted that while enforcement officers have only a limited discretion to defer removal in light of their obligations under section 48 of IRPA, they must give an alive, attentive and sensitive consideration to the best interests of the children. The applicant submitted that the officer committed a reviewable error in rendering her decision without such a consideration. The applicant relied on the case of Martinez v. Canada (Minister of Citizenship and Immigration), 2003 FC 1341, where Justice Simpson held at paragraph 13 that it is contrary to Article 1 of the Convention on the Rights of the Child to use the provisions of IRPA to separate an applicant and his children before a decision is made on an H & C application.
[22] Further, the applicant submitted that the officer ignored the evidence that the youngest child had a serious medical problem which might have been exacerbated by the sudden departure of the applicant. The applicant submitted that failure to consider compelling individual circumstances, in this case serious health issues, constituted a reviewable error.
[23] The applicant submitted that the officer erred by not deferring the matter until there was an adequate assessment of the applicant's request for ministerial relief. In his request for a deferral of removal, the applicant had stated that his involvement with the LTTE took place many years ago, and he had lived in Canada without incident for the past 18 years. The applicant submitted that the officer ought to have considered these factors.
Respondents' Submissions
[24] The respondents began their submissions by stating that this judicial review application is now moot, as the applicant's removal was effectively deferred by the stay motion and the scheduled removal date of November 15, 2004 has long since passed.
[25] The respondents submitted that the applicant's argument regarding the inadequacy of reasons cannot succeed in light of Boniowski v. Canada(Minister of Citizenship and Immigration), 2004 FC 1161. In that case, Justice Mosley held that given the very limited discretion that a removals officer has to defer a person's removal from Canada, no higher level of formal written reasons is required. Justice Mosley also noted that the recording of written notes should be encouraged to foster better decision-making and to provide a basis of explanation if the decision is challenged on judicial review. Boniowski has been followed by the Federal Court in a number of cases, including Man v. Canada(Minister of Citizenship and Immigration), 2005 FC 454 at paragraph 13. The respondents submitted that the officer's decision letter and her notes to the file (constituting her reasons) satisfied the requirement for reasons.
[26] The respondents submitted that a removals officer is under no obligation to conduct an inquiry akin to an H & C determination. The respondents submitted that the consideration of the best interests of the children need only be commensurate with the submissions made in that regard. The respondents submitted that the references to children in the applicant's request for deferral are minimal at best, and were not more than a mere reference to their existence and as such did not require a separate analysis or reasons.
[27] The respondents submitted that there is no evidence to support the applicant's contention that his sudden departure would harm his son's health. The letter from the family doctor merely stated that his son had a heart condition, but did not speak to the impact of the applicant's removal on the best interests of his son. The respondents further submitted that the departure was not on short notice. A deportation order was issued in January 2003 and a subsequent application for leave and for judicial review was dismissed in July 2003. The applicant has known since October 14, 2004, when his negative PRRA decision was delivered to him, that a date for his removal was imminent.
[28] The respondents submitted that to the extent that the applicant relied on the Martinez decision, there are cogent reasons to doubt the correctness of that decision. In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the Supreme Court of Canada held that the Convention on the Rights of the Child has not been adopted into Canada's domestic law. The respondents submitted that paragraph 3(3)(f) of IRPA does not have the effect of incorporating this Convention into Canada's domestic law and section 25 of IRPA simply codifies the ruling in Baker that children's interests are to be considered in H & C decision-making.
[29] The respondents submitted that the applicant's ministerial relief application and H & C application were only mailed on November 11, 2004, one day after the applicant made his request for a deferral. These two applications were not properly received until after the officer's decision was rendered. The respondents submitted that this fact distinguishes this situation from those cases on which the applicant relies. The respondents submitted that waiting until the last possible moment to file an application of any type should not be allowed to be the basis for a deferral of removal. The respondents submitted that the applicant could have applied for ministerial relief prior to being found to be inadmissible to Canada in November 2001. The respondents pointed out that the applicant had already received a negative decision on an H & C application in May 2000.
[30] The respondents submitted that the mere fact that applications for ministerial relief and for an H & C exemption are pending does not bar a removal order. The respondents cited the case of Saibu v. Canada (Minister of Citizenship and Immigration), 2002 FCT 103, which stated at paragraph 9 that a number of decisions rendered by this Court have held that the Minister is not under any obligation to decide an H & C application prior to removal of the applicant from Canada.
Relevant Statutory Provisions
[31] IRPA sets out the following relevant provisions:
| 3(3) This Act is to be construed and applied in a manner that
. . .
(f) complies with international human rights instruments to which Canada is signatory.
25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister's own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.
(2) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province's selection criteria applicable to that foreign national.
34. (1) A permanent resident or a foreign national is inadmissible on security grounds for
(a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada;
(b) engaging in or instigating the subversion by force of any government;
(c) engaging in terrorism;
(d) being a danger to the security of Canada;
(e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or
(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c).
(2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest.
48. (1) A removal order is enforceable if it has come into force and is not stayed.
(2) If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as is reasonably practicable.
|
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3(3) L'interprétation et la mise en oeuvre de la présente loi doivent avoir pour effet:
. . .
f) de se conformer aux instruments internationaux portant sur les droits de l'homme dont le Canada est signataire.
25. (1) Le ministre doit, sur demande d'un étranger interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s'il estime que des circonstances d'ordre humanitaire relatives à l'étranger - compte tenu de l'intérêt supérieur de l'enfant directement touché - ou l'intérêt public le justifient.
(2) Le statut ne peut toutefois être octroyé à l'étranger visé au paragraphe 9(1) qui ne répond pas aux critères de sélection de la province en cause qui lui sont applicables.
34. (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants:
a) être l'auteur d'actes d'espionnage ou se livrer à la subversion contre toute institution démocratique, au sens où cette expression s'entend au Canada;
b) être l'instigateur ou l'auteur d'actes visant au renversement d'un gouvernement par la force;
c) se livrer au terrorisme;
d) constituer un danger pour la sécurité du Canada;
e) être l'auteur de tout acte de violence susceptible de mettre en danger la vie ou la sécurité d'autrui au Canada;
f) être membre d'une organisation dont il y a des motifs raisonnables de croire qu'elle est, a été ou sera l'auteur d'un acte visé aux alinéas a), b) ou c).
(2) Ces faits n'emportent pas interdiction de territoire pour le résident permanent ou l'étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l'intérêt national.
48. (1) La mesure de renvoi est exécutoire depuis sa prise d'effet dès lors qu'elle ne fait pas l'objet d'un sursis.
(2) L'étranger visé par la mesure de renvoi exécutoire doit immédiatement quitter le territoire du Canada, la mesure devant être appliquée dès que les circonstances le permettent.
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Analysis and Decision
[32] Standard of Review
Decisions by removals officers as to whether or not to defer removal are subject to the highest deference and accordingly, the standard of review is that of patent unreasonableness (see J.B. v. Canada (Minister of Citizenship and Immigration), 2004 FC 1720 at paragraph 25 and Hailu v. Canada (Solicitor General), 2005 FC 229 at paragraph 12, which found that the patently unreasonable standard should be applied to the decisions of removals officers, given the nature of the statutory scheme and in particular, the limited and fact-driven discretion they exercise under subsection 48(2) of IRPA).
[33] Issue 1
Did the officer err in the analysis of the best interests of the children?
The request for a deferral of removal dated November 10, 2004 stated that the applicant's removal on such short notice would have an emotional impact on his children. Although the officer did not specifically mention the best interests of the children, she did deal with the length of time that the applicant would have known he was going to be removed from Canada, and she concluded he would be aware that removal was imminent after his PRRA decision was given to him in October 2004. It was only a removal on short notice that the applicant alleged was not in the best interests of his children. A reading of the officer's notes shows that she did not consider the removal to be on short notice.
[34] The applicant also stated that removal of the applicant on short notice would have a serious effect on the applicant's son who has a congenital heart condition. I have reviewed the medical letter and it merely states that the applicant's son has a congenital heart condition. It does not mention what effect the applicant's departure on short notice would have on the applicant. There is simply no evidence as to the effect the applicant's departure would have on his son.
[35] Based on the evidence that was before the officer and the submissions made to the officer, I cannot conclude that the officer's decision was patently unreasonable.
[36] Issue 2
Did the officer ignore evidence?
The applicant submitted that the officer ignored the doctor's letter about the youngest son having a congenital heart condition, which was attached to the applicant's further letter dated November 11, 2004. I agree with the applicant that this information was not mentioned by the officer. However, it would not have had any effect on the officer's decision as the doctor's letter does not state that the applicant's removal would have any effect on the youngest son. The officer did not err in this respect.
[37] Issue 3
Did the officer provide adequate reasons?
While the officer did not give any reasons for her refusal to defer in the letter to the applicant, the officer did make notes of her decision process (tribunal record at page 28). These notes, coupled with the refusal letter, constitute adequate reasons (see Bonioswski v. Canada(Minister of Citizenship and Immigration), 2004 FC 1161).
[38] Issue 4
Did the officer err by refusing to defer the applicant's removal until his H & C application and his request for ministerial relief were dealt with?
The officer refused to defer the applicant's removal until his H & C application and his request for ministerial relief were dealt with. I am of the opinion that the officer's failure to defer removal until these two matters were dealt with was not an error. With respect to the H & C application, the jurisprudence is clear that the mere filing of an H & C application is not, of itself, a ground on which to defer removal. It should be noted that the applicant submitted his H & C application and request for Ministerial relief on November 11, 2004 and the officer's decision was issued November 12, 2004. The H & C application could have been filed earlier. Similarly, under the present legislation, the request for Ministerial relief could have been made earlier. I cannot conclude that the officer made an error on this issue.
[39] The application for judicial review is therefore dismissed.
[40] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
[41] At the request of the respondents, the style of cause is amended by deleting "The Solicitor General of Canada" as a respondent and adding "The Minister of Public Safety and Emergency Preparedness" as a respondent.
ORDER
[42] IT IS ORDERED that:
1. The application for judicial review is dismissed.
2. The style of cause is amended by deleting "The Solicitor General of Canada" as a respondent and adding "The Minister of Public Safety and Emergency Preparedness" as a respondent.
"John A. O'Keefe"
Ottawa, Ontario
January 27, 2006
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9451-04
STYLE OF CAUSE: SHANMUGASUNDARAM UTHAYAKUMAR
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 24, 2005
REASONS FOR ORDER AND ORDER OF: O'KEEFE J.
DATED: January 27, 2006
APPEARANCES:
| Timothy Wichert
|
FOR THE APPLICANT
|
| Rhonda Marquis
|
FOR THE RESPONDENTS
|
SOLICITORS OF RECORD:
| Jackman & Associates
Toronto, Ontario
|
FOR THE APPLICANT
|
| John H. Sims, Q.C.
Deputy Attorney General of Canada
|
FOR THE RESPONDENTS
|
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