Date: 20040820
Docket: IMM-7113-03
Citation: 2004 FC 1161
Ottawa, Ontario, this 20th day of August, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
MARCOS DAVID BONIOWSKI and
SALOME CECILIA ABALLAY
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] This is an application for judicial review of a decision of an immigration enforcement officer (the "officer"), dated September 12, 2003. In that decision, the officer denied the applicants' request for deferral of their removal pending final disposition of their application for permanent residence from within Canada on humanitarian and compassionate grounds (the "H & C application"). The applicants seek an order setting aside the decision and an order of mandamus compelling the respondent to defer their removal until the final disposition of their H & C application.
BACKGROUND
[2] The applicants, husband and wife, are citizens of Argentina and in their mid-30s. They have a 6-year old Canadian-born daughter, Natalia. The applicants were trained as teachers in Argentina. They arrived in Canada in 1997 and claimed Convention refugee status seven months after their arrival, based upon their allegations of persecution by the Argentinian government due to their involvement in the teachers union and as human rights activists. Their refugee claims were denied in April 2002.
[3] The male applicant's parents and two siblings are Canadian citizens and reside in Canada. The applicants have worked since arriving in Canada and have been extensively involved in the community. Their daughter has begun primary school here and is close to her grandparents and cousins. The applicant has attested that it is his family's intention that he will take over his father's machine and welding business when he retires.
[4] The applicants first submitted their H & C application in October 2002. It was returned to them on two occasions, as it was missing information. They last resubmitted this application in March 2003 and a decision on this application remains outstanding to this date. The applicants' Pre-Removal Risk Assessment ("PRRA"), dated May 15, 2003 was negative.
[5] On June 30, 2003 the applicants attended a pre-removal interview with the officer, where they received their negative PRRA decision. The applicants met with the officer again on July 22, 2003 in order to set out travel arrangements and to ensure that their daughter had a passport. At this interview, the officer allowed the applicants time to permit their counsel to inquire about the status of their H & C application, provided that the applicants would acquire airline tickets for a departure no later than September 15, 2003.
[6] The applicants met with the officer on August 26, 2003. The officer decided to grant an interim deferral until September 30, 2003. On August 29th, the applicants' counsel requested a further deferral of removal, until their H & C application was decided. Counsel made the same request again on September 9th.
The Officer's Decision
[7] By letter dated September 12, 2003, the officer faxed the applicants her final decision stating that she had read all the material submitted by the applicants, including their August 29 submissions which set out the applicants' entire H & C application, however she would not further defer their removal scheduled for September 30, 2003. The officer's "Notes to File", attached to an affidavit filed by the respondent in this proceeding, dated September 12, 2003, set out the officer's reasons for decision. These notes contain the following remarks about the interests of the applicants' daughter:
I am satisfied that the client and his family have met with psychologist Nitza Perlman. I have reviewed this letter and Dr. Perlman's c.v. and it is clear that Dr. Perlman is in support of deferral for this family and Dr. Perlman also states that it is in the best interest of the client's daughter Natalia to stay in Canada in the care of her parents.
I am satisfied that Amnesty International published an article on the Rights of the Child in Argentina on 1Dec2002. I am satisfied that this article was available to the clients before they made their final submission for their pre-removal risk assessment and I am satisfied that they did not submit it for consideration.
...
[8] On September 25, 2003, Justice O'Reilly of this Court granted the applicants a stay of their removal order, pending the final disposition of this application for judicial review: Boniowski v. Canada (Minister of Citizenship and Immigration), 2003 FC 1101.
ISSUES
[9] 1. Did the officer breach the duty of fairness in providing the applicants with inadequate reasons for her decision?
2. Did the officer err in failing to consider the best interests of the applicants' Canadian child?
ANALYSIS
[10] The applicants argue that the officer's reasons for decision are inadequate and that this breaches the duty of fairness. They rely on Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[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.
[13] Secondly, the applicants submit that the officer's reasons for decision failed to indicate if she had turned her mind to the interests and concerns of their child, or how these interests were balanced and taken into account in reaching the final decision not to defer removal.
[14] The applicants refer to section 25(1) of IRPA which mandates that the best interests of children directly affected by an H & C decision must be considered by the reviewing H & C officer. The applicants also refer to the objectives of IRPA, ss. 3(d)- family reunification, and 3(I )- international justice. The applicants say that if enforcement officers considering whether to defer removal are not held to the obligation to consider children's interests in such a decision, then these other pronouncements in IRPA are illusory.
[15] The applicants submit that this Court has held on several occasions that a removals officer, in the exercise of her limited discretion to defer removal, must give sufficient consideration to the best interests of the child. The applicants rely on several decisions, amongst them Poyanipur v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1785 (T.D.)(QL), Melo v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 403 (T.D.)(QL), Paterson v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 139 (T.D.)(QL) and John v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 466 (T.D.)(QL).
[16] The respondent argues that the officer's notes for decision indicate that she considered the best interests of the applicants' child in making her decision not to defer removal. She was not required to undertake a lengthy and involved review of the factors involved in the H & C determination, given that this is not the officer's role: Thirunavukkarasu et al. v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1350 (F.C.)(QL) and Simoes v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 936 (T.D.)(QL).
[17] It is easy to have sympathy for the applicant's situation. Their H & C submissions indicate that they have been actively involved in the community as volunteers since arriving in Canada. They have upgraded their skills, have strong family ties here and have gained many friends and supporters in their community. They have steady employment records in this country and are proud not to have relied on social assistance. Despite all these positive factors, the applicants' immigration process has run its course, and I can find no error in the removal officer's decision. As stated in Simoes, supra, by Justice Nadon at paragraphs 11-12:
... In my opinion, Baker does not require a removal officer to undertake a substantive review of the children's best interests, including the fact that the children are Canadian. This is clearly within the mandate of an H & C officer. To "read in" such a mandate at the removals stage would, in effect, result in a "pre H & C" application, which in my opinion, is not what the law requires. Section 48 of the Immigration Act provides the following: "Subject to sections 49 and 50, a removal order should be executed as soon as reasonably practicable."...
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. Please see Paterson v. M.C.I., [2000] F.C.J. No. 139 (T.D.); Jmakina v. M.C.I., [1999] F.C.J. No. 1680; Poyanipur v. M.C.I., 116 F.T.R. 4. For instance, in this case, the removal of the Applicant scheduled for May 10, 2000 was deferred due to medical reasons, and was rescheduled for May 31, 2000. Furthermore, in my view, it was within the removal officer's discretion to defer removal until the Applicant's eight-year old child terminated her school year. ...
[18] I note that the provision in the former legislation dealt with in Simoes, supra, used similar wording to the current provision and included the wording that a removal order shall be enforced "as soon as reasonably practicable". Further, the Court in Simoes examined this provision in light of the Convention on the Rights of the Child, and found that while the best interests of children must remain an important consideration, it cannot preclude the enforcement of the law with regards to their parents, that is in the enforcement of a removal order requiring that the parents depart Canada.
[19] Further, there is no indication that the officer improperly fettered her discretion in making the decision not to defer removal, as was the case in Poyanipur, supra. The decision in John, supra, cited by the applicants, is similar to their situation, in that the Court granted a stay on the ground that there was a serious issue with regards to whether the officer who refused to defer removal considered the medical condition of the applicant's child. However, the underlying judicial review in that case was determined by Justice Snider, [2003] F.C.J. No. 583 (F.C.)(QL), where, relying on Simoes, supra, the Court dismissed the application for judicial review on the ground that a removals officer is under no requirement to undertake a substantive review of the best interests of an applicant's children, and must only do so to the minimal extent required in exercising his or her discretion on the timing of removal pursuant to section 48.
[20] In my view, an enforcement officer retains a flexible discretion and may take into account a variety of factors with regards to the timing of removal, including any problems associated with the removal of a child with their parents, or whether provisions have been made for leaving a child in the care of others in Canada when parents are to be removed. However, the purpose of the legislation is not to provide for a substantive review by removals officers of the humanitarian circumstances that are to be considered as part of an applicant's H & C application. I can find, therefore, no reason to interfere with the exercise of the officer's discretion in this case and the application will be dismissed.
[21] The parties requested time to consider whether to submit a serious question of general importance for my consideration. Accordingly, they shall have one week from the date of this decision to submit any proposed question and thereafter four days for any further submissions before the formal order is pronounced.
"Richard G. Mosley"
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-7113-03
STYLE OF CAUSE: MARCOS DAVID BONIOWSKI ET AL
V. THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 17, 2004
REASONS FOR ORDER
BY : The Honourable Mr. Justice Mosley
DATED: August 20, 2004
APPEARANCES:
Roger Rowe FOR THE APPLICANTS
Stephen Jarvis FOR THE RESPONDENT
SOLICITORS OF RECORD:
ROGER ROWE FOR THE APPLICANTS
Barrister & Solicitor
Toronto, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario
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