Date: 20060915
Docket: IMM-6075-05
Citation: 2006
FC 1100
OTTAWA, ONTARIO, September 15, 2006
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
ELLAH
ADOMAKO
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
Applicant is a 34-year-old citizen of Ghana
who fled to Canada on January 19, 2003, due to a
fear of serious harm from her ex-spouse. On January 24, 2003, she claimed
refugee protection, but the claim was refused on May 11, 2004, by the
Immigration and Refugee Board because adequate state protection was available
to her in Ghana.
[2]
On
November 13, 2004, the Applicant married Frederick Appiah-Danso, a permanent
resident of Canada.
[3]
On
February 18, 2005, the Minister of Citizenship and Immigration (the “Minister”)
announced that out-of-status spouses of Canadian residents would be permitted
to submit sponsorship applications from within Canada. This policy however did not apply to
‘removal ready’ cases, i.e. cases where the Applicant had received the
application papers to make a Pre-Removal Risk Assessment (“PRRA”) application.
Applicants who were subject to a removal order but not ‘removal ready’ would
receive a 60-day administrative deferral while their files were processed on an
expedited basis.
[4]
On April 4, 2005, the Applicant
was summoned to the office of Citizenship and Immigration Canada (“CIC”) and
given a PRRA application. At this time the Applicant was deemed “removal
ready”.
[5]
The
Applicant alleges that they had originally planned on submitting an outland
spousal sponsorship application through the office of the Canadian High Commission
in Ghana (“CHC Ghana”). However, once
the Minister’s policy was announced they decided on an inland application.
Unfortunately, they had failed to gather all the necessary papers when they
were called to the PRRA interview on April 4, 2005. Subsequently, when they
discovered that the new policy did not apply to ‘removal ready’ applicants, the
Applicant filed an outland spousal sponsorship application with the CIC
Mississauga on April 11, 2005.
[6]
On June
24, 2005, the CIC Mississauga found the Applicant’s husband eligible to sponsor
the Applicant. However, on August 11, 2005, CHC Ghana advised them that on
average it would take 21 months to process a spousal application.
[7]
On
September 14, 2005, the Applicant received her negative PRRA decision and a
direction to report for removal on October 12, 2005.
[8]
On October
2, 2005, the Applicant made a request for a deferral of removal on humanitarian
grounds because a long-term separation with her husband would cause excessive
hardship on them. Consistent with the Minister’s new policy, which was designed
to alleviate hardship in spousal sponsorship cases, counsel for the Applicant,
in a letter dated October 3, 2005, suggested that a temporary deferral of
removal based on humanitarian grounds should be granted for either one of the
two following reasons:
1.
To allow
the Applicant to apply and be processed from within Canada as per the inland spousal program; or
2.
To allow
the Applicant to remain in Canada with her husband until such a
time as she is called on by the CHC Ghana to attend a personal interview
regarding her pending spousal application.
Decision
[9]
The
request for deferral was denied on October 7, 2005. The removal officer stated:
“As neither of these requested situations qualify for an administrative
deferral of removal under the IRPA I do not feel that the circumstances of this
case warrant such.”
Issue
[10]
The
Applicant argues that the removal officer had the discretion to defer removal
(pending consideration of an out of Canada spousal family class application)
until the Applicant was called to attend a personal interview abroad and that
the removal officer fettered his discretion to defer the Applicant’s removal by
limiting himself to situations that would “qualify for an administrative
deferral of removal under the Immigration and Refugee Protection Act.”
STANDARD OF REVIEW
[11]
This Court
established that the appropriate standard of review of a removal officer’s
decision to refuse a deferral of removal is one of patent unreasonableness. (Zenunaj
v. Canada (Minister of Citizenship and
Immigration),
[2005] F.C.J. No. 2133.)
ANALYSIS
[12]
The
discretion of a removal officer is set out in section 48(2) of IRPA. It states:
(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.
[13]
This
discretion was considered by Justice Pelletier in Wang v. Canada (M.C.I.),
[2001] F.C.J. No. 295. After considering the logical boundaries in the notion
of “deferral,” Justice Pelletier described the discretion in the following
manner at para 48:
It has been recognized that
there is a discretion to defer removal though the boundaries of that discretion
have not been defined. The grant of discretion is found in the same section
which imposes the obligation to execute removal orders, a juxtaposition which
is not insignificant. At its widest, the discretion to defer should logically
be exercised only in circumstances where the process to which deferral is
accorded could result in the removal order becoming unenforceable or
ineffective. Deferral for the mere sake of delay is not in accordance with the
imperatives of the Act. One instance of a policy which respects the discretion
to defer while limiting its application to cases which are consistent with the
policy of the Act, is that deferral should be reserved for those applications
or processes where the failure to defer will expose the applicant to the risk
of death, extreme sanction or inhumane treatment in circumstances and where
deferral might result in the order becoming inoperative. The consequences of
removal in those circumstances cannot be made good by re-admitting the person
to the country following the successful conclusion of their pending
application. Family hardship cases such as this one are unfortunate but they
can be remedied by readmission.
[14]
In Simoes
v. M.C.I, [2000] F.C.J. No. 936 Justice Nadon held at para 12:
In my opinion, the discretion
that a removal officer may exercise is very limited, and in any case, is
restricted to when a removal order will be executed. In deciding when it is
"reasonably practicable" for a removal order to be executed, a
removal officer may consider various factors such as illness, other impediments
to travelling, and pending H&C applications that were brought on a timely
basis but have yet to be resolved due to backlogs in the system.
[15]
The
removals officer here considered the totality of the Applicant’s situation. He
was well aware to the Applicant’s situation, the Minister’s new policy and the
administrative deferral connected therewith.
[16]
The
affidavit of the Applicant makes it clear that originally she considered
submitting an outland application, but decided to take advantage of the
Minister’s new policy that allowed her to put forward an inland application;
however, she was tardy in so doing. Once she was disqualified by becoming
‘removal ready’ she changed her mind again and filed an outland application
instead, with the explicit knowledge that she would have to leave the country.
Once she realized that the extent of the backlog in processing spousal
applications in Accra would result in a 21-month
delay, she applied for a deferral on H&C grounds.
[17]
Given that
an outland application by definition means voluntarily returning to Ghana, the only grounds on which she could
base her H&C application on was family separation. While separation
unquestionably imposes hardship, there is an abundance of jurisprudence stating
that mere family separation is not a sufficient ground to justify an H&C
deferment. (See Wang, supra, at para 48; Kaur v. Canada (Minister of
Citizenship and Immigration), [2001] F.C.J. No. 1082, at para 18; Rettegi
v. Canada (Minister of Citizenship and
Immigration),
[2002] F.C.J. No. 194, at para 16.)
[18]
Removal
officers have limited discretion and accordingly, the reasons for decision are
often sparse and not as well written as one might wish. They have to be read in
their totality; rather than focusing on a single sentence and reading it too
literally. In this case, after looking at the entire decision, it becomes
clear that the removal officer was aware of the total situation and took all of
the relevant factors into account. I take his decision to mean that under the
circumstances of the Applicant’s case, she had not advanced any facts that
would qualify her for H&C considerations nor had she made out a case
qualifying her for an administrative deferment.
[19]
Consequently,
I do not find that the removal officer fettered his discretion or came to a
patently unreasonable decision. Accordingly, this application cannot succeed.
ORDER
THIS COURT ORDERS that this application be
dismissed.
“Konrad
W. von Finckenstein”
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