Date: 20101005
Docket: IMM-4488-09
Citation: 2010 FC 992
Ottawa, Ontario, October 5, 2010
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
RONGFENG
GUAN
Applicant
and
THE MINISTER OF PUBLIC SAFETY
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondents
REASONS FOR JUDGMENT AND 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 a decision of an Inland Enforcement Officer
(Officer) of the Canada Border Services Agency (CBSA), dated September 8, 2009 (Decision), which
refused the Applicant’s request for a deferral of removal.
BACKGROUND
[2]
The
Applicant is a citizen of China. He came to Canada on August 20,
2002 to visit his parents and sister, who are Canadian citizens living in Toronto.
[3]
On
May 23, 2003 the Applicant filed a Convention Refugee claim. The Refugee
Protection Division (RPD) refused his claim because he failed to provide
sufficient evidence that he is a member of the Falun Gong movement and a person
of interest to the Chinese authorities. The Applicant’s Pre-Removal Risk
Assessment (PRRA) application also was refused because he had submitted no new
evidence to overcome the credibility issues raised by the RPD. He claims
he did not know that he could present new evidence. He did not challenge his negative
PRRA determination in this Court.
[4]
On
August 18, 2006, the Applicant applied to remain in Canada as a permanent
resident based on humanitarian and compassionate (H&C) grounds. The
Applicant claims that he is established in Canada, his parents
and sister are Canadian citizens, his wife and children residing in China
depend upon his income in Canada for their support, and that he would be at
risk if he were to return to China. He furnished for inclusion in his H&C
application new evidence in support of his claim to membership in the Falun
Gong. To date, no decision has been made on this application.
[5]
On
August 18, 2009 the CBSA advised the Applicant that he was to report for
removal from Canada on September 12, 2009. The Applicant requested a deferral
of the removal order on the basis that he has an outstanding H&C
application with risk factors. The Officer denied this request for deferral on
September 8, 2009.
[6]
On
September 11, 2009 Justice O’Keefe granted a stay of execution of the removal
order pending the outcome of this judicial review proceeding.
DECISION UNDER REVIEW
[7]
In
his Decision of September 8, 2009, the Officer observed that enforcement officers
have “very little discretion” to defer removal orders. Indeed, they are
obligated under section 48 of the Act to enforce such orders “as soon as
reasonably practicable.” The Officer noted that submitting an H&C
application, in and of itself, is not an impediment to removal. Parliament does
not provide for a statutory stay in such circumstances. The Officer noted that,
although the Applicant’s H&C application had been received on August 18, 2006,
as of February 4, 2009 it would be at least 18 to 24 months before the
application would be assigned to an officer for review. Nevertheless, the application
would continue to be processed after the Applicant’s removal to China and he would
be informed of the outcome. For these reasons, the Officer concluded that a
deferral of removal was unwarranted.
[8]
The
Officer acknowledged the Applicant’s claims that he was established in Canada and, more
specifically, that he had a full-time job and relatives in Canada, as well as a
family in China that relies
on his income. Pursuant to section 209 of the Regulations to the Act, however,
a work permit becomes invalid when a removal order made against the permit
holder becomes enforceable. Therefore, the Applicant was no longer legally
entitled to work in Canada. Moreover, the Applicant was advised when
applying for the PRRA that his removal order would be enforced following a
negative determination and that he should make arrangements regarding his work
and family in the event that such an outcome transpired.
[9]
Ultimately,
the Officer found insufficient evidence that the Applicant faced exceptional
circumstances warranting a deferral of the removal order on grounds that he was
established in Canada. The Officer made reference to a statement from
Applicant’s counsel that new evidence regarding the Applicant’s membership in
Falun Gong, which was pertinent to the H&C claim, was forthcoming. The
Officer noted in the Decision, however, that such evidence had not yet come
before him. In the absence of such evidence, he was not satisfied that the
alleged risk faced by the Applicant merited a deferral of the removal order.
[10]
In
a letter dated September 9, 2009, the Officer acknowledged his receipt that same
day of the aforementioned new evidence. Upon reviewing it, he found that it failed
both to corroborate the alleged risk that the Applicant would face upon his
return to China and to prove
that the Applicant faced exceptionally difficult circumstances meriting a
deferral of the removal order.
ISSUES
[11]
The issues on this application can be summarized as follows:
1.
Whether the Officer ignored relevant factors;
2.
Whether the Officer applied the correct legal test.
STATUTORY PROVISIONS
[12]
The following provisions of the Act are applicable in these
proceedings:
|
25. (1) The Minister shall, upon request of a
foreign national in Canada who is inadmissible or who does not meet the
requirements of this Act, and may, on the Minister’s own initiative or on
request of a foreign national outside Canada, examine the circumstances
concerning the foreign national and may grant the foreign national permanent
resident status or an exemption from any applicable criteria or obligation of
this Act if the Minister is of the opinion that it is justified by
humanitarian and compassionate considerations relating to them, taking into
account the best interests of a child directly affected, or by public policy
considerations.
48. (1) A
removal order is enforceable if it has come into force and is not stayed.
(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.
|
25.
(1) Le ministre doit, sur demande d’un étranger se trouvant au Canada qui est
interdit de territoire ou qui ne se conforme pas à la présente loi, et peut,
de sa propre initiative ou sur demande d’un étranger se trouvant hors du
Canada, étudier le cas de cet étranger et peut lui octroyer le statut de
résident permanent ou lever tout ou partie des critères et obligations
applicables, s’il estime que des circonstances d’ordre humanitaire relatives
à l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement
touché — ou l’intérêt public le justifient.
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.
(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.
|
[13]
The following provisions of the Immigration and Refugee
Protection Regulations, SOR/2002-227 are also applicable in these
proceedings:
|
209. A work
permit becomes invalid when it expires or when a removal order that is made
against the permit holder becomes enforceable.
|
209. Le permis
de travail devient invalide lorsqu’il expire ou lorsqu’une mesure de renvoi
visant son titulaire devient exécutoire.
|
STANDARD OF REVIEW
[14]
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.
[15]
Reasonableness is the
appropriate standard upon which to review whether the Officer erred in his
treatment of the evidence. The weight an officer chooses to assign to evidence
is a discretionary decision which deserves deference. See Aguebor v. Canada (Minister of Employment and Immigration)
(1993), 160 N.R. 315, [1993] F.C.J. No. 732 (F.C.A.), and Dunsmuir,
above, at paragraphs 51 and 53.
[16]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process and [also] with whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir,
above, at paragraph 47. Put another way, the Court should intervene only
if the Decision was unreasonable in the sense that it falls outside the “range
of possible, acceptable outcomes which are defensible in respect of the facts
and law.”
[17]
Issues regarding the
legal test applied by the Officer are to be determined on a standard of
correctness. See Golesorkhi v. Canada (Minister of Citizenship and
Immigration), 2008 FC 511, [2008] F.C.J. No. 637 at paragraph 8.
ARGUMENTS
The Applicant
Officer
Ignored Relevant Factors
[18]
The
Applicant says that the Officer failed entirely to consider that his H&C
application had been outstanding for three years through no fault of the
Applicant. This Court has consistently recognized the ability of an enforcement
officer to exercise his discretion to defer a removal order where an applicant
has made a timely H&C application that remains outstanding through no fault
of the applicant. See Wang v. Canada (Minister of
Citizenship and Immigration), [2001] 3 F.C. 682; Bhagat v. Canada
(Minister of Public Safety and Emergency Preparedness), [2009] F.C.J. No.
54 (F.C.); Harry v. Canada (Minister of Citizenship and Immigration),
[2000] F.C.J. No. 1727 (F.C.); Simoes v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 936 (F.C.); and Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[19]
As this
Court recently stated in Lisitsa v. Canada (Minister of Citizenship and
Immigration), 2009 FC 599 at paragraph 34:
In
Simoes above, the Court spoke of H&C applications brought on a
timely basis which were caught in the system for a long time and Wang
above, stated, “With respect to H&C applications, absent special
circumstances will not justify deferral unless based upon a threat to personal
safety”. I do not view the adoption of the statements from Wang above as
taking away from the factors listed in Simoes above if “special
circumstances exist”. In the present case, the application has been filed since
June 2007 and is still outstanding. This could be considered a special
circumstance however, the approach taken by the officer in the above quoted
portion of his reasons would never allow a timely H&C application to be the
basis to grant a deferral. In my view, this conclusion makes the officer’s
decision unreasonable. I do not know what the officer’s decision would be if he
considered the request in light of the law stated in Simoes above and Baron
above, hence the decision must be set aside and the matter referred to a
different officer for redetermination.
[20]
Further,
in concluding that the H&C application would continue following the
Applicant’s removal from Canada, the Officer failed to consider that the
removal would effectively render illusory the purpose of the H&C
application as a humanitarian remedy. Although not determinative, this
consideration was relevant. See Baker, above.
[21]
The
Applicant has waited three years for his H&C decision and must wait an
additional 18 to 24 months. This is excessive. There are few, if any, cases
where removal will not be attempted within five years. The Officer should have
considered the importance of providing fair procedures, as was contemplated by
Parliament when it provided for an inland H&C remedy for non-citizens in Canada. See Baker,
above; Suresh v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 1180 (F.C.A.); Melo
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No.
403 (F.C.); Toth v.
Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.).
Officer
Applied the Wrong Legal Test
[22]
The
Officer erred when he asked whether the evidence provided by the Applicant
corroborated his fear of removal to China. This is the wrong
legal test. The Officer should have asked whether the evidence was sufficient
to give rise to a credible concern about risk such that another officer,
mandated to consider the issue in the context of an H&C application and
with the expertise to do so, should consider that evidence before the Applicant
is removed from Canada. See De Gala v. Canada (Minister of
Employment and Immigration), [1987] F.C.J. No. 7 (F.C.); Ochnio v. Canada (Minister of
Employment and Immigration), [1985] F.C.J. No. 816 (F.C.).
[23]
Moreover,
the Officer erred by addressing directly the issue of risk, which is an issue
best left for an officer with expertise.
[24]
The
Officer should have recognized that the purpose of the H&C application is
to catch at-risk applicants who “fall through the cracks” because they do not
understand how the process works. The Applicant’s failure to provide new
evidence in his PRRA was due to such a misunderstanding. The Officer also should
have recognized that applicants may face risks that fall short of those
required to meet the statutory definition of refugee or person in need of
protection but that are nevertheless compelling. See Pinter v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 366 (F.C.) at
paragraphs 2 and 5-6; Ramirez v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 1763 (F.C.) at
paragraphs 46-47; Melchor v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 1600 (F.C.) at
paragraphs 19-20; Sahota v. Canada (Minister of Citizenship and Immigration),
[2007] F.C.J. No. 882 (F.C.) at paragraphs 8, 12; Thalang v. Canada
(Minister of Citizenship and Immigration), [2007] F.C.J. No. 1001 (F.C.) at
paragraph 14.
[25]
For
the above-stated reasons the Officer’s decision was unreasonable.
The
Respondents
Officer Has
Limited Discretion to Defer Removal
[26]
It
is trite law that an enforcement officer has the authority to defer a scheduled
removal order in very limited circumstances only. These circumstances are tied
to an applicant’s physical ability to comply with the order; for example,
fitness to travel. See Pavalaki v. Canada (Minister of Citizenship and
Immigration), [1998] F.C.J. No. 338 (F.C.); Wiltshire v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. No. 571 (F.C.) at
paragraph 6; Simoes, above; Wang, above, at paragraphs 31-32, 45;
Prasad v. Canada (Minister of Citizenship and Immigration), 2003 F.C.T.
614 (F.C.) at paragraph 32; Padda v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1081 at paragraphs 8-9.
[27]
The
Act does not provide for the reconsideration of decisions to execute a valid
removal order. In the instant case, the duty of the Officer was merely to
“particularize when and where the deportation order [was] to be executed” and
to ensure that the removal took place as soon as reasonably practicable
pursuant to section 48 of the Act. The Officer found that the Applicant’s
circumstances did not merit a deferral of removal. The Officer had no
discretion with respect to removal, and therefore his failure to reassess
cannot constitute grounds for judicial review. See Brar v. Canada (Minister
of Citizenship and Immigration), [1997] F.C.J. No. 1527 (F.C.); Williams
v. Canada (Minister of
Citizenship and Immigration), [2002] F.C.J. No. 1133 (F.C.).
Deferral
Request Is Not a Mini H&C
[28]
An
enforcement officer has neither the duty nor the discretion to consider various
H&C factors in determining whether or not to defer removal. See Benitez
v. v. Canada (Minister of
Citizenship and Immigration), [2001] F.C.J. 1802 (F.C.) at paragraph
19; Wright v. Canada (Minister of
Citizenship and Immigration) (2002), 20 Imm. L.R. (3d) 97 (F.C.) at
paragraph 15; Thirunavukkarasu v. Canada (Minister of Citizenship and
Immigration), [2003] F.C.J. No. 1350 (F.C.) at paragraphs 4-5; John v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 583 (F.C.) at paragraph
20.
[29]
Furthermore,
to require the Officer to speculate on the effect that a removal order would
have on an H&C application is to require him to go beyond the scope of his
duties and to conduct the kind of analysis reserved for an H&C officer. The
Officer did not err by concluding that an H&C decision was not imminent. The
Officer in this case reasonably exercised the narrow discretion afforded him
with respect to granting a temporary deferral.
Applicant’s Reply
Limited
Discretion
[30]
The
Applicant acknowledges the Officer’s limited discretion to defer a removal
order as well as the absence in the Act of stipulated grounds for granting a
deferral. The Applicant takes issue, however, with the Respondents’
misstatement of the reasoning in Wang, above, and other cases.
[31]
Contrary
to what the Respondents have stated, this Court has consistently recognized
that, in his or her limited discretion, an enforcement officer can consider
factors other than the Applicant’s physical ability to comply with the order.
One such factor is an H&C application that was brought in a timely manner
but remains outstanding due to a backlog in the system. See Simoes,
above; Wang, above; Brown v. Canada (Minister of
Citizenship and Immigration), [2001] F.C.J. No. 1276 (F.C.) at
paragraphs 15-16; Romans v. Canada (Minister of Citizenship and Immigration),
[2001] F.C.J. No. 1201 (F.C.A.) at paragraphs 8-9; Kahn v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 1365 (F.C.) at
paragraph 24.
[32]
The
Applicant acknowledges that a deferral request should not require an
enforcement officer to engage in a mini H&C. However, contrary to the
Respondents’ assertions, an enforcement officer does have the discretion to
consider relevant factors pertaining to the H&C application, namely how
long the application has been pending and, tentatively, whether that
application has any merit.
[33]
Contrary
to the Respondents’ assertions, the jurisprudence does not indicate that enforcement
officers need not consider relevant H&C factors. In Benitez, above,
at paragraph 19, Justice McKeown indicated that it is up to the Applicant to
identify factors relevant to the enforcement officer’s exercise of discretion
and to bring them to the officer’s attention:
In
essence, the submissions of the applicant’s counsel do not properly construe
the system as set out in the present Immigration Act, i.e. the proper place for
the full consideration of all of an applicant’s H&C factors is before the
H&C Officer, not the removals officer. In my view, the removals officer is
entitled to rely on what the applicant’s counsel determines to be the
overriding factor warranting deferral. As such, counsel must be very selective
about what he or she chooses to point out to a removals officer. I reiterate
that the current Act does not give a removals officer the discretion to
consider various H&C factors in determining whether or not to defer removal
of the applicant from Canada.
[34]
In
John v. Canada (Minister of Citizenship and Immigration), [2003]
F.C.T. 420 the H&C application had already been rejected. Justice Snider
stated at paragraphs 20 and 21:
As
a result, there is likely no requirement that the removals officer consider
H&C factors, including the impact of the removal on the Canadian citizen
child. Such a duty on the removals officer, where one already exists at the
H&C application stage, would constitute unnecessary duplication.
With
respect to the case before me, I note that the Applicant had every opportunity
to present her concerns for her daughter at the H&C application stage. Her
H&C application was rejected and no application for judicial review of that
decision was commenced. Alana’s medical condition has not changed; no evidence
was presented to the Officer that could not have been provided with the H&C
application. The practical result of granting the Applicant’s application in
this case would be to place in the hands of the removals officer the obligation
to revisit the H&C decision.
[35]
Although
there appears to be a lack of consensus in the Court as to whether an
enforcement officer has a duty to consider any H&C factor, the cases
above indicate that where relevant factors have been brought to the officer’s
attention, the officer must at least consider them. At minimum, there is a
consensus, grounded in Wang, above, that enforcement officers may defer
a removal order where an H&C application is made in a timely fashion but a
determination has yet to be made. Such is the Applicant’s case. See Simoes,
above; and Wang, above.
[36]
In
addition, although the Respondents failed to address it, the Officer erred by
discounting the risks facing the Applicant in China. These risks
include death, extreme sanction and inhumane treatment. The Court in Wang,
above, recognized that, in such circumstances, a deferral of a removal
order should normally be granted pending the H&C hearing. See also Simoes,
above. If the Respondents, in paragraph 12 of their Memorandum, subsumed these
risks factors under general H&C factors (which, according to the Respondents,
the Officer should not consider in exercising his discretion), they were in
error.
[37]
The
discretion to defer the execution of a removal order must be exercised in a
manner that accords with Constitutional norms. As a member of the Falun Gong,
the Applicant faces risks in China that engage his rights under section 7 of
the Charter. This information is new to his H&C application. The Officer,
in his discretion, should have deferred removal in circumstances such as these
where the Applicant’s rights may be breached irreparably. See Suresh v. Canada (Minister of
Citizenship and Immigration), [2002] S.C.J. No. 3.
[38]
Finally,
in calculating the timeliness of an H&C application, the jurisprudence of
this Court indicates that the relevant consideration is not how much time
remains before the application will be heard but rather how long it has been since
the application was filed. In the instant case, however, the Officer observed
that the application would not be assigned to an officer for at least 18 to 24
months. This Court has found that approach unacceptable. In Bhagat, above,
Justice Lemieux observed at paragraph 18:
It
is clear the Enforcement Officer calculated timeliness not in terms of when the
H&C application was filed but when it would be decided. This approach
raises a serious issue.
[39]
Also
with respect to timeliness, Justice Gibson in Harry, above, concluded
that an H&C application, brought one year before the removal order, had been
brought in a timely manner and that failure to weigh this factor properly in an
application for deferral of a removal order raised a serious issue.
[40]
In
the instant case, the Applicant’s H&C application was filed in 2006. It was
filed in a timely manner and has been delayed through no fault of the
Applicant.
ANALYSIS
[41]
It
is well understood that an enforcement officer has a limited discretion to
defer removal. However, this Court has consistently recognized that where an
applicant has made a timely H&C application that remains outstanding at the
time of the deferral request, then the officer can consider this factor as a
special circumstance in deciding whether to exercise his discretion to defer
under section 48 of the Act. See Bagri, Wang, Baker, Bhagat,
Harry, and Simoes, above.
[42]
My
review of the Decision convinces me that the Officer in this case, although he
acknowledged the outstanding H&C application, failed to turn his mind to whether
it amounted to a special circumstance on the facts of this case. The Applicant,
at the material time, had a timely H&C application outstanding for some
three years through no fault of the Applicant. Not to recognize this as a possible
factor in a deferral decision would be to secretly undercut the H&C process
from the perspective of applicants. In my view, this is not entirely remedied
by the fact that the H&C process can be continued outside Canada.
[43]
As
the Applicant points out, following Simoes, above, in deciding when it
is “reasonably practicable” for a removal order to be executed, a removal
officer may consider various factors such as illness, other impediments to
travel and pending H&C applications that were brought on a timely basis but
have yet to be resolved due to backlogs in the system. In the present case we also
have the same error that occurred in Bhagat, above, at paragraph 18: “it
is clear that the Enforcement Officer calculated timeliness not in terms of
when the H&C application was filed but when it would be decided.”
[44]
I
note also that in Harry, above, Justice Gibson calculated that an
H&C application was outstanding in terms of the time lapse between the time
the H&C application was filed and when the applicant in that case was
scheduled to be removed. Moreover, as I pointed out in Villanueva v. Canada (Minister of
Public Safety and Emergency Preparedness), 2010 FC 543 (Can.
LII), Justice Zinn in Williams v. Canada (Minister of Public Safety and
Emergency Preparedness), 2010 FC 274 at paragraph 36 made it clear that
[w]here 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.
[45]
In
the present case, although asked to defer on the basis of a timely H&C
application that was long outstanding through no fault of the Applicant, the
Officer failed to turn his mind to this issue in deciding whether this was a
special circumstance that affected the reasonable practicality of removal. In
my view, this was a reviewable error and the Decision must be returned for
reconsideration.
[46]
The
Applicant has raised other reviewable errors. However, there is no need for
extensive reasons on the additional points.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application is allowed, the Decision is quashed and the matter is returned for
reconsideration by a different officer.
2.
There
is no question for certification.
“James
Russell”
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