Date: 20100422
Docket: IMM-4496-09
Citation: 2010 FC 437
Ottawa, Ontario, April 22,
2010
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
ALLI YUSSUF KHAMIS
AND INDAH MARWATI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
In
Baron v. Canada (Minister of Public Safety and Emergency
Preparedness), 2009 FCA 81, 387 N.R. 278, Justice Marc Nadon
summarized the law regarding deferrals of removal:
[51] … After a careful and thorough review of the relevant
statutory provisions and jurisprudence pertaining thereto, Mr. Justice
Pelletier circumscribed the boundaries of an enforcement officer’s discretion
to defer. In Reasons which I find myself unable to improve, he made the
following points:
− There are a range of factors that can validly
influence the timing of removal on even the narrowest reading of section 48,
such as those factors related to making effective travel arrangements and other
factors affected by those arrangements, such as children’s school years and
pending births or deaths.
− The Minister is bound by law to execute a
valid removal order and, consequently, any deferral policy should reflect this
imperative of the Act. In considering the duty to comply with section 48,
the availability of an alternate remedy, such as a right to return, should be
given great consideration because it is a remedy other than failing to comply
with a positive statutory obligation. In instances where applicants are
successful in their H&C applications, they can be made whole by
readmission.
− In order to respect the policy of the Act
which imposes a positive obligation on the Minister, while allowing for some
discretion with respect to the timing of a removal, deferral should be reserved
for those applications where failure to defer will expose the applicant to the
risk of death, extreme sanction or inhumane treatment. With respect to H&C
applications, absent special considerations, such applications will not justify
deferral unless based upon a threat to personal safety.
− Cases where the only harm suffered by the
applicant will be family hardship can be remedied by readmitting the person to
the country following the successful conclusion of the pending application.
…
[80] By virtue of section 48(2) of the Immigration and
Refugee Protection Act, R.S.C. 2001, c. 29 (IRPA), once a “removal order
is enforceable, the foreign national against whom it was made must leave Canada
immediately and it must be enforced as soon as is reasonably practicable.”
I agree with my colleague that jurisprudence is conclusive that the enforcement
officer’s discretion is limited. However, ultimately an enforcement officer is
intended to do nothing more than enforce a removal order. While enforcement
officers are granted the discretion to fix new removal dates, they are not
intended to defer removal to an indeterminate date. On the facts before us, the
date of the decision on the H&C application was unknown and unlikely to be
imminent, and thus, the enforcement officer was being asked to delay removal
indeterminately. An indeterminate deferral was simply not within the
enforcement officer’s powers…
[81] Over the years, the duties of enforcement officers have
not changed, and yet, the bases upon which applicants rely to obtain deferrals
have dramatically increased. I am of the view that the scope of the enforcement
officer’s discretion cannot be changed by virtue of the requests made. An
enforcement officer’s role is not to assess the best interests of the children
or the probability of success of any application. An enforcement officer’s role
should remain limited and deferral should be contemplated in very limited
circumstances.
[82] The legislation has not, to my knowledge, provided a new
step to claimants who desire yet another assessment of their circumstances. Claimants
already have the refugee application process, the pre-removal risk assessment
(PRRA) process and the H&C application in addition to judicial reviews of
those processes and the stay before removal.
[83] In this case, it appears that the claimants want to open
yet another avenue of review by asking the enforcement officer to reassess
information that has already been examined by administrative tribunals and that
was the subject of judicial review. For the enforcement officer to comply with
this request for reassessment would be akin to the enforcement officer making a
quasi-judicial order without the benefit of hearing from opposing counsel. It’s
time to stop this abusive cycle.
[2]
In respect to the matter of the possibility of insufficient
reasons which the Court itself considered:
[23] As noted by Mr.
Justice Pinard in Gaoat, above at paragraphs 10-11, the rule in Marine
Atlantic applies where the reasons given may be insufficient. The applicant
is required to request further reasons before he can complain in Court that
they are inadequate: see also Hayama v. Canada (Minister of Citizenship and
Immigration),
2003 FC 1305, [2003] F.C.J. No. 1642.
(Tran v. Canada (Minister of Public
Safety and Emergency Preparedness), 2009 FC 1078, [2009] F.C.J. No. 1332 (QL)).
II. Judicial Procedure
[3]
This
is an application for judicial review pursuant to section 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of a
removals officer refusing the Applicants’ request to defer their removal until
the determination of their humanitarian and compassionate grounds (H&C)
application.
III. Background
[4]
Mr.
Alli Yussuf Khamis is a citizen of Tanzania who came to Canada from the United
States
on March 1, 2001 and made a refugee claim. Ms. Indah Marwati is a citizen of
Indonesia who came to Canada from the United States on June 5,
2001 and made a refugee claim. In 2002, both Applicants had their separate
refugee claims rejected.
[5]
While
in Canada, the
Applicants began a romantic relationship. Their first child, Sameer, was born
on February 17, 2003 and they were married on November 13, 2003.
[6]
On
November 19, 2004 the Applicants filed a joint H&C application. This
application was rejected on May 17, 2006. The Applicants sought judicial review
of the rejection and received a stay of removal while their application for
leave and for judicial review was determined. Although leave was granted on
January 5, 2007, the judicial review was dismissed on April 3, 2007. The
Applicants submitted a new H&C application on May 7, 2007. On May 13, 2007
the Citizenship and Immigration Canada (CIC) office in Edmonton entered the
H&C application into its queue and estimated that it will be assessed in
July 2010.
[7]
On
August 4, 2009 counsel for the Applicants requested deferral of removal until
the determination of the H&C application. This request was denied on August
11, 2009.
[8]
On
August 24, 2009 the Applicants made a second request for deferral of removal.
This request was denied two days later and forms the basis of this application.
IV. Decision under Review
[9]
The
removals officer declined to consider the Applicants’ H&C submissions when
determining whether to defer removal on the grounds that she lacked the
jurisdiction to do so. The removals officer stated that the Applicants’ H&C
application would be assessed by CIC “in due course” and held that the
existence of an H&C application does not outweigh her duty to enforce valid
removal orders as soon as is reasonably practicable.
[10]
The
officer also advised the Applicants regarding the procedure for including their
children in their travel arrangements (Applicants’ Record (AR) at p. 6).
V. Issues
[11]
(1)
Did the removals officer err by failing to defer the Applicants’ removal date
until after the determination of their H&C application?
(2) Did the
removals officer err by inadequately consider the best interests of the
Applicants’ Canadian children?
VI. Relevant Legislative Provisions
[12]
Removals
officers must comply with section 48 of the IRPA:
|
Enforceable removal order
48. (1) A removal order is enforceable
if it has come into force and is not stayed.
Effect
(2) If a removal order is enforceable,
the foreign national against whom it was made must leave Canada immediately and it must be enforced as
soon as is reasonably practicable.
|
Mesure de renvoi
48. (1) La mesure de renvoi est
exécutoire depuis sa prise d’effet dès lors qu’elle ne fait pas l’objet d’un
sursis.
Conséquence
(2) L’étranger visé par la
mesure de renvoi exécutoire doit immédiatement quitter le territoire du
Canada, la mesure devant être appliquée dès que les circonstances le
permettent.
|
VII. Positions of the Parties
Applicant’s Position
[13]
The
Applicants submit that section 48 gives a removals officer discretion to decide
when a removal order will be enforced (Applicants’ Reply at para. 2). If a
long-standing H&C application has not been determined due to backlogs,
then, the Applicants contend, a removals officer may use this as a basis to
exercise her discretion to defer removal (AR at p. 76). The Applicants also
submit the deferral requested is for a specific purpose and to a specific time,
when the outstanding H&C application will be determined (Applicants’
Written Submissions at p. 78).
[14]
The
Applicants accept that the fact that an outstanding H&C application exists
does not, on its own, constitute grounds for the deferral of a removal order;
however, the Applicants submit this case presents two factors which warrant a
deferral. First, the H&C application has been outstanding since May 2007.
The Applicants do not contend that the removals officer ought to have
substantively considered the merits of their H&C application, but instead
submit that the evidence of the length of time it has been outstanding is
relevant to the determination of a removal date. Second, the case of Wang v.
Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 682, 2001
FCT 148 held that an outstanding H&C application which contains allegations
of risk to personal safety, as the Applicants contends, may be sufficient as a
ground for deferral of removal until after that application has been considered
(AR at p. 79).
[15]
The
Applicants summarize their position by stating “the removals officer in the
case at bar erred in failing to consider whether deferral was warranted pending
a decision on the Applicants’ long outstanding H&C application”
(Applicants’ Reply at para. 12).
[16]
With
respect to the second issue, the Applicants acknowledge that a removals officer
is not required to undertake a full substantive analysis of the best interests
of the children as performed at the stage of H&C. The Applicants instead
cite the case of Munar v. Canada (Minister of Citizenship and Immigration),
[2005]
F.C.J. No. 1448 (QL),
[2006] 2
F.C.R. 664
for the proposition that the best interests of the child should be seen as a
continuum with a complete examination being required at the stage of H&C
and a less thorough analysis being required when making other determinations,
such as whether to defer a removal (AR at p. 80). The Applicants also cite Munar,
above, for the proposition that a removals officer ought to consider the
short-term best interests of the child (AR at p. 81).
[17]
The
Applicants submit the removals officer erred because she made no findings with
respect to the impact of a removal on the children. The Applicants contend that
the removals officer needed to make a determination as to what the children’s
best interests were, and then determine whether they were outweighed by other
considerations. The Applicants also cite the case of Kolosovs v. Canada (Minister of
Citizenship and Immigration), 2008 FC 165, 323 F.T.R. 181 and contend
that a removals officer must be “alert, alive and sensitive” to the best
interests of the child (AR at p. 82).
Respondent’s Position
[18]
The
Respondent submits that section 48 obliges removals officers to effect removal
“as soon as reasonably practicable”; therefore, an officer’s discretion to
defer removal is very limited and should only be used when exceptional
circumstances such as those relating to travel arrangements, personal safety or
health are present (Memorandum of Argument of the Respondent at para. 31).
[19]
The
Respondent submits that jurisprudence has established that the existence of a
second H&C application is, in and of itself, not a bar to removal and has
no effect on the enforceability of the removal order (Memorandum of Argument of
the Respondent at para. 37).
[20]
The
Respondent submits the officer considered the Applicants’ request for deferral
and reasonably found no compelling basis to exercise her discretion (Memorandum
of Argument of the Respondent at para. 39).
[21]
With
respect to the second issue, the Respondent submits removals officers are not
required to consider the ultimate impact of removal of the Applicants on their
children. Instead, the Respondent contends the officer is only under a duty to
consider whether the children will be cared for when the parents are removed or
whether there is an impediment to their travel with their parents, should they so
choose (Memorandum of Argument of the Respondent at para. 41).
VIII. Standard of Review
[22]
In
the case of Baron, above, the Federal Court of Appeal held that an
officer’s decision refusing deferral is reviewable on the standard of
reasonableness (Baron at para. 25).
[23]
In
the case of Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 the Supreme Court of Canada held that the standard of reasonableness
is “concerned mostly with the existence of justification, transparency and
intelligibility with the decision-making process. But it is also concerned with
whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.”
IX. Analysis
Did the removals officer err by failing
to defer the Applicants’ removal date until after the determination of their
H&C application?
[24]
The
case of Baron, above, makes it clear that section 48 of the IRPA gives
very limited discretion to officers to defer removal orders (Baron at
para. 49). The existence of an H&C application, in and of itself, does not
constitute grounds for deferral of a valid removal order (Baron at para.
50).
[25]
In
Baron, above, Justice Nadon summarized the law regarding deferrals of removal:
[51] … After a careful and thorough review of the relevant
statutory provisions and jurisprudence pertaining thereto, Mr. Justice
Pelletier circumscribed the boundaries of an enforcement officer’s discretion
to defer. In Reasons which I find myself unable to improve, he made the
following points:
− There are a range of factors that can validly
influence the timing of removal on even the narrowest reading of section 48,
such as those factors related to making effective travel arrangements and other
factors affected by those arrangements, such as children’s school years and
pending births or deaths.
− The Minister is bound by law to execute a
valid removal order and, consequently, any deferral policy should reflect this
imperative of the Act. In considering the duty to comply with section 48,
the availability of an alternate remedy, such as a right to return, should be
given great consideration because it is a remedy other than failing to comply
with a positive statutory obligation. In instances where applicants are
successful in their H&C applications, they can be made whole by
readmission.
− In order to respect the policy of the Act
which imposes a positive obligation on the Minister, while allowing for some
discretion with respect to the timing of a removal, deferral should be reserved
for those applications where failure to defer will expose the applicant to the
risk of death, extreme sanction or inhumane treatment. With respect to H&C
applications, absent special considerations, such applications will not justify
deferral unless based upon a threat to personal safety.
− Cases where the only harm suffered by the
applicant will be family hardship can be remedied by readmitting the person to
the country following the successful conclusion of the pending application.
[26]
As
is stated above, the Applicants submit that the removals officer erred by
failing to consider their outstanding H&C application when she denied
deferral (Applicants’ Reply at para. 13). The Court concludes that the officer
was reasonable in not considering the substance of the Applicants’ H&C
materials, as the jurisprudence is clear that removals officers should not
perform a “pre-H&C” analysis which overlaps with the jurisdiction provided
by section 25 of the IRPA.
[27]
In
making this submission, the Applicants seek to distinguish Baron, above.
The Applicants contend that this case involves a long-standing H&C
application, whereas Baron, above, involved a last-minute request for
deferral after a sudden H&C application had been made.
[28]
It
is apparent that the removals officer was aware of the outstanding H&C
application and made the following finding: “[t]he existence of an H&C
application does not outweigh my statutory duty under Subsection 48(2) of the Immigration
and Refugee Protection Act to enforce the applicants’ removal orders as
soon as is reasonably practicable” (AR at p. 6). Although the removals officer
was aware that an outstanding H&C application existed, it is important to
note Justice Nadon’s emphasized statement that H&C applications will not
justify deferral in the absence of “special considerations”.
[29]
The
Applicants submit the removals officer erred by failing to give consideration
to the evidence of the H&C application. The Court rejects this argument, as
it is clear from the decision that the removals officer was aware of the
outstanding H&C application and weighed that circumstance within the
jurisdiction of his/her legislative mandate.
Did the removals officer err by
inadequately considering the best interests of the Applicants’ Canadian
children?
[30]
The
question of how thoroughly a removals officer must consider the best interests
of the child was canvassed in Munar, above. Justice Yves de Montigny
held:
[40] This is obviously not the kind of assessment that the
removal officer is expected to undertake when deciding whether the enforcement
of the removal order is "reasonably practicable." What he should be
considering, however, are the short-term best interests of the child. For
example, it is certainly within the removal officer's discretion to defer
removal until a child has terminated his or her school year, if he or she is
going with his or her parent. Similarly, I cannot bring myself to the
conclusion that the removal officer should not satisfy himself that provisions
have been made for leaving a child in the care of others in Canada when parents are
to be removed. This is clearly within his mandate, if section 48 of the IRPA is
to be read consistently with the Convention on the Rights
of the Child. To make enquiries as to whether a child will be adequately
looked after does not amount to a fulsome H&C assessment and in no way
duplicates the role of the immigration officer who will eventually deal with
such an application (see Boniowski v. Canada (Minister of
Citizenship and Immigration) (2004), 44 Imm. L.R. (3d) 31
(F.C.)).
[41] In the present case, the two kids of the applicant are very
young, and nobody seems prepared to care for them besides their mother. Yet,
she cannot take them with her since her application for an order seeking sole
[page680] custody has not yet been dealt with. Therefore, I conclude that the
applicant has raised a serious question, even on the more probing standard
required in a case like this one, when claiming that the removal officer failed
to exercise her discretion appropriately and was not "alert, alive and sensitive"
to the childrens' best interests.
[31]
Several
aspects of the removals officers’ role are noted in the above two paragraphs.
It is clear that removals officers ought to examine the best interests of the
child when deciding whether to defer the removal of parents. In doing this, the
focus should not be on the children’s ultimate best interests, but instead on
their best interests in the short-term. In determining the short-term best
interests of the child, care is to be taken to ensure that the exercise
undertaken by the removals officer does not duplicate the analysis performed by
the immigration officer considering an H&C application. The examples given
by Justice de Montigny consist of deferral to enable completion of studies or
to ensure that adequate care has been arranged if children are not going to
accompany their parents. It is the Court’s conclusion that the question of
whether it is in the child’s ultimate best interests to remain in Canada with
his or her parents is a consideration to be analyzed at the stage of an H&C
application and cannot be part of a decision to defer.
X. Conclusion
[32]
The
case of Baron, above, makes it clear that an outstanding H&C
application does not constitute grounds for deferral in the absence of special
considerations. In this case, the fact that the application was made in a
timely manner does not constitute a special consideration in light of the
Applicants’ history in the immigration process and the fact that this is their second
H&C application.
[33]
It
is vitally important for this Court to orient itself chronologically when
reviewing decisions of this nature. In this case, it is important to remember
that the Court is reviewing a decision made in August 2009, not April 2010. Had
this decision been made last week, it may have been more reasonable to defer
removal for a few short months until the Applicants’ long-standing H&C
application was considered; however, at the time this decision was made the
Applicants were requesting a deferral of nearly a year which may have weighed
against their chances of receiving a deferral in the absence of truly
exceptional circumstances.
[34]
The
Court concludes that the decision of the removals officers is reasonable in
light of the limited jurisdiction afforded to the position.
JUDGMENT
THIS COURT
ORDERS that
1.
The application for judicial
review be dismissed;
2.
No serious question
of general importance be certified.
“Michel M.J. Shore”
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