Date: 20050214
Docket: IMM-4542-04
Citation: 2005 FC 229
Ottawa, Ontario, this 14th day of February, 2005
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
MAZA HAILU
Applicant
and
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant is a 24 year old citizen of Ethiopia who arrived in Canada on July 3, 2001. She made a Convention refugee claim upon arrival in Canada. She is considered of mixed race, part Eritrean and part Ethiopian. She alleges her father who is considered Eritrean was deported to Eritrea. In February of 2001, she was also deported to Eritrea, which she left as she feared being conscripted into the army and as she did not know the Eritrean language. She fled to Canada via Kenya.
[2] Her Convention refugee claim was denied on August 1, 2002. The Immigration and Refugee Board (the "Board") found her not to be a Convention refugee or a person in need of protection, as she did not provide sufficient credible and trustworthy evidence to establish her mixed Ethiopian and Eritrean heritage, nor that she was persecuted as a result. No judicial review of this decision was sought.
[3] The Applicant's first PRRA was submitted on December 12, 2002, in which the Applicant stated that she would suffer punishment and possibly death if she were returned to Ethiopia due to her father being suspected of being a spy for the Ethiopian government. She also alleged that she would be at risk due to her being a female in a country with a poor human rights record in relation to women. This application was denied on August 20, 2003, as she did not submit any new evidence which arose after her refugee claim was rejected. She was scheduled for removal on December 9, 2003. She did not appear for removal on December 9, 2003 and a warrant for her arrest was issued.
[4] The Applicant was admitted to Grace General Hospital in Winnipeg on December 15, 2003 for a psychotic depression disorder. She remained there until December 31, 2003, was discharged and then readmitted on January 7, 2004, being discharged again on January 26, 2004. Dr. Armstrong, whose care she was under, linked her depression to her removal and expressed concern that she would remain in a psychotic state for an extended period of time, with inappropriate psychiatric care being available in Ethiopia.
[5] Applicant's counsel submitted a second PRRA application to CIC on February 10, 2004. He further submitted, on April 28, 2004, a birth certificate showing her father is of Eritrean nationality and her mother is Ethiopian.
[6] The Applicant received a Call in Notice from Citizenship and Immigration Canada ("CIC") to appear on March 3, 2004. She did not attend due to illness. She received a second Call in Notice on April 14, 2004, for attendance on April 21, 2004.
[7] The Applicant was arrested when she appeared for her pre-removal hearing and was released on conditions at her 48 hour detention review hearing. She then submitted a humanitarian and compassionate application on May 10, 2004.
[8] On May 10, 2004 the Applicant also received a "Notification of Removal from Canada", stating that she was to report for removal on June 1, 2004.
[9] On May 18, 2004, the Applicant filed an application for judicial review of the decision of the immigration enforcement officer of May 10, 2004, executing the removal order and refusing to defer the removal of the Applicant from Canada. O'Keefe J. granted a stay of removal on May 28, 2004 until her application for judicial review was either denied or heard and granted.
[10] The decision at issue dated May 10, 2004 was made by Immigration Officer Andy McMaster ("removals officer"). It advised of travel arrangements that had been made for the Applicant's removal from Canada to Ethiopia. It did not provide any reasons for the officer's decision, nor did it acknowledge the second outstanding PRRA filed February 10, 2004 or the additional submission of April 28, 2004.
ISSUES
[11] Two issues arise:
1. Was the removals officer required to provide reasons to the Applicant, according to the rules of natural justice?
2. Is there a duty on the part of the removals officer to review a subsequent PRRA application filed pursuant to Regulation 165 of the IRPA Regulations prior to the execution of a removal order?
STANDARD OF REVIEW
[12] In Adviento v. Canada (Minister of Employment and Immigration) [2003] F.C.J. No. 1837, Martineau, J. stated at para 39:
Here, the determination made here by the removal officer is essentially factual. Pursuant to paragraph 18.1(4)(d) of the Federal Court Act, it should only be reviewed if it was made in a "perverse" or "capricious" manner or without regard for the material before the removal officer. As already mentioned, the strong words of this provision, "capricious" and "perverse", suggest that factual determinations be reviewed on a "patent unreasonabless" standard (Harb, [2003] F.C.J. No. 108, supra, at para. 14 and Owen, [2003] 1 S.C.R. 779, supra, at para. 87).
Similarly in J.B. v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 2094 the court noted at paras 24 and 25:
24. In Prasad v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 805, 2003 FCT No. 614, Justice Russell applied the patently unreasonable standard in concluding that the removals officer had made reviewable factual errors.
25. In my view, 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.
On the basis of these decisions, I will apply the patent unreasonableness standard.
ANALYSIS
[13] ISSUE 1: Was the removals officer required to provide reasons to the Applicant, according to the rules of natural justice?
[14] The duty of a removals officer to provide reasons was recently canvassed by Mosley J. in Boniowski v. Canada (Minister of Citizenship and Immigration), 2004 FC 1161 where he stated at paragraphs 11 and 12:
11. In my view, given the purpose of Section 48(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") in the statutory scheme, that is to allow for some limited discretion in the timing of a person's removal from Canada, any reasons requirement was fulfilled in the decision letter of September 12, 2003 where the officer indicated that she had received and reviewed the applicants' submissions, and her decision was not to defer removal. The nature of this decision is one where an officer has a very limited discretion, and no actual, formal decision is mandated in the legislation or regulations to defer removal. Instead, the jurisprudence instructs that an officer must acknowledge that she has some discretion to defer removal, if it would not be "reasonably practicable" to enforce a removal order at a particular point in time. For example, the existence of a pending H & C application that was filed in a timely manner, medical factors and the arrangement of travel documents are some of the factors that may be considered by the officer at this time. It would not be reasonably practicable to remove someone who did not have a travel document or who was seriously ill. However, I am not satisfied that a higher level of formal, written reasons is required for this sort of administrative decision.
12. The notes of the officer dated September 12, 2003 were filed as part of this judicial review proceeding and need not, as a regular procedure, be provided to applicants, given the nature of this decision. However, as articulated in Baker, supra, the recording of written notes that set out the reasons for an administrative decision fosters better decision-making, and provide a basis of explanation if such decision is challenged on judicial review. Therefore, while not obligatory pursuant to the statutory context, such note-keeping should be encouraged as a regular practice in the respondent's department.
(underlining added)
[15] I fully agree with Mosley J. that decisions of a removals officer, given the very limited nature and extent of powers of such officers, do not require a formal decision with reasons. By the same token, the keeping of notes as suggested by Mosley J. is useful and ought to be encouraged, it is however not an absolute requirement.
[16] ISSUE 2: Is there a duty on the part of the removals officer to review a subsequent PRRA application filed pursuant to Regulation 165 of the IRPA Regulations prior to the execution of a removal order?
[17] The duties of a removal officer have been considered at length in Wang v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 682 where Pelletier J. stated at paras 47 and 48:
47. To summarize, the discretion to defer removal is a discretion vested in the Minister as opposed to the individual who is responsible for making the arrangements for removal. That person acts as the Minister's representative for the purpose of exercising that discretion but this does not mean that the discretion is tailored to that individual's actual or perceived level of authority. The discretion is bounded only by the terms of the Act dealing with removals. The Minister is under a positive obligation to execute removal orders, which are lawful orders, generally made by persons other than the Minister who hold designated offices with a specific grant of authority to make such an order. These orders are not mere administrative arrangements which the Minister can alter at her convenience. In fact, the Minister is precluded from issuing a Ministerial permit to a person who is subject to a removal order which is compelling evidence that the Minister is intended to execute removal orders as opposed to rendering them ineffective.
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 readmitting 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. (Underlining added)
[18] It is also well established that the onus rests on the applicant to make out the case to the removals officers that would "compel" him to defer. As Snider J. stated in John v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 583 at paragraph 24:
Further, it appears to me that the burden rests squarely with the person seeking a deferral to present compelling evidence to support the deferral, including, if applicable, evidence related to the best interests of the child. Vague references to financial concerns or unsubstantiated submissions of the lack of alternative caregivers ought not to be sufficient and certainly, in my view, does not shift the burden to the officer to make inquiries and otherwise ferret out better information. (Underlining added)
[19] In the present case, the removals officer had before him:
a) the report of the Applicant's doctor dated February3, 2004 and
b) a notice of an application for a PRRA (subsequent application) but not the actual application.
[20] The Applicant's counsel never provided the removals officer with:
a) the actual PRRA (subsequent application) or
b) the birth certificate of the father which was sent to CIC on April 28, 2004.
[21] However, the removals officer was aware of the previous categorical rejection of her refugee claim by the Board. The Board had denied her claim, not believing her story of mixed Ethiopia/Eritrean ancestry, nor the story of abduction to Eritrea (given she could not remember the name of the camp, nor the street on which she lived in Asmara, nor anything about Asmara). Her first PRRA application was rejected because it did not contain evidence that had not already been before the Board.
[22] The onus was on the Applicant to present compelling evidence to the removals officer. She did not do so. She did not present him with the new PRRA, nor with the only new evidence she had, the birth certificate. There is no obligation for the removals officer, as the Applicant suggests, to obtain the PRAA application from the CIC, another government department. The removals officer has a duty to consider all the documents before him. There is no duty to make further inquiries.
[23] In this case, the removals officer knew there was a second application. However, section 165 of the Immigration Regulations provides:
165. Subsequent Application - A person whose application for protection was rejected and who has remained in Canada since being given notification under section 160 may make another application. Written submissions, if any, must accompany the application. For greater certainty, the application does not result in a stay of the removal order.(Underlining added.)
[24] The Immigration Manual Chapter ENF10 entitled "Removals" in section 15.13 states:
15.13. Subsequent PRRA applications
A person who receives a negative PRRA decision and who remains in Canada since being given notification under R160 may make another application. The application and written submissions, if any must be forwarded to the PRRA Coordinator. If the subsequent application is directly submitted to the removal officer, it must be forwarded to the attention of the regional PRRA Coordinator. Pursuant to R165, a subsequent application does not result in a stay of removal and removal arrangements can proceed. In limited cases, exceptional circumstances may warrant deferral of removal pending a subsequent PRRA decision. In these cases, the officer conducting the removal should consult their supervisor or manager on whether the removal should be deferred. The decision to defer will be left entirely to the discretion of the removal unit.
[25] In this case, the new PRRA application had not been provided to the removals officer. No evidence was presented that would give him reason to consider this a limited case where exceptional circumstances may warrant a deferral. He had to assume that the key evidence for the second PRRA application was the medical report. However, s. 97(1)(b)(iv) of the Immigration and Refugee Protection Act expressly excludes from risk assessment any risk "caused by the inability of that country to provide adequate health or medical care".
[26] I see no requirement based on either Wang, supra, or s. 15.13 of the Immigration Manual warranting a deferral of removal. The decision of the removals officer was not patently unreasonable. Accordingly, this application cannot succeed.
ORDER
THIS COURT ORDERS that this application be dismissed.
"K. von Finckenstein"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4542-04
STYLE OF CAUSE: Maza Hailu v. Solicitor General
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: Wednesday, February 9, 2005
REASONS FOR ORDER: THE HONOURABLE MR. JUSTICE VON FINCKENSTEIN
DATED: February 14, 2005
APPEARANCES:
Odaro Omonuwa FOR THE APPLICANT
Sharlene Telles-Langdon FOR THE RESPONDENT
SOLICITORS OF RECORD:
Odaro Omonuwa
Winnipeg, Manitoba FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT
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