Benitez v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1307

Date: 20011128

Docket: IMM-4953-00

Neutral citation: 2001 FCT 1307

BETWEEN:

LEONARDO BORIS GONZALEZ BENITEZ

Applicant

-and-

THE MINISTER OF CITIZENSHIP & IMMIGRATION

Respondent

                                                            REASONS FOR ORDER

McKEOWN J.

Introduction:

[1]                 The applicant seeks judicial review of the decision of a removals officer, dated September 11, 2000, wherein the officer decided not to defer the removal of the applicant pending the determination of his humanitarian and compassionate application, made pursuant to section 114 of the Immigration Act, R.S.C. 1985, c. I-2 (the Act), to be allowed to make his application for landing from within Canada.

[2]                 The issues are: Did the removals officer fetter his discretion by requiring the applicant to demonstrate "exceptional circumstances" for the warranting of deferral?; Did the removals officer fetter his discretion and compromise the principle of fairness by failing to consider that the applicant had a legitimate expectation that the merits of his humanitarian and compassionate application would be considered in determining the issue of deferring his removal?; and Did the removals officer breach the principles of fairness by conducting the interview of the applicant with a lack of sensitivity and attentiveness to the applicant's psychological problems?

Facts:

[3]                 The applicant's refugee claim was refused on November 30, 1999. The applicant then applied for a PDRCC assessment and the applicant's counsel filed an H & C application.

[4]                 On July 31, 2000, the applicant attended at the Greater Toronto Enforcement Centre (GTEC) and was told that his PDRCC had been refused. At this interview, the Officer agreed to receive further submissions and documents on risk. The August 21, 2000 decision found that the applicant would not be at risk on return to Uruguay.

[5]                 On August 31, 2000, the applicant learned of the negative PDRCC decision and received a letter informing him to appear for removal arrangements on September 11, 2000.

[6]                 On September 11, 2000, the applicant reported to the GTEC. The applicant's counsel asked the removals officer to defer the applicant's removal pending the determination of the applicant's H & C application and because the removal would be psychologically devastating to the applicant and his partner.

[7]                 The removals officer indicated that he would only grant a deferral in "exceptional circumstances". In the result, the officer decided not to defer removal and subsequently gave reasons, including the following statements:

·              Counsel brought 3 psychological reports to my attention. I read all three and was given the impression that the removal would [be] emotionally upsetting for the client and his partner. One report stated that the removal could potentially result in suicide. I asked the client and his partner if they would contemplate suicide if the removal took place. Both of them, and their Counsel as well, answered with a definite "NO."

·             In this case there is simply not enough here to defer removal. The H & C is immature and the emotional trauma of removal is an expected result in most cases when the execution of a removal order takes place. The H & C will continue to be processed and if it is determined that this is a bona fide common-law relationship, then the client will be able to return to Canada and be processed for landing.

·            As such, this removal is to proceed.

[8]                 On September 19, 2000, Madame Justice Hansen granted a stay in this matter pending final determination of this judicial review.

Analysis:

[9]                 Section 48 of the Act states:

[10]            Counsel for the applicant submits that the removals officer's statement that he would only defer removal in "exceptional circumstances" unnecessarily fettered his discretion. Both counsel agreed with Justice Pelletier's summary of the split on this Court with respect to the scope of the discretion of a removals officer, as outlined in his decision in Wang v. Minister of Citizenship and Immigration, 2001 FCT 148 (T.D.). In that decision, Pelletier J. undertook an extensive analysis of the logical parameters of the scope of a removal officer's discretion under section 48 of the Act. He then went on to consider the question at hand, i.e. What is the legal scope of this discretion? At paragraphs 43 to 45, Pelletier J. stated:

... The grant of discretion found in section 48 of the Act may not contemplate that deferral is appropriate whenever it could logically make a difference. In fact, the imperative terms of section 48 of the Act suggest otherwise. Furthermore, there is a line of authority to the effect that the mere presence of an outstanding H & C claim, is not grounds for a stay of execution (and by extension, for a deferral). Finally, defining the discretion to defer too broadly risks creating the equivalent of a statutory stay where Parliament declined to do so. What limits are imposed upon the range of available options by the expression "as soon as reasonably practicable"?

Obviously, there is a range of factors arising from the mechanics of making travel arrangements which will require the exercise of some judgment and discretion. The vagaries of airline schedules, the uncertainties related to the issuance of travel documents, medical conditions affecting the ability to travel, these are all factors which could result in removal being rescheduled. Beyond that are factors outside the narrow compass of travel arrangements but which are affected by those arrangements such as children's school years, pending births or deaths. These too could influence the timing of removal. These arise even on the narrowest reading of section 48 of the Act.

The order whose deferral is in issue is a mandatory order which the Minister is bound by law to execute. The exercise of deferral requires justification for failing to obey a positive obligation imposed by statute. That justification must be found in the statute or in some other legal obligation imposed on the Minister which is of sufficient importance to relieve the Minister from compliance with section 48 of the Act. In considering the duty imposed and duty to comply with section 48, the availability of an alternate remedy, such as a right of return, should weigh heavily in the balance against deferral since it points to a means by which the applicant can be made whole without the necessity of non-compliance with a statutory obligation. For that reason, I would be inclined to the view that, absent special considerations, an H & C application which is not based upon a threat to personal safety would not justify deferral because there is a remedy other than failing to comply with a positive statutory obligation.

[11]            The applicant's position is that Wang, supra was wrongly decided and that this Court should instead follow the decision in the case of Prassad v. Canada (Minister of Employment & Immigration), [1989] 1 S.C.R. 560 (S.C.C.), wherein the Supreme Court of Canada held that adjudicators have a broad discretion to adjourn an inquiry to permit an application for humanitarian relief to be considered. That case, of course, involved statutory provisions that no longer exist and decided the issue of the scope of discretion granted to an adjudicator under those previous provisions, and not the issue of the scope of discretion granted to a removals officer by the present Immigration Act, R.S.C. 1985, c. I-2, as amended. It should be noted that the previous system involved the applicant making an H & C application first, and removal occurred at the end of the process with the same adjudicator overseeing the entire process. Even at that time, this Court was split as to the scope of discretion to stay a deportation that the statute granted to the adjudicator.

[12]            In Prassad, supra, Mr. Justice Sopinka held that an adjudicator is not required to stay his or her inquiry based on the possibility that an applicant may be inhibited from pursuing an alternative remedy by the continuation of that inquiry. That is, the Court refused to read in an automatic stay of proceedings based on an applicant's application for an alternative remedy. At 575, Sopinka J. for the majority wrote:

In the present case the application to the Minister under s. 37(1) is not an integral part of the proceedings before the adjudicator under s. 27(3) [page576] but a remedy that is clearly separate from that proceeding. The mere fact that there is an alternative remedy open to the appellant does not convert it into an automatic concomitant right to have other proceedings adjourned to accommodate the application. Nothing in s. 37 suggests that an application under that section is to be treated any differently than an application for other remedies which, as I have discussed, have not been accorded the recognition of an automatic stay.

[13]            The Court also held, however, that an adjudicator had a broad discretion to stay an inquiry (and thereby stay removal of the applicant) pending the consideration of an applicant's application for a Minister's permit, pursuant to section 37 of the Immigration Act, S.C. 1976-77, c, 52, as amended. Writing for the majority, Sopinka J. stated at 578:

I conclude that an adjudicator acting pursuant to s. 27(3) of the Act is neither bound to accede to a request for an adjournment to enable an application under s. 37 to be brought, nor is he or she required to refuse it. Rather the adjudicator has a discretion. In some circumstances, an adjournment may well be granted to enable such an application; in other circumstances, it may properly be refused. While the adjudicator must be cognizant that a "full and proper inquiry" be held, the adjudicator must also ensure that the statutory duty to hold an inquiry is fulfilled. As Wydrzynski, op. cit., notes at p. 266:

Above all, there is a need to proceed expeditiously, and adjournments should not be viewed as a method to interminably delay the inquiry.

The adjudicator might consider such factors as the number of adjournments already granted and the length of time for which an adjournment is sought in exercising his or her discretion to adjourn. Where an adjournment is requested in order that an application under s. 37 might be pursued, the adjudicator might also consider the opportunity available to the subject of the inquiry to apply to the Minister prior to the request for an adjournment. [emphasis added]

[14]            Counsel also raises another case dealing with the previous Immigration removals régime. In Nesha v. MEI, [1982] 1 F.C. 42 (T.D.), Smith D.J. held that it is reasonable to infer that the power of the Minister of [Employment & ] Immigration should not be destroyed by an adjudicator issuing a deportation order while an application for special relief is pending. Similarly, counsel submits that the Minister's authority to grant an H & C application should not be hindered by the removals officer carrying out a deportation order before the Minister's delegate has had the opportunity to review the applicant's H & C application. However, as indicated, Nesha, supra was decided under different legislative provisions than are in force today, and in addition, Nesha, supra was a sympathetic case on the facts which may have influenced the trial judge's determination.

[15]            The applicant's counsel also relies upon the case of Naredo v. MCI, [2000] F.C.J. 1250 (T.D.), wherein the Court granted a stay to permit an H & C application to be made because the applicant was a former secret policeman who faced torture and death at the hands of his former colleagues upon his return to Chile. However, the facts in Naredo, supra are very different from those before me and I do not take this decision as establishing a general discretion by which removals officers may stay deportation pending the determination of an H & C application.

[16]            In my view Wang, supra was correctly decided and the submissions of the applicant amount to calling for a full H & C application to be heard by a removals officer. This is not what section 48 of the current Immigration Act provides. Dubé J. in Maharaj v. MCI, 2001 FCT 509, held that the discretion of a removals officer under the current Immigration Act is very limited. Dubé J. wrote at paragraphs 4-5:

A removal officer's jurisdiction under section 48 of the Act is to execute removal orders "as soon as reasonably practicable". The removal officer has some discretion to defer the execution of a removal but cannot be expected to act as a last minute humanitarian and compassionate assessment tribunal. There is jurisprudence in this Court to the effect that the discretion of a removal officer is very limited and that he may consider various factors such as illness, other impediments to travelling, and pending H & C applications that were brought on a timely basis.

In the instant case, under the circumstances, there is no indication that the refusal of the removal officer to defer the departure of the applicant was not reasonable. This Court has on numerous occasions emphasized that persons who failed to allege a risk at earlier appropriate junctures cannot expect the removal officer to set aside his travelling arrangements so as to conduct a quick risk assessment before executing the duty imposed upon him by the Act. In my view, a removal officer may only entertain such an application where the alleged risk is obvious, very serious and could not have been raised earlier. Such is not the case here.

[17]            Pelletier J. made reference to Naredo, supra in his decision in Davis v. MCI, [2000] F.C.J. No. 1628 (T.D.) involving a stay application made by a person who was found to be a danger to the public and was convicted of various serious offences following the issuing of a deportation order against him. In that case, Pelletier J. stated at paragraph 4:

In reference to the serious issue to be tried, it is my view that some of the issues raised would be serious issues were they raised before an adjudicator or designated officer deciding an application under subsection 114(2) of the Act. I do not believe that they are serious issues a Removals officer is called upon to decide. I adopt the reasons of Mr. Justice Nadon in Simoes v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 936 which I will not repeat here. I would add to them to this extent. The Immigration Act and the jurisprudence of this Court have established a series of checkpoints at which various interests are assessed and weighed. At the conclusion of that process is the removal process itself. In my view, it was not the intention of Parliament in providing that removal be effected as soon as reasonable [sic] practicable to put upon the Removals officer the obligation to consider all of the factors which are to be raised and considered in the steps preceding removal. It is not necessary for these purposes to determine the limits of the Removals officer discretion, other than to say that only once has it been held to include the necessity of deferral to permit an H & C application to be made. In Naredo v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. 1250, a stay was granted to permit an H & C application to be made because the applicant was a former secret policeman who faced torture and death at the hands of his former colleagues upon his return to Chile. That fact is absent here. [emphasis added]

[18]            I do not agree with counsel for the applicant's submission that the discretion granted to a removals officer under the present Immigration Act is as broad as that which had once been granted to an immigration adjudicator by subsection 27(3) and related provisions of the Immigration Act, 1976, S.C. 1976-77, c. 52, as amended. As such, the decisions in Prassad, supra and Nesha, supra have little bearing upon the case before me.

[19]            In essence, the submissions of the applicant's counsel do not properly construe the system as set out in the present Immigration Act, i.e. the proper place for the full consideration of all of an applicant's H & C factors is before the H & C Officer, not the removals officer. In my view, the removals officer is entitled to rely on what the applicant's counsel determines to be the overriding factor warranting deferral. As such, counsel must be very selective about what he or she chooses to point out to a removals officer. I reiterate that the current Act does not give a removals officer the discretion to consider various H & C factors in determining whether or not to defer removal of the applicant from Canada.

[20]            Counsel for the applicant also submitted that the Supreme Court of Canada's decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 applies in the context of the present matter in that an applicant must be given full participatory rights. As such, argues counsel, the applicant has a legitimate expectation that he will be made aware of the standards which he or she will be expected to meet. In the present case, the removals officer indicated that he would grant deferral of removal only in "exceptional circumstances", however he did not articulate what types of circumstances would be considered by him to be "exceptional", thereby warranting a deferral of removal. Counsel submits that the applicant was thereby deprived of his full participatory rights, i.e. since the applicant did not know what standard he was expected to meet, he could not properly present his case for deferral to the removals officer.

[21]            Mr. Justice Pelletier stated at paragraphs 45 of Wang, supra that:

In considering the duty imposed and duty to comply with section 48, the availability of an alternate remedy, such as a right of return, should weigh heavily in the balance against deferral since it points to a means by which the applicant can be made whole without the necessity of non-compliance with a statutory obligation. For that reason, I would be inclined to the view that, absent special considerations, an H & C application which is not based upon a threat to personal safety would not justify deferral because there is a remedy other than failing to comply with a positive statutory obligation. [emphasis added]

Therefore, the removals officer did not err in failing to precisely state what might constitute "exceptional circumstances" in light of the fact that Mr. Justice Pelletier used a similar term ("special considerations") to describe situations in which a removals officer would be entitled to exercise his or her discretion to defer removal of a person in respect of whom a deportation order had been issued. In my view, the doctrine of legitimate expectation does not override the very limited statutory discretion that the statute makes available to a removals officer. It seems obvious that possible suicidal tendencies should be given consideration by the Officer, and that was done in the present case. As such, the Officer fulfilled his duty as per the discretion afforded him by the statute.

[22]            The applicant's counsel also submits that the removals officer acted with insensitivity when interviewing the applicant, making a "flippant" remark regarding the possibility that the applicant, and perhaps his partner, would commit suicide if the removal was not stayed. Counsel alleges that the officer's remarks demonstrate that he did not treat the applicant with impartiality and that he minimized the importance of the psychological reports provided by the applicant. Counsel for the respondent agrees that the possibility that the applicant might commit suicide is an important issue for the consideration by the removals officer. In my view, the finding of the officer was open to him based on the fact that the report completed in July of 1999 by the most qualified person, Psychologist Dr. Pilowski, stated that the applicant felt happy and safe in Canada, that he suffered from occasional nightmares and a fear of being deported, and that the applicant "[a]t present... does not fit the criteria for a diagnosis of a mental disorder". Dr. Pilowski's report does not mention any possibility of suicide. Dr. Pritchard, M.D., does mention that possibility in her letter, dated July 26, 2000, wherein she stated:

Should Leonardo in fact be deported, I would fear for [his and his partner's] mental health. Both would be subject to a protracted major depression which carries with it the potential risk of suicide.

[23]            In addition, Sociologist and Counsellor D. Rzondnzinski's report dated July 27, 2000, mentioned that the applicant's persecution in Uruguay had led him to alcoholism and to "fantasize about suicide". This report details a severe detrimental change in the applicant's, and his partner's, mental health once they were notified of the impending removal of the applicant from Canada. It was open to the officer to prefer the report of the most qualified person, Dr. Pilowski.

[24]            The respondent's counsel submits that indeed the officer did ask the applicant whether or not he was intending to commit suicide. Counsel refers to the transcript of the cross-examination of the officer, wherein he made various statements with regard to his handling of the issue of suicide:

At page 29, line 10, he stated: What I recall is that [sic] reading the psychological reports and the word "suicide" jumped out at me and I asked about it.

[25]            At page 31, lines 8 to 22, the following exchange took place between the applicant's counsel and the Officer:

Q. Okay. If you had someone in front of you who was suicidal, don't you think that's kind of an inappropriate way to put the question? Like, isn't there any other way you could have been a little more -

A. Well-

Q. - attuned to the situation, perhaps a little more sensitive to it?

A. Well, the client is telling me that this is an issue for them and it's not something which I can ignore. I have to address the issue.

Q. Yes.

A. I can certainly understand that the client does not know me and they might feel uncomfortable discussing something this personal with me, but it's not something which I can ignore. I have to deal with it.

[26]            Then, at page 33, line 22 to page 34, line 1, the Officer stated:

I was not making light of the situation. This was a situation and I had to address the issue that was put on the table by the client. And I think I handled it in a professional and appropriate manner.

[27]            The Officer's testimony on cross-examination indicates that he took the three psychological reports into consideration and there is no reason to believe that he demonstrated partiality in coming to his decision not to defer the applicant's removal.

[28]            For the above reasons, the application for judicial review is dismissed.

[29]            The following question is certified:

What is the scope and/or nature of the discretion of a removals officer in considering a request by a person under a valid removal order for deferral of removal in relation to an outstanding humanitarian and compassionate application?

"W.P. McKeown"

                                                                                                       JUDGE

TORONTO, ONTARIO

November 28, 2001

                          FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

COURT NO:                                                           IMM-4953-00

STYLE OF CAUSE:                                                LEONARDO BORIS GONZALEZ BENITEZ

Applicant

-and-                                                         

THE MINISTER OF CITIZENSHIP &

IMMIGRATION

Respondent

DATE OF HEARING:                                             THURSDAY, JUNE 28, 2001

PLACE OF HEARING:                              TORONTO, ONTARIO

REASONS FOR ORDER BY:                                 McKEOWN J.

DATED:                                                                 WEDNESDAY, NOVEMBER 28, 2001

APPEARANCES:                                                  Ms. Barbara Jackman

For the Applicant

Mr. Donald A. MacIntosh

                                                   For the Respondent

SOLICITORS OF RECORD:                              JACKMAN, WALDMAN & ASSOCIATES

Barristers & Solicitors

281 Eglinton Avenue East

Toronto, Ontario

M4P 1L3

For the Applicant

Morris Rosenberg

Deputy Attorney General of Canada          

For the Respondent

FEDERAL COURT OF CANADA

Date: 20011128

                                                              Docket: IMM-4953-00

Between:

LEONARDO BORIS GONZALEZ BENITEZ

Applicant

-and-

THE MINISTER OF CITIZENSHIP &

IMMIGRATION

Respondent

REASONS FOR ORDER