Date: 20101201
Docket: IMM-1937-10
Citation: 2010 FC 1212
Ottawa, Ontario, December 1, 2010
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
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LIANA GURSHOMOV
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. INTRODUCTION
[1]
The
Applicant is an Israeli citizen living in Canada with her
three children. After what can only be considered an unmitigated administrative
error (in which she was induced to believe that her H&C application was
proceeding when in fact it had been denied), the Applicant was ordered to be
deported. Her deferral of removal request was denied. A stay was granted and
this is the judicial review of the refusal to defer.
II. BACKGROUND
[2]
The
Applicant entered Canada in late 2003 with her husband (the couple are
still married but separated) and their children. After their refugee claim was
denied, the Applicant’s husband filed an H&C application (1st
H&C) on May 28, 2004 which was based on his circumstances.
[3]
In
January 2008 the Applicant and her husband separated. As a consequence, the
Applicant filed her own H&C application (2nd H&C) on May 27,
2008.
[4]
As
matters turned out, the 2nd H&C was denied on February 5, 2009
and the 1st H&C, filed five years previously, was denied on
March 9, 2009. The 2nd H&C denial was given to the Applicant at
the same time as receiving her negative PRRA. She contends that she did not
appreciate that her H&C was denied and her subsequent conduct is consistent
with her contention.
[5]
On
April 7, 2009 the Applicant’s counsel checked the CIC website which indicated
that one H&C was pending. Counsel and the Applicant assumed that it was the
2nd H&C that was pending.
[6]
CIC
confirmed to counsel that the 2nd H&C was pending and that
additional fees were required. The Applicant paid the additional fees and made
further submissions on May 8, 2009. These further submissions were augmented by
additional submissions on May 28, 2009 and July 22, 2009, all in the belief
that the 2nd H&C had not been decided. This H&C addressed,
in part, the Applicant’s concerns for her and her children’s safety.
[7]
On
July 24, 2009, two days after the last set of submissions, the Applicant
requested deferral of any removal on the basis of the “pending” 2nd
H&C. That deferral request was granted by CIC on August 14, 2009.
[8]
It
was on March 25, 2010 that the Applicant became aware that the 2nd
H&C had been dismissed back in February 2009. The Applicant learned of the
circumstance because she had just been informed of her removal itinerary.
[9]
The
next day the Applicant filed a third H&C (3rd H&C)
application incorporating all of the materials filed in respect of the 2nd
H&C.
[10]
By
March 31, 2010 the Applicant was notified of the latest travel arrangements;
she immediately requested a deferral of removal which was denied.
[11]
In
the refusal to defer the Removals Officer noted that the 3rd H&C
decision was not imminent and that two earlier H&C decisions had been made.
[12]
The
Officer discounted any risk to the Applicant by virtue of a return to Israel where her
abusive husband now lived. The Officer’s attention with respect to the “best
interests of the children” was directed primarily at their ability to adjust to
a new locale. No attention was paid to the Ontario custody
order in favour entirely of the Applicant nor to the evidence, however weak it
may have been, that Israel would not respect the Ontario order.
III. ANALYSIS
[13]
The
overarching standard of review for deferral cases is reasonableness (Baron
v. Canada (Minister of
Public Safety and Emergency Preparedness), 2009 FCA 81). Issues
of procedural fairness are subject to the correctness standard. Finally, a best
interests of the children analysis is subject to the reasonableness standard of
review (Kolosovs v. Canada (Minister of
Citizenship and Immigration), 2008 FC 165).
[14]
The
pivotal point in this judicial review is the confusion surrounding the 2nd
H&C – a confusion caused by the Respondent and experienced by both parties.
[15]
The
Court is cognizant of the limited jurisdiction of a removals officer to address
the consequences of the 2nd H&C error. However, the status of an
H&C, and its timeliness, can be factors in a deferral decision.
… With respect to H&C applications,
absent special considerations, such applications will not justify deferral
unless based upon a threat to personal safety.
Baron, above, at para. 51.
[16]
In
only addressing the timing of the Applicant’s pending 3rd H&C
application, the Officer failed to address the substantive element – the reason
for what, on its face, is a late H&C. The real reason for the late H&C
application was the actions of another branch of the Canadian government which
led the Applicant to believe that her 2nd H&C was under active
consideration.
[17]
In
addition, the 2nd H&C raised issues of personal safety which had
never been addressed.
[18]
Therefore,
the Court concludes that this is one of those instances where the Removals
Officer failed to properly address a relevant consideration (see Simoes v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 936), thus constituting
an error of law and one where “special considerations”, as mentioned in Baron,
above, are present.
IV. CONCLUSION
[19]
This
judicial review is granted, and the decision not to defer is quashed. The
Applicant may file another deferral request if she deems it necessary.
[20]
There
is no question for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is granted, and
the decision not to defer is quashed. The Applicant may file another deferral
request if she deems it necessary.
“Michael
L. Phelan”
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