Date: 20100517
Docket: IMM-3557-09
Citation: 2010 FC 543
Ottawa, Ontario, May 17,
2010
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
JOSEPH
VILLANUEVA
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review
of the decision of an Enforcement Officer (Officer) at the Canada Border
Services Agency, dated July 14, 2009 (Decision), refusing the Applicant’s
application for deferral of the execution of the removal order issued against
him.
BACKGROUND
[2]
The
Applicant was born in the Philippines in 1982 and came to Canada with his mother in 1995 at the age of 12. He is
a permanent resident of Canada. The Applicant fathered
a son in Canada called Joaquin who resides with the child’s mother. The
Applicant was convicted in 2007 for drug trafficking and other offences under
the Controlled Drug and Substances Act, R.S.C. 1996, c. 19. As a result
of these convictions, he was sentenced to five years in jail. He was released
in 2008 on advanced parole.
[3]
As a
result of the conviction, a section 44 report was written citing the Applicant
for serious criminality. Upon his release from prison, the Applicant filed a section
25 Humanitarian and Compassionate (H&C) application.
[4]
A
deportation order was issued against the Applicant after a hearing was held
with regard to the allegations contained in the section 44 report. He filed an
appeal to the Immigration Appeal Division, but his appeal was dismissed for
lack of jurisdiction. The Applicant then filed a PRRA application which was
also rejected.
[5]
The
Applicant sought to defer his removal from Canada, but his request was refused. The
Applicant applied for judicial review of this decision. The Court granted a
stay until the application for leave and judicial review are decided.
DECISION UNDER REVIEW
[6]
The basis
for the Applicant’s application for deferral was his outstanding H&C
application, the outstanding IAD appeal of his removal order, and the best
interests of his mother and child.
[7]
The
Officer noted that an H&C application “in itself is not an impediment to
removal.” While the H&C application had been filed in April, 2008, the
Officer held that there was insufficient evidence before him to demonstrate
that a decision on the Applicant’s application was imminent. The Officer
contacted the Citizenship and Immigration Canada (CIC) office in Etobicoke with
regard to the application, and was advised that a decision on Mr. Villanueva’s
application was “not imminent.”
[8]
In
considering the Applicant’s appeal to the IAD, the Officer found that pursuant
to subsection 64(1) of the Act, there was no right of appeal where a foreign
national or permanent resident was found inadmissible on grounds including
serious criminality. According to subsection 64(2), serious criminality is
criminality that is punished by a term of imprisonment of at least two years.
The Applicant falls under this provision because he was convicted of four
offences and sentenced to five years and four months of imprisonment.
[9]
The
Officer then considered the best interests of the Applicant’s mother and child.
The Applicant had gained weekly supervised access to his son as of May, 2009. The
Applicant’s mother was diagnosed with breast cancer in July, 2008.
[10]
The
Officer noted that the Applicant had only recently gained visitation access to
his son, and that his son “will be able to remain in the care of his mother as
he did during the lengthy time Mr. Villanueva spent in detention.” As such, the
Officer was satisfied that the Applicant’s son would “have the physical and
emotional support necessary to adjust to his new circumstances.”
[11]
With
regard to the Applicant’s mother, the Officer considered that the Applicant
currently resides with his mother and his step-father. The Officer noted the
Applicant’s mother’s claim that the stress of her son’s pending removal often
makes her feel sick. However, the Officer determined that the Applicant’s
mother would “continue to have access to the health care services available to
Canadian citizens.” Although he acknowledged that feelings of separation and
anxiety are “unfortunate consequences of the removal order,” the Officer
determined that the Applicant’s mother would nevertheless be able to continue
to reside in Canada and depend
on her husband for care and support.
[12]
For
these reasons, the Officer refused to grant a deferral of the execution of
removal against the Applicant.
ISSUES
[13]
The
issues arising on this application can be summarized as follows:
1.
Whether
the Officer erred in failing to consider the Applicant’s argument that his H&C
application was filed in a timely manner;
2.
Whether
the Officer relied on extrinsic evidence without allowing the Applicant or
counsel to comment on it;
3.
Whether
the Officer breached procedural fairness in issuing reasons which were
inadequate.
STATUTORY PROVISIONS
[14]
The
following provisions of the Act are applicable in these proceedings:
|
Preparation of
report
44. (1) An officer who is of the opinion that a permanent resident
or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant
facts, which report shall be transmitted to the Minister
.
Referral or removal order
(2) If the Minister is of the opinion that the report is
well-founded, the Minister may refer the report to the Immigration Division
for an admissibility hearing, except in the case of a permanent resident who
is inadmissible solely on the grounds that they have failed to comply with
the residency obligation under section 28 and except, in the circumstances
prescribed by the regulations, in the case of a foreign national. In those
cases, the Minister may make a removal order.
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.
No appeal for
inadmissibility
64. (1)
No appeal may be made to the Immigration Appeal Division by a foreign
national or their sponsor or by a permanent resident if the foreign national
or permanent resident has been found to be inadmissible on grounds of
security, violating human or international rights, serious criminality or
organized criminality.
Serious criminality
(2)
For the purpose of subsection (1), serious criminality must be with respect
to a crime that was punished in Canada by a term of imprisonment of
at least two years.
|
Rapport
d’interdiction de territoire
44. (1) S’il estime que le résident permanent ou l’étranger
qui se trouve au Canada est interdit de territoire, l’agent peut établir un
rapport circonstancié, qu’il transmet au ministre.
Suivi
(2) S’il estime le rapport bien fondé, le ministre peut déférer
l’affaire à la Section de l’immigration pour enquête, sauf s’il s’agit d’un
résident permanent interdit de territoire pour le seul motif qu’il n’a pas
respecté l’obligation de résidence ou, dans les circonstances visées par les
règlements, d’un étranger; il peut alors prendre une mesure de renvoi.
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.
Restriction du droit
d’appel
64. (1) L’appel ne peut être interjeté par le résident
permanent ou l’étranger qui est interdit de territoire pour raison de
sécurité ou pour atteinte aux droits humains ou internationaux, grande
criminalité ou criminalité organisée, ni par dans le cas de l’étranger, son
répondant.
Grande criminalité
(2)
L’interdiction de territoire pour grande criminalité vise l’infraction punie
au Canada par un emprisonnement d’au moins deux ans.
|
STANDARD
OF REVIEW
[15]
The
Supreme Court of Canada in Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 held that a standard of review analysis need not be conducted in
every instance. Instead, where the standard of review applicable to the
particular question before the court is well-settled by past jurisprudence, the
reviewing court may adopt that standard of review. Only where this search
proves fruitless must the reviewing court undertake a consideration of the four
factors comprising the standard of review analysis.
[16]
Questions of
procedural fairness are to be reviewed on a standard of correctness. In this
instance all three issues, namely, whether the Officer erred in not providing adequate
reasons, whether the Officer relied on extrinsic evidence and deprived the
Applicant of an opportunity to respond, and whether the Officer erred in
failing to consider the Applicants’ legal argument with regard to his filing of
a timely application, are issues of procedural fairness. As such, they will be reviewed
on a standard of correctness. See Weekes
(Litigation Guardian) v. Canada (Minister of Citizenship and
Immigration), 2008 FC
293, 71 Imm. L.R. (3d) 4, Worthington v. Canada
(Minister of Citizenship and Immigration), 2008 FC 626, [2008] F.C.J. No. 879 at paragraphs 42-45, and
Dunsmuir, above.
ARGUMENTS
The Applicant
Timely Filing
[17]
Federal
Court and Federal Court of Appeal jurisprudence has recognized that a removal
officer’s discretion extends to an assessment of whether an Applicant’s H&C
application was filed in a timely manner and remains undecided because of
backlogs within the system: “[a] removal officer may consider various factors
such as illness, other impediments to travelling, and pending H&C
applications that were brought on a timely basis but have yet to be resolved
due to backlogs in the system.” See Simoes v. Canada (Minister of Citizenship
and Immigration),
187 F.T.R. 219, 2000 F.C.J. No. 936. This concept was recently approved by the
Federal Court of Appeal in Baron v. Canada (Minister of Public Safety
and Emergency Preparedness), 2009 FCA 81, [2009] F.C.J. No. 314.
[18]
In
the case at hand, the Applicant filed his H&C application at the first
available opportunity, even before the issuance of his removal order. The
Applicant’s H&C application had been with CIC for 15 months at the time of
the deferral request. Moreover, in requesting a deferral, the Applicant
explicitly asked the Officer to consider the timeliness of his H&C filing
as grounds for deferral.
[19]
In
both Baron and Simoes, above, the Court considered the timeliness
of an H&C application. It is clear that the Court in these cases was not
referring to whether a decision was imminent. Rather, the Court assessed the
timeliness of the application in the context of whether it was made simply to
delay removal, or whether it had been filed at the first available opportunity
and had simply not yet been decided because of backlogs in the system. The
jurisprudence suggests that a timely application may warrant deferral because
the Applicant cannot be blamed for backlogs in the system.
[20]
In
this case, the Officer failed to consider the issue of timeliness. The
Applicant submits that this constitutes a legal error.
Extrinsic
Evidence
[21]
Extrinsic
evidence is evidence of which an applicant is unaware because it comes from an
outside source: see Dansent v. Canada (Minister of Employment and Immigration),
[1995] 1 F.C. 720, [1994] F.C.J. No. 1902.
[22]
In
this case, the Officer considered whether a decision was imminent on the
Applicant’s H&C application, and sought independent information from CIC
Etobicoke in this regard. The Officer erred by not allowing the Applicant a
chance to respond to this information, which was not available to the
Applicant, and then using this information to form a conclusion.
[23]
Indeed,
as was the case in Muliadi v. Canada (Minister of Employment and Immigration),
1986 2 FC 205, 66 N.R. 8, “it was the officer’s duty before disposing of the
application to inform the appellant of the [information] and to give him a fair
opportunity of correcting or contradicting it before making the decision
required by the statute.” See Muliadi, above, at paragraph 14 (QL). In
this instance, the Office violated the Applicant’s procedural fairness rights by
relying on extrinsic evidence without providing him a chance to respond.
Inadequate
Reasons
[24]
The
Officer in this instance concluded that a decision on the Applicant’s H&C
was not imminent. However, the Officer neglected to state: (a) why the decision
was not imminent; (b) what was meant by the term imminent; (c) what timeframe was
given by CIC Etobicoke; and (d) why this time frame does not render the
decision imminent. As a result, the Applicant is left guessing what the Officer
meant with regard to a decision being “not imminent.” The Applicant contends
that this failure to give an adequate explanation as to why the decision would
not be imminent is a breach of procedural fairness.
The Respondent
Timeliness
[25]
The
Officer undertook a lengthy analysis of: (a) when the H&C application was
filed; and (b) the fact that the application was filed prior to the removal
order being issued. As such, the Officer clearly considered the timeliness of
the Application.
[26]
While
the Applicant has argued that the Officer failed to consider the timeliness of
his application within the context of this case, the Applicant did not request
that the Officer consider the timeliness within any specific context. The
Respondent suggests that timeliness itself was the context within which the
Officer was asked to defer the removal. As such, the Applicant cannot now argue
that the Officer should have contextualized the timeliness of his application.
Furthermore, the consideration of timeliness was not a legal argument as
alleged by the Applicant, but was instead one of many factors for the Officer
to consider.
Extrinsic
Evidence
[27]
The
Respondent submits that the Applicant’s suggestion of extrinsic evidence relies
on old law. According to Haghighi v. Canada (Minister of
Citizenship and Immigration), 257 N.R. 139, 2000 F.C.J. No. 854 at paragraph
27, “asking…whether the report can be characterized as ‘extrinsic evidence’ is
no longer an adequate analytical approach.” Rather, the Respondent submits that
the factors enumerated in Baker v. Canada, [1999] 2 S.C.R. 817, [1999]
S.C.J. No. 39 must be applied as considered in Bhagwandass v. Canada (Minister of
Citizenship and Immigration), 2001 3 FC 3, 2001 FCA 49:
a. Decision
within the statutory scheme: The Respondent contends that an
enforcement officer’s decision in this instance is highly discretionary.
Furthermore, no right is being conferred by the decision, rather only an
obligation is being deferred. The Respondent submits that “the minor,
discretionary nature of the decision militates against disclosure”;
b. Influence of
the evidence: In consideration of the influence of the evidence, the
Respondent submits that the Officer relied on many factors before refusing the
request to defer. The statement by the Etobicoke office was only one piece of
evidence used to consider only one of a variety of factors. As such, the
Respondent contends that its influence on the Decision was nominal;
c. Harm from an
incorrect decision: The only harm that could occur from an
incorrect decision is that the removal order would take place earlier than it
otherwise would. The Respondent submits that an early departure is not
important within the spectrum of immigration decisions;
d. Costs and
delays of disclosure: The Applicant has not provided any evidence
that the cost in time and money of cancelling a flight booking and possibly
cancelling temporary travel documents is insignificant.
The Respondent submits that these five
factors militate against disclosure of the evidence in this case. Furthermore,
an assessment of these factors shows that the Applicant had a reasonable
opportunity to participate meaningfully in the decision-making process. While the
Respondent concedes that disclosure might have been warranted in other
circumstances, in this case “requiring disclosure of the statement by the CIC
Etobicoke office would simply have added delay for delay’s sake.”
[28]
Finally,
the Respondent contends that the recent Federal Court case Adams v. Canada
(Minister of Citizenship and Immigration), 2009 FC 1193, [2009] F.C.J. No.
1489 at paragraphs 18-28 supports the assertion that the Officer did not have a
duty to discuss the CIC Etobicoke statement that the Applicant’s H&C
application was not imminent.
Adequacy
of Reasons
[29]
The
Applicant alleges that the Officer ought to have explained the word “imminent.”
However, the Respondent suggests that the statement from CIC, including the
word “imminent,” is simply evidence provided to the Officer from CIC. It is not
the Officer’s prerogative to explain the evidence he receives. Rather, the role
of the Officer is to explain the conclusion he draws from the evidence.
Furthermore, the word “imminent” is self-explanatory. There is little or no
ambiguity in this word. Accordingly, it is unreasonable to require the Officer
to provide an explanation of the term.
ANALYSIS
[30]
The
deferral request clearly asked the Officer to consider the timeliness of the
H&C application:
Mr. Villanueva’s humanitarian application
will be outstanding for 15 months by the date he is scheduled for removal from Canada. He filed his application as
the earliest possible time possible. As such, his H&C has been filed in a
timely manner and has not yet been resolved due to backlogs in the system. I
ask that you therefore defer removal until such time as a decision is made on
his outstanding H&C application, presently at the Etobicoke office.
[31]
The
Officer’s response to this was to contact the Etobicoke office to find out if a
decision on the Applicant’s H&C application was “imminent.” He was told a
decision was not imminent.
[32]
The
Applicant’s argument is that his request should have been considered and
granted on the basis that his H&C application was timely and had not been
resolved because of backlogs in the system, and not just on whether it was
imminent.
[33]
The
jurisprudence of the Court is that a timely H&C application is a relevant
factor when considering a deferral request. See Simoes and Baron,
above.
[34]
The
Officer was certainly correct in saying that “submitting an H&C application
in itself is not an impediment to removal,” but that was not the issue here.
The Officer was asked to consider a timely H&C application that had not
been decided because of backlogs in the system.
[35]
Nothing
in the relevant jurisprudence states that a removals officer cannot or should
not take into account backlogs in the system that have led to a long delay in
an H&C application. Rather, recent Federal Court jurisprudence suggests
that an officer can consider backlogs within the context of a removal order.
See Williams v. Canada (Minister of Public Safety and Emergency Preparedness)
2010 FC 274 at paragraph 42. And I note that, in considering a stay application
in Harry, Justice Gibson was particularly concerned about backlogs in
the system and the Minister’s being “far from diligent in the pursuit of the
applicant’s H&C application,” a matter of “particular import in the light
of concern for the best interests of the applicants’ Canadian-born child.” See Harry
v. Canada (Minister of
Citizenship and Immigration), 195 F.T.R. 221, [2000] F.C.J. No. 1727 at
paragraph 15. In Simmons v. Canada (Minister of Public Safety and Emergency
Preparedness), [2006] F.C.J. No. 1400, 2006 CarswellNat 2861 at paragraph
8, Justice Harrington, citing relevant authority, expressed his view that an
enforcement officer has “the discretion to await the pending decision on the
H&C application.”
[36]
In
my view, then, the Officer was asked to consider the significant backlogs in
the system in the case of a timely H&C application that had been
outstanding for a considerable period of time (15 months). The Officer ignored
this request and refused to defer on the basis of, inter alia, “imminence”,
i.e. whether a decision on the H&C was about to be made, irrespective of
the amount of time it had been in the system and the reasons for the delay.
[37]
I
am not saying that the Officer had to grant the deferral based upon this
request. But I do think he had the discretion to consider it and was obliged to
say why it was left out of account. I see no evidence that the backlog factor
was given the consideration requested. The Officer recognizes that the H&C
application was timely, but in focussing upon “imminence” he neglected to
consider whether significant backlogs in the system and a long-outstanding
H&C application should impact his decision. In my view, this was a
reviewable error and the matter should be returned for reconsideration.
[38]
The
Applicant also raises extrinsic evidence and adequacy of reasons issues that,
strictly speaking, I do not need to decide for my decision.
[39]
Counsel
are requested to serve and file any submissions with respect to certification
of a question of general importance within seven days of receipt of these
Reasons for Judgment. Each party will have a further period of three days to
serve and file any reply to the submission of the opposite party Following
that, a Judgment will be issued.
“James
Russell”
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