Date: 20100311
Docket: IMM-1335-09
Citation: 2010 FC 274
Ottawa, Ontario, March 11, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
GARY WILLIAMS
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
Canada may order the
removal of persons who have breached the Immigration and Refugee
Protection Act, R.S.C. 2001, c. 27. In keeping
with our international obligations, the Act provides numerous avenues
such persons may explore and engage to ensure that they are not placed at risk
if removed to their country of origin.
[2]
Subject
to the limited appeal provisions in the Act, once a removal order has been
issued, the question is not whether the person will be removed from Canada, but when
the removal will occur. Section 48(2) of the Act provides that the foreign
national against whom the removal order is made “must leave Canada immediately”
(emphasis added). Sometimes life gets in the way of things; sometimes leaving Canada immediately
is not possible, sometimes it is not practical, and sometimes it is simply
inhumane. Accordingly, Parliament provided some limited discretion as to the
timing of the removal by providing that the removal order is to be “enforced as
soon as reasonably practicable” (emphasis added). The enforcement
officer may briefly delay or defer the person’s removal from Canada, either on
his own motion or at the request of the person affected.
[3]
Mr.
Williams was ordered to be removed from Canada to his
country of origin,
Jamaica. He was to
be removed on March 25, 2009. His request that his removal be deferred was
denied. For the reasons that follow, in the unique circumstances at hand, this
application is allowed.
Background
[4]
The
decision under review was made on March 16, 2009. It is a decision of an enforcement
officer refusing the applicant’s request for a deferral of his removal from
Canada pending his application for permanent residence from within Canada based on
humanitarian and compassionate grounds (the H&C application). Following
the refusal, applicant filed further evidence and submissions seeking a
re-consideration of that decision. Another officer denied the request for
reconsideration on March 17, 2009. The reconsideration decision is not the
subject of this or any application for review and the evidence relating to it
cannot be considered when reviewing the decision under review as it was not
before that officer.
[5]
Mr.
Williams was born in Kingston, Jamaica, on May 23, 1965;
he is currently 44 years of age. He entered Canada illegally in
1994 and remained underground until he came to the attention of the Canadian
immigration authorities in August of 2006.
[6]
On
December 4, 1994, he married his first wife, Audrey Anna Locke, in Toronto. It appears
from the record that she had a daughter from a previous relationship. Together,
Mr. Williams and Ms. Locke had two sons, Chavell, born in 1996 and Rashawn,
born in 1998. Chavell suffers from asthma and has a number of allergies,
including allergies to peanuts and eggs. It was not pointed out to the
enforcement officer that Chavell also has some developmental delays and is
schooled in a special education class.
[7]
Mr.
Williams' first wife owned a restaurant business in Toronto called The
Jerk Spot. When his wife was alive, Mr. Williams was an “advisor” to the
business. Tragically, Mr. Williams’ wife died suddenly on July 28, 2006,
leaving him to care for their children.
[8]
Shortly
after her death Mr. Williams was arrested by the Toronto Police and charged
with a number of offences related to the use or possession of fraudulent credit
cards. The Toronto Police alerted the immigration authorities and Mr. Williams
was detained on August 16, 2006. An inadmissibility report was issued pursuant
to section 44(1) of the Act. The applicant was later released on a $5000 bond
posted by the sister of his deceased wife.
[9]
On
October 10, 2006, Mr. Williams was removal ready and was provided with a
Pre-Removal Risk Application (PRRA). He waived his right to a PRRA but he was
not removed due to the pending criminal charges which were not disposed of
until September 24, 2008.
[10]
The
officer’s notes from the October 10, 2006 meeting indicate that the applicant
told him that his wife had died on July 28, 2006, that he had custody of their
two children, that the three of them were living with his sister-in-law, that
his former wife’s business was “in trust to him” and was then being run by his
wife’s business partner, and that he would purchase his and his sons’ tickets
to Jamaica as he would be taking them with him.
[11]
In
December 2006, the applicant re-married. The pastor of his church had introduced
him to Charmaine, a single woman with three children then aged 17, 12 and 6.
He and his sons moved into the home owned by his new wife. On March 22, 2007,
she gave birth to their daughter, Alyse.
[12]
On
April 30, 2007, the applicant filed an H&C application. The notes of the
enforcement officer from 2009 reflected that although the application “included
his marriage certificate, Mr. Williams was not eligible to be part of the
Spousal Class, as he disclosed Criminal Convictions in the USA in 1994.” There
is nothing further in the record relating to these alleged offences.
[13]
On
September 24, 2008, he was tried in Toronto and convicted of use of
a credit card obtained by fraud, attempted fraud, and obstructing a peace
officer. He was given a conditional discharge, 60 hours of community service
and 12 months probation. In the request for deferral his counsel described the
circumstances that led to the criminal charges, implying that his role was minor.
In or about June 2006, Mr.
Williams was charged with credit card fraud because of his association with a
friend who used a false credit card at a Home Depot store. He was with him at
the time and was also charged with credit card fraud. Not having any legal
status in Canada he gave a false name to
police and was charged with attempted fraud and obstruct [sic] justice. Those
matters were disposed of on September 24, 2008 and Mr. Williams was given a
conditional discharge.
[14]
On
February 26, 2009, Mr. Williams attended a pre-removal interview. The
officer’s notes reflect that he informed the officer of his recent marriage,
the birth of his daughter, his wife’s children, and the fact that she was now pregnant
and was expecting to deliver their baby on July 13, 2009. He also informed the
officer that The Jerk Spot was now “owned by himself and current wife.” The
applicant informed the officer that he did not know if his two sons would be
travelling to Jamaica with him.
With respect to the business the notes indicate the following:
…[T]old PC that he could no
longer legally work in Canada; the PC said that he had never worked in Canada; I told him that he could not
be involved in his business.”
He also informed the officer that his
brother lived in Jamaica, his mother lived in Hartfort,
Connecticut, and he had an aunt and a cousin in Montréal, Québec.
[15]
Although
no removal date had yet been set, the next day the applicant filed a request
for the deferral of his removal. On March 3, 2009, he was served with a
Direction to Report which indicated that his removal would occur on March 25,
2009.
[16]
In
his request for deferral, Mr. Williams discloses the history outlined above. In
addition, he notes that his wife is six months pregnant and “her health is
challenging as she has been experiencing heart problems.” He informs the
authorities that he has requested a medical note to show that this is a
concern. The bases for the request for deferral were the following:
(i)
The
long outstanding H&C application (then outstanding for 22 months) which, it
was submitted had not been processed due to a backlog in the system.
(ii)
The
best interests of the children and his family dynamics. It was pointed out
that there were now six children involved, two were his sole responsibility
from his previous marriage, one was his joint responsibility with his wife, and
another was to be born in three months. With respect to his two sons, his
counsel wrote: “…[H]e feels that it would be a dereliction of his duty to leave
them here in Canada with his
second wife who would have the burden of managing her health issue and a baby.”
(iii)
The
loss of the business, The Jerk Spot, which it was said employed four persons
and which was the source of income and financial support for the family of
eight (soon to be nine). His counsel wrote in the deferral request: “There is
not one iota of doubt that deporting Mr. Williams to Jamaica, and having
his wife and family here in Canada with the young baby and her questionable
health would severely impact the survivability of the business.”
[17]
Subsequently,
the medical note was provided by the applicant. It reads as follows:
Mrs. Williams has been
attending this clinic since March 26, 2007. She is currently pregnant and her
due date is July 13, 2009.
It would be greatly
appreciated if her husband Gary Williams D.O.B. 23/05/1965 is allowed to stay
in Canada to help her with her current
pregnancy and childbirth, as she has no other close relatives in this country.
She has 4 of her children and
two of his children to look after as well and will definitely need as much help
as she can get from her husband during the pregnancy and at delivery.
Mrs. Williams is under
investigation by Dr. F. Jeejeebhoy for an episode of arterial fibrillation and
syncope. An MRI of the heart was ordered by Dr. Jeejeebhoy and this will be
postponed due to the pregnancy.
She is under a lot of stress
due to her husband’s pending deportation. It would be appreciated if a stay of
deportation is allowed for her husband until all her issues are resolved.
[18]
On
March 16, 2009, the enforcement officer denied the request for deferral. The
officer’s notes reflect that he considered each of the three bases advanced by
the applicant.
[19]
With
respect to the medical condition of his wife, the officer infers that as the
MRI has been postponed, her medical condition it is not urgent or severe enough
to warrant immediate investigation. The officer notes that as a Canadian
citizen, Mrs. Williams is not required to travel to Jamaica and she has health
care and social programs available to her in Canada. He notes
that “insufficient evidence has been presented to demonstrate that Mrs.
Williams is either unwilling or unable to avail herself of any programs which
may be able to assist her during this period of transition.”
[20]
With
respect to the outstanding H&C application the officer notes that it was
received in Vegreville on April 30, 2007, and was transferred to Mississauga on November
30, 2007 for processing. He writes that “insufficient evidence has been
presented to demonstrate that a decision on Mr. Williams’ H&C or Spousal
application is imminent at this time.” He further concludes that he is not
satisfied that the application was submitted in a timely manner. He reviews
the applicant’s history in Canada and the fact that upon waiving a PRRA on
October 10, 2006, his removal order became enforceable but that he was unable
to be removed due to the pending criminal charges.
[21]
The
officer considers the best interests of the children and writes:
Mr. Williams may chose [sic]
to bring his sons aged 11 and 13 with him to Jamaica as he had previously indicated to Off.
P. Watson during his interview on 10 October 2006 that this was an option he
was considering. If he chooses to remain in Canada, I am satisfied they may remain in the
care of their step-mother, or another designate. I note that during his
interview on 10 October 2006, Mr. Williams indicated that he and his children
were staying with his sister-in-law and her son, both of whom were
Canadian citizens. I further note that during his interview on 26 February
2009, Mr. Williams stated that he has family in Canada, as well as his mother in the USA. In regards to Mr. Williams’ adopted
children as well as his 2 year old daughter, I am satisfied that if they remain
in Canada they will do so under the care of their mother and will have the
physical and emotional support necessary to adjust to their new circumstances.
(emphasis added)
[22]
The
officer also considered the applicant’s business. He writes:
... insufficient evidence has
been presented to demonstrate that Mr. Williams is, in fact, the owner of the
business in question. No documents were presented with the request to defer
which speak to the legitimacy of this claim. However, assuming that Mr.
Williams is the owner of the business in question, insufficient evidence has
been presented to demonstrate that Mr. Williams has made any efforts to find an
alternative arrangement for the management of the business in the event of his
removal from Canada. I note that during his
interview on 10 October 2006, Mr. Williams stated that he acted as an “advisor”
to the business until his late wife’s death and that it was now “in trust” to
him. He further stated to Off. Watson that the restaurant was being run by his
late wife’s business partner Makis Arthur. Insufficient evidence has been
presented to demonstrate whether Makis Arthur is still involved with the
business, however insufficient evidence has been presented to demonstrate that
Mr. Williams could not similarly place the restaurant in trust to another
individual, possibly Makis Arthur, or that he could not hire one of his current
employees to manage the business in his absence.
[23]
On
March 23, 2009, I granted a stay of removal pending the final disposition of
this application for leave and judicial review. Information was provided to
the Court with that motion going to the issue of irreparable harm that was not
provided to the enforcement officer with the request to defer and which may
have been of assistance to the officer. That information, and the basis for
the stay being granted is set out in the endorsement, which reads as follows:
1. The Court is not
impressed by some of the conduct of Mr. Williams since arriving in this
country. In particular his surreptitious arrival in 1994 and the fact that he
lived “underground” until he came to the attention of the immigration
authorities as a result of being charged, and later convicted of credit card
fraud and obstructing a police officer. However, it appears that he was given
a conditional discharge and served the sentence – 60 hours of community service
and 12 months probation.
2.
One cannot
help but be moved by the circumstances of his family. He married in 1994 and
has two sons of that marriage, born in 1996 and 1998. The oldest is mentally
delayed and suffers from serious allergies. His wife died suddenly in mid
2006. Through his Church he met and married his current spouse. She has three
children from an earlier relationship. They are now aged 17, 11 and 6. The
oldest has sickle cell anaemia and has periodic episodes that require
hospitalization. The applicant and his spouse have one child of their marriage
who was born in March 2007 and they are expecting their second child in July of
this year. His current wife suffers from fainting spells, which cannot be
diagnosed until after the birth, and has a heart murmur that is treated by
aspirin. Her condition prevents her from working.
3.
Mr.
Williams operates a restaurant in Toronto
which he apparently inherited from his deceased wife. He has four employees
and asserts that as it is a cash business, he or his spouse must be on site.
4.
Mr.
Williams has an H&C application that has been outstanding for 15 [sic]
months.
5.
The
enforcement officer considered and, in my mind, relied on information from an
interview that Mr. Williams had with immigration authorities in October 2006.
In particular, the officer references that in 2006, Mr. Williams said that if
he was removed to Jamaica, he may chose to bring his
two sons with him and that he and his children were living with his
sister-in-law and her husband [sic]. What the officer does not mention
in this regard is that this interview was given before Mr. Williams married his
current spouse and that his circumstances have changed considerably since
then. I am of the view that there is a serious issue raised as to the
procedural fairness afforded Mr. Williams by the officer referring to and
relying upon this dated information. I am further of the view that there is a
serious issue raised in that the officer finds that there is insufficient
evidence that Mr. Williams owns “The Jerk Spot”. Again, the officer relies on
the dated 2006 information and noted that Mr. Williams then said that the
restaurant was “in trust” to him. No doubt because its owner, his former wife,
had died. His entire analysis of the ability of Mr. Williams to place this
restaurant in the hands of some third party for the financial support of his
family is extremely questionable and, in my mind, unlikely to meet the
reasonableness standard set out by the Supreme Court in Dunsmuir, even
given the deference the officer’s decision is due.
6.
This is
one of those rare instances where the harm occasioned by the removal of one
parent is irreparable harm within the Toth test. The harm is the
probable dissolution of the business, and the impact on the children and spouse
at a time when many are in need of the applicant’s emotional and physical
support, in addition to his financial support. Additionally, while his
criminal record is of his own making, it will probably result in him not being
readmitted to Canada and reunited with his family
should the application for judicial review of the refusal to defer be
successful.
7.
The
balance of convenience tips in favour of the applicant in these very
extraordinary circumstances.
8.
The Court
wishes to express to Mr. Williams that it expects him to remain honest and
upstanding and to provide financial support to his extended family. But for his
family’s exceptional circumstances which rise to the level of irreparable harm,
the serious issues raised in the officer’s decision would not have kept him in Canada in light of his previous
history.
Issues
[24]
The
applicant raises the following issues:
1. Whether the enforcement officer’s decision to refuse
the applicant’s deferral of removal request was reasonable?
2. Whether special circumstances exist to warrant the
award of costs either on a partial or substantial indemnity basis?
[25]
At
the commencement of the hearing I informed the parties that I was satisfied
that there was nothing in the record that would warrant an award of costs. This Court’s stay decision did not render the
applicant’s success in this application a certainty and there was no
dereliction of duty or bad faith in the respondent pursuing the application to
judicial review on the merits of the case. Accordingly, this
application proceeded to be heard on its merits. The sole issue before the
Court is whether the decision not to defer removal was reasonable.
Analysis
[26]
The
applicant submits that the serious issues described by this Court in its stay
order are substantive flaws with the decision that render it unreasonable. The
applicant also submits that the officer erred in determining that his H&C
application was not filed in a timely manner, and that the officer erred in
focusing on the imminence of a decision on the outstanding H&C application
rather than on the length of time that had passed since it was filed. The
applicant contends that the officer’s speculation regarding the severity of Mrs.
Williams’ medical condition was unreasonable and that he failed to adequately
consider the impact of the applicant’s removal on his family, and the fact that
removal would cause them irreparable harm.
[27]
The respondent submits that the
only question before this Court is whether the officer “exercised his
discretion and performed his duty in accordance with the law when declining to
defer the Applicant’s removal.” The respondent says that the officer had only
a very narrow discretion to defer removal, and that the officer exercised this
discretion reasonably. The respondent also contends that the applicant’s lack
of clean hands supported the refusal to defer removal. The respondent submits
that an outstanding H&C application does not necessarily form the basis for
a deferral request, that the diminished procedural fairness obligations on
removals officers were met in this case, that the officer’s referral to
previous statements was legitimate, and that any error was not material to the
result. The respondent relies on this Court’s decision in Chetaru v. Canada
(Minister of Public Safety and Emergency
Preparedness), 2009 FC 436, for the proposition
that an enforcement officer is not required to conduct a preliminary H&C
assessment; the respondent submits that the officer’s assessment of the
family’s interests were adequate in the circumstances.
[28]
As
earlier noted, the fact that the applicant’s motion for a stay of removal was
granted in this case by me does not lead directly to the conclusion that the
application for review of that decision will also be granted by me.
[29]
This
is so because a motion for a stay of removal and a judicial review of a refusal
to defer removal are different proceedings. The conclusion that serious issues
exist on the tri-partite test described in Toth v. Canada (Minister
of Employment and Immigration), (1988) 86 N.R. 302 (F.C.A.), even given
the higher threshold set out in Wang v. Canada (Minister of Citizenship and
Immigration), [2001] 3 F.C. 682 (T.D.) of “likelihood of success”, does not
lead directly to the conclusion that these issues are reviewable issues once
examined with the benefit of a complete record. Likewise, the conclusion that
the applicant faces irreparable harm under the tri-partite test does not lead
directly to the conclusion that he also faces a risk of death, extreme sanction or inhumane
treatment if a deferral of removal is not granted.
[30]
This
case is an excellent illustration that an applicant who fails to provide a full
and complete record in support of a deferral request does so at his own peril.
There was evidence that could have been placed before the enforcement officer
but it was not. We will never know whether that information would have changed
the outcome. It was submitted only later with the reconsideration request and
stay motion. Before turning to examine the challenges the applicant advances
to the decision under review, I wish to make a few comments on the basis for
deferral requests and the role of this Court when those decisions are
challenged.
[31]
Section
48(2) of the Act obligates enforcement officers to enforce valid removal orders
“as soon as is reasonably practicable”. Section 48 has been interpreted to
grant officers only a very limited discretion to consider requests to defer
removal: Baron v. Canada (Minister of Public Safety and Emergency
Preparedness), 2009 FCA 81; Simoes v. Canada (Minister of
Citizenship and Immigration) (2000), 187 F.T.R. 219 (T.D.); and Wang,
supra. In Wang, at para. 48, Pelletier J. (as he then was), held
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.
[32]
On
my reading of the decisions in Baron, Wang and Simoes the situations
where an officer may be called upon to defer removal will fall within one three
categories.
[33]
The
first category involves situations where there are factors directly related to
the travel arrangements required to remove the person. In this category are
factors such as the cancellation of a scheduled flight, the sudden illness of
the traveller, and the unavailability of required escorts. In cases such as
these there will be little judgment or discretion required by the officer; it is
likely that in these cases it will be obvious that the travel arrangements have
to be changed and removal postponed to a later date.
[34]
The
second category involves situations where there are factors that are not
related to the travel arrangements but that are directly impacted by them. In
this category are factors such as the impact on a child’s school year where a
child is being removed, the impact on a Canadian business where the person
being removed operates a business, a pending birth or a death. In these cases,
the deferral will be temporary in order to address or ameliorate the impact of
the removal. The removal will be deferred to enable the child to finish the
school year or to graduate, to enable the person to wind up or sell his
business, to give birth to a child or to attend at the birth of a child, or to
attend at a funeral. In some instances the relevant factor will have to relate
directly to the person being removed. For example, if that person is a student
it may be that a deferral to permit him or her to complete the school year is
appropriate. That basis for deferral is less likely to be germane if the
student is a child of the person subject to the removal order and the child
will be remaining in Canada. In that case, absent special
circumstances, the removal of the parent is not likely to have a material impact
on the child’s education. In other situations the relevant factor may not need
to be one personal to the person being removed; it may be sufficient if it
relates to an immediate family member or dependant. For example, the death of
the spouse (who was to remain in Canada) of a person being removed may warrant
a deferral in order that he can bury his spouse, make arrangement for the care
of the children, or make arrangements for the disposition of the estate. On
the other hand, if the person subject to the removal order has been estranged
from his recently deceased former spouse and she has been more recently in a
common-law relationship with another, it may be that a deferral is not
justified. Accordingly, deferral in situations falling within this category
will require judgment or discretion being exercised by the officer.
[35]
The
third category involves situations where there is a process under the Act which
could lead to landing and therefore could result in the removal order becoming
invalid or unenforceable and where the failure to defer will expose the person to the risk of “death,
extreme sanction or inhumane treatment” [Wang at para. 48]. In those
situations there is no alternative remedy available to ameliorate the
impact on the applicant if the removal order becomes invalid as a result of
that collateral process. Under this category fall deferral requests because of
a pending H&C application. I concur with Justice Pelletier in Wang,
at para. 45, 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). In such cases the applicant generally
has a right to return if the H&C application is granted.
[36]
One
of the “special considerations” noted on occasion by this Court which may
warrant deferral in the face of an H&C application is where the H&C
application was brought on a timely basis but it has not been determined due to
a backlog in the system: Simoes at para. 12. I can find no analysis or
discussion of the rationale for this proposition. In my view, the rationale
likely flows from the fact that it is a situation where the Minister has two competing
statutory duties which are both at play. The Minister has a duty to remove
those in breach of the Act and the Minister also has a duty to process
applications for landing under the Act. The duty in both cases includes a duty
to act promptly. Where the Minister has failed in his duty to promptly process
an H&C application, then this should be a relevant consideration when determining
when it is “reasonably practicable” to remove that applicant. Where an H&C
application was filed promptly and the only reason why it has not been
determined lies in the hands of the Minister, then the Minister should not be allowed
to rigorously enforce his duty of removal when he has been delinquent in his
duty to process applications that may make the removal unnecessary or invalid.
[37]
The
difficulty for the Court, and for enforcement officers, is that there is rarely
any evidence of the time that is likely to be required before the H&C
determination is made. The department’s web site informs applicants that first
stage approval of an H&C application currently takes 5 to 6 months. It
cautions applicants:
Not all cases receive “first stage of
approval” at CPC Vegreville. Some files may be transferred to a local CIC
office. This may add further delays to the overall processing time.
The department’s web site does not provide
information to the public as to the average processing time that is taken to
reach a final decision on an H&C application. It would seem to me that
such information must be available within the department and it would be
helpful to applicants and enforcement officers if it were made available. Last
fall the Minister of Citizenship and Immigration indicated to Parliament that
the processing time for an H&C application was 18 months. It is not
clear whether the Minister meant this as an average processing time or the
expected processing time.
[38]
When
an officer, following Wang, examines the “special considerations” that
are involved in an outstanding H&C application this does not require the
officer to address the merits of the H&C
application, or as it has sometimes been
put, to conduct a mini H&C analysis: Chetaru, supra. Rather, it is
the officer’s responsibility to consider the circumstances related to the
H&C application and its potential impact on the removal order. In short,
the officer is required to ask (1) was the H&C application submitted in a
timely fashion, and (2) is a backlog on the part of the department the reason
why the H&C application has not yet been determined. It is only if the
answer to both questions is “yes” that the officer should turn his mind to whether
a deferral is warranted. In so doing, the officer will consider a number of
factors, including, the conduct of the applicant such as whether he or she has
observed the Act’s requirements or acted in a manner that subverts the
provisions of the Act, whether there are other reasons advanced for the
deferral which warrant consideration, and the period of deferral that is being
sought or is likely to result. This is not to suggest that the officer is involved
in a process that requires a dialogue with the applicant. The officer is
merely required to consider the relevant factors present in the circumstances before
him.
[39]
In
this respect, I do not share the view expressed by Justice Pelletier in Wang,
at para. 49, that an applicant’s criminality and the fact that he may not be
re-admitted to Canada following a successful H&C application is not a
relevant consideration for the enforcement officer. Just as the applicant’s
criminality is a relevant factor that weighs against a deferral, in my view, it
is also a relevant factor in circumstances where there are issues of future
family reunification in Canada.
[40]
Undoubtedly,
the applicant’s criminality will be a consideration for the officer making the
H&C determination. That officer will be balancing that consideration
against those that are favourable to the applicant being permitted to file his
application inland. The enforcement officer is not required to conduct that
sort of analysis. Nonetheless, there may be circumstances, and the present
case is an example of one, where the possibility that the applicant because of
his criminality will not be permitted to re-enter Canada and be reunited with
his family, ought to be given some consideration when faced with an H&C
application that has been outstanding for some time.
[41]
I
now turn to the matters the applicant raises regarding the decision under
review.
[42]
In
my view, the officer’s conclusion with respect to the outstanding H&C
application was reasonable. The applicant cites Simmons v. Canada (Minister of Public Safety
and Emergency Preparedness), 2006 FC 1123, at para. 8, for the proposition
that officers should consider “whether the application had been filed in a
timely manner and whether the reason there was no decision was a backlog in the
system” rather than focusing on the imminence of a potential decision. In my
opinion, this is the approach that the officer took in this case. The officer
concluded that the applicant did not file his H&C application in a timely
manner because he lived underground in Canada for more than 10 years before
making his application, only made the application after he came to the
attention of immigration authorities as a result of criminal charges that he
was facing, and made it six months after he waived a PRRA. The officer noted
when the application was filed, and also that it had been transferred to a
local CIC Office for further processing. The officer did not discuss whether
the delay in processing the application was based on backlog within CIC, and
instead focused on whether a decision was imminent. In this case, the H&C
application had been outstanding for 22 months at the time the officer rendered
his decision. I agree with the applicant that this can create a reviewable error;
however, in this case it does not. When the decision is read as a whole,
taking into consideration the officer’s reasonable conclusion regarding the
timeliness of the applicant’s H&C application, it was open to the officer
not to exercise his discretion to grant a deferral of removal on the basis of
the outstanding H&C application.
[43]
I
also find that the officer’s conclusion with respect to the applicant’s wife’s
medical condition was not unreasonable. The onus was on the applicant to put
forward his strongest case in support of a deferral of removal: John v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 420. The applicant provided little
explanation of his wife’s medical condition, its severity, or the reason why
diagnosis had to be deferred until after the pregnancy. The officer did not
have before him the explanation that was put before me on the stay motion that
this delay was because the diagnostic tests were potentially dangerous to the
unborn fetus. This left the officer to speculate that the medical condition
was not “urgent or severe.” It would have been preferable had the officer not opined
on a subject for which he had no training or expertise. Nevertheless, unless
the applicant explains why his wife’s medical condition warrants a deferral of
removal, it is reasonable for an officer to conclude that the medical condition
is not one requiring urgent attention.
[44]
One
might argue that the officer erred in focusing on the applicant’s wife’s heart
issue and not on her pregnancy; indeed, the pending birth may well have been a
stronger consideration. The Court of Appeal in Baron, at para. 51,
approved the observation in Wang that a pending birth may be a valid
reason for deferral. In this case the officer notes that the applicant’s wife
is expecting in three months time and that she has 5 other children for whom she
and her husband care, but he fails to set out his thoughts on whether this fact
alone warrants a deferral.
[45]
The
officer cannot be faulted for focusing on Mrs. Williams’ heart issue and not on
her pregnancy as the applicant did the same in his request for deferral.
Further, he did not make additional representations when he submitted the
medical note the next day even though it stressed her pregnancy in saying: “She
has 4 of her children and two of his children to look after as well and will
definitely need as much help as she can get from her husband during the
pregnancy and at delivery” (emphasis added).
[46]
The
applicant requested a deferral until the H&C application had been
determined. He may have been better advised to seek a deferral until after the
baby was born or until after his wife’s heart issue was diagnosed. This should
be a lesson to applicants. If there are stronger reasons supporting a shorter
term deferral, that is what ought to be sought.
[47]
The
aspect of the officer’s decision that troubled me when I granted the stay is
the officer’s reliance on dated information in the department’s file regarding
the applicant. Specifically, the following are of concern, especially as the
officer wrote that “I have fully considered the impact that removal will
have upon Mr. Williams’ family and six children” (emphasis added).
[48]
First,
he writes that Mr. Williams may choose to bring his sons with him to Jamaica as he
previously indicated “during his interview on 10 October 2006 that this was an
option he was considering.” This previous indication was made only a few
months after his spouse and the mother of these two boys had died and at a time
when he had sole custody of the boys. The officer then writes that if Mr.
Williams chooses to have his sons remain in Canada, “I am
satisfied they may remain in the care of their step-mother, or another
designate.” There was no evidence before the officer that the step-mother
would be prepared to care for these boys if their father was absent. The
officer’s assumption might be unobjectionable in a more usual situation but one
must question its validity in the present circumstances. Mrs. Williams then
had 4 of her own children to care for, another on the way, and heart issues
that were unresolved. Mr. Williams might never be permitted to return to Canada and if he did
not return then Mrs. Williams would be the care-giver of these boys for many
years to come, given their ages. In such circumstances, the accuracy of the
officer’s assumption must be questioned.
[49]
Turning
to the other “designate” whom the officer mentions, these the officer says
includes Mr. Williams’ sister-in-law and her son, those with whom Mr. Williams’
and his sons resided after his wife’s death. It should be pointed out that
there is no mention in the department’s notes of his sister-in-law having any
children; rather they reflect that in 2006 he was living with his sister-in-law
and the oldest daughter of his first wife. Regardless, the officer sets out and
relies upon the situation as it was in 2006 – some two and one-half years
earlier in quite different circumstances. The officer assumes that these
persons continue to reside in Toronto, that their personal
circumstances have remained the same, and that they are prepared to take in
these boys, perhaps forever, when they now have a step-mother who was not in
the picture in 2006. The other possible designate the officer mentions is Mr.
Williams’ “family in Canada” and “his mother in the USA.” The
family members in Canada, as disclosed in the notes of the February 10, 2009
meeting, are an aunt and cousin of Mr. Williams who were living in Montreal. The
officer knows nothing of the circumstances of any of these family members. In
my view, the officer’s conclusion that any of these could provide care for
these two boys is mere speculation.
[50]
Second,
the officer concludes, based on the 2006 interview notes, that Mr. Williams
could place the business in trust to another, just as it had been placed in
trust to him in 2006. What the notes from the 2006 interview indicate is that
the business had been owned by his now deceased wife, that Mr. Williams had
been an advisor to her business, that it was then in trust to him and that it
was then being run by the deceased wife’s “business partner” Makis Arthur.
[51]
When
the information provided in 2006 is viewed in the context of his wife’s recent
death, it is probable that the business was in trust to Mr. Williams as the
heir to his wife’s estate. If so, suggesting that Mr. Williams in 2009 could
“similarly place the business in trust to another individual” makes no sense.
[52]
In
most situations, relying on dated information from an applicant in the
immigration file will be of little or no consequence. However, where it is
known that there have been material changes since that earlier information was
provided, such as is the case here, it is unfair and unreasonable to rely on earlier
information without first checking with the applicant to determine whether it
remains valid.
[53]
The
duty of fairness in the context of a deferral request is low; nonetheless, it has
been held that even on a low standard, it is contrary to the duty of fairness
to render a decision relying on extrinsic evidence on a material point that was
not provided by the applicant: Level (Litigation Guardian of) v. Canada
(Minister of Public Safety and Emergency Preparedness), 2008 FC 227.
[54]
The
evidence relied on in this case by the officer was not extrinsic evidence; the
evidence relied upon came from notes made of statements previously given by the
applicant. However, in my view, the same analysis applies where the evidence
relied upon has not been recently confirmed by the applicant and there have
been significant events in the interim which would cause a reasonable person to
ask whether they remain accurate.
[55]
In
this case, it is not clear to me that the officer had to rely on the statements
made by the applicant in 2006 to render a decision on the deferral request;
nonetheless, the officer did so. For that reason, the decision must be set
aside.
[56]
When
a decision such as this has been set aside, it is usual for the Court to refer
the application back to be decided by a different officer. In this instance,
such an order is inappropriate because the baby that was expected has now been
born, presumably Mrs. Williams’ heart issues have been resolved, the business
situation may have changed, and it is now almost three years since the H&C
application was filed – more than twice the processing time indicated by the
Minister.
[57]
Accordingly,
I shall not order that the request for deferral be redetermined.
[58]
Mr.
Williams should be under no delusion that he may now stay in Canada permanently.
The respondent may issue him another Direction to Report and he may well find
himself again subject to imminent removal from Canada. If he has
not already done so, he should organize his affairs so that his family and business
will not be placed in jeopardy if he is returned to Jamaica because,
given his criminal past, he may never be permitted to return to his family in Canada.
[59]
Neither
party proposed a question for certification and in my view there is none.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
This application for judicial review is allowed and the decision of the
enforcement officer dated March 16, 2009 refusing the request for deferral of removal
is set aside;
2.
If the respondent issues the applicant with a Direction to Report and
the applicant seeks a deferral of that removal, the deferral request is to be
considered by an officer who was not involved in the decision under review or
the reconsideration of that decision;
3. No
costs are awarded; and
4. No
question is certified.
“Russel
W. Zinn”
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