Date: 20101125
Docket: IMM-232-10
Citation: 2010 FC 1187
Ottawa, Ontario, November 25,
2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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RICARDO NUCUM, TERESITA NUCUM,
JENILIMAI NUCUM
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Applicants
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and
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THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondents
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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 (the Act), for judicial review of a
decision by an Inland Enforcement Officer (the officer), dated January 8, 2010
and January 13, 2010, wherein the officer refused to defer the execution of a
removal order against the applicants.
[2]
The
applicants request an order setting aside the decision of the officer and referring
the matter back for redetermination by a different officer in accordance with
such direction as the Court may consider appropriate.
Background
[3]
Ricardo
Nucum, Teresita Nucum, Jenilimai Nucum (the applicants) are citizens of the Philippines. They arrived in Canada on October 16, 2002 on
a single-entry visa granted in Abu Dhabi. They applied for refugee status in Canada and were denied on
August 13, 2004. Their pre-removal risk assessment (PRRA) was also denied on
June 1, 2006.
[4]
In
2005, Mr. Nucum was involved in a serious motor vehicle accident. He sustained
several injuries including a fracture puncture to his lungs, kidney and liver
lacerations and a right shoulder injury, from which he has never recovered. He
suffered a stroke in January 2009 and continues to have moderate vertigo, right
shoulder pain and a moderately severe kidney disease for which he may require
dialysis in the future.
[5]
The
applicants have been scheduled to be removed from Canada three times; on June
22, 2006, February 14, 2007 and March 11, 2008. Each time they received a
deferral due to Mr. Nucum’s medical condition.
[6]
In
May 2008, the applicants filed a humanitarian and compassionate (H&C)
application requesting exemption from the requirement of having to apply for a
visa from outside of Canada, pursuant to section 25
of the Act.
[7]
The
applicants were scheduled to be removed on January 18, 2010. They applied for a
deferral of removal until their H&C application is determined. The denial
of the request to defer removal is the subject of this judicial review.
Officer’s Decision
[8]
The
officer found that, provided there are no impediments to removal, he had a duty
under subsection 48(2) of the Act to enforce removal orders as soon as
practicably possible.
[9]
The
officer found that submitting an H&C application is not in itself an
impediment to removal as there is no statutory stay where a pending H&C application
has not been approved in principle. The officer found that the applicants’
H&C application which was sent to the Case Processing Centre Vegreville (CPC
Vegreville) on May 13, 2008 could have been approved at that time. However, CPC
Vegreville referred the H&C application to Citizenship and Immigration
Canada, Mississauga for a more
detailed examination. The officer found that the H&C application would
continue to be processed if the applicants were removed.
[10]
The
officer acknowledged Mr. Nucum’s serious medical condition and the injuries
that he sustained in the car accident. The officer found that Mr. Nucum’s
removal has been deferred since 2006 and that he has been able to treat his
injuries. The officer found that the applicants provided inadequate information
about whether Mr. Nucum would be able to receive adequate medical care in the Philippines. The officer
did not consider the medical condition sufficient to warrant deferral of
removal.
[11]
The
officer noted that Jenilimai Nucum is attending the University of
Guelph-Humber. The officer found that there was inadequate information to show
that Jenilimai Nucum could not receive education in the Philippines. He further
found that enrolment in education in Canada does not constitute a
stay of removal. The officer also noted that Jenilimai Nucum is involved in a
serious same-sex relationship. The officer found that Jenilimai Nucum’s partner
could sponsor her as a member of the family class if Jenilimai Nucum was
returned to the Philippines. The officer also found that the situation of
gays and lesbians in the Philippines did not warrant a
deferral of removal.
[12]
In
conclusion, the officer refused to defer the execution of the removal order
based on the above findings.
Issues
[13]
The
applicants submit the following issues for consideration:
1. Did the officer err
in fact and in law by failing to consider whether there were special
circumstances that justified the deferral requested based on the outstanding
H&C application?
[14]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the officer err
in refusing to defer the applicants’ removal from Canada pending a
determination of their outstanding H&C application?
Applicants’ Written Submissions
[15]
The
applicants submit that the officer erred by failing to consider the issues of
timeliness of the H&C application and the delay in receiving a decision.
The applicants submit that these issues constitute special circumstances in
which an officer could exercise discretion to defer removal.
[16]
The
applicants submit that the case at bar is indistinguishable from Lisitsa v. Canada (The
Minister of Citizenship and Immigration), 2009 FC 599, 86 Imm.
L.R. (3d) 20.
Respondents’ Written Submissions
[17]
The
respondents submit that the officer’s decision to refuse to defer the
applicants’ removal must be reviewed on the standard of reasonableness.
[18]
The
respondents submit that a pending H&C application is not alone, a basis
warranting a deferral of removal, although it may be considered by an
enforcement officer. Deferral should be reserved for cases where the failure to
defer removal will expose an applicant to death, extreme sanction or inhumane
treatment.
[19]
The
respondents submit that Lisitsa above, is distinguishable from the case
at bar primarily because the applicants in that case filed an H&C application
immediately upon learning of the possibility of removal and because the
applicants faced separation for an indeterminate period of time as the husband
could not be removed due to lack of travel documentation. The respondents
further submit that Lisitsa above, recognized that an H&C
application is not an impediment to removal. In addition, in Lisitsa above,
there was a reviewable error in the enforcement officer’s consideration of the
H&C application because the officer stated that he would never allow
a timely H&C application to be the basis for a deferral.
[20]
The
respondents submit that in the case at bar, no special circumstances existed
because the applicants did not file an H&C application in a timely manner.
[21]
In
addition, the respondents submit that there was no error because the officer
was aware of the H&C application and considered the fact that it was
outstanding in assessing whether to defer removal. The officer did not state
that an H&C application could never be the basis to grant a deferral
Analysis and Decision
[22]
Issue
1
What is the appropriate
standard of review?
The Supreme Court of Canada held in Dunsmuir
v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 that a standard of review analysis need not
be conducted in every case. Where the standard of review applicable to a
particular issue before the court is determined in a satisfactory manner by
previous jurisprudence, the reviewing court may adopt that standard of review
(at paragraph 57).
[23]
As I
held in Lisitsa above, previous jurisprudence has established that the
standard of review of an enforcement officer’s refusal to defer a removal from
Canada is reasonableness (see Lisitsa above, at paragraph 27; Baron v. Canada (Minister of
Public Safety & Emergency Preparedness), 2009 FCA 81, [2010] 2
F.C.R. 311 at paragraph 25). This standard is based on the statutory discretion, albeit
limited, that an enforcement officer exercises in refusing to defer a removal
and the deference owed to decision makers exercising such discretion (see Ramirez
v.
Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC 706 at paragraph
10).
[24]
Issue
2
Did the officer err in
refusing to defer the applicant’s removal from Canada pending a
determination of their outstanding H&C application?
It has been recognized that an
enforcement officer has discretion to defer removal. This discretion is limited
to when the removal order will be executed (see Simoes v. Canada (Minister of
Citizenship & Immigration) (2000), 7 Imm. L.R. (3d) 141, [2000]
F.C.J. No. 936 (QL) (F.C.T.D.) at paragraph 12). Similarly, the enforcement
officer is under a duty to execute the removal as soon as practicably possible
under subsection 48(2) of the Act
[25]
As
I noted in Lisitsa above, it is settled law that the mere existence of a
pending H&C application does not result in the requirement to defer removal
(at paragraph 31; see also Baron above, at paragraph 50; Simoes
above, at paragraph 13). The existence of a timely filed H&C application,
however, may be a special factor that an enforcement officer considers in
determining when it is reasonably practicable for the removal order to be
executed (see Lisitsa above, at paragraph 31; Simoes above, at
paragraph 12). An officer may also look at special considerations such as
illness and other impediments to travelling (see Simoes above, at
paragraph 12).
[26]
In
the present case, the applicants filed an H&C application in May 2008 which
was referred to a local office in July 2008. The application is still outstanding.
[27]
In
Lisitsa above, I stated at paragraph 34:
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.
[28]
In
this case, the H&C application was filed in May 2008. The application has
been in the system more than two years.
[29]
I
have reviewed the officer’s decision and I have come to the conclusion that he
failed to address whether the fact that the H&C application has been
outstanding would constitute a “special circumstance” as I outlined in
paragraph 34 of Lisitsa above. The failure to address this issue constitutes
a reviewable error. I do not know what the officer’s decision would have been
had he addressed this matter. The application for judicial review must be
allowed and the matter is referred to a different officer for redetermination.
[30]
I
need not deal with the other submissions of the applicants.
[31]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[32]
IT
IS ORDERED that the application for judicial review is allowed and the matter
is referred to a different officer for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration
and Refugee Protection Act,
S.C. 2001, c. 27
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48.(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.
. . .
72.(1)
Judicial review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
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48.(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.
. .
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72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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Immigration
and Refugee Protection Regulations,
SOR/2002-227
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233.
A removal order made
against a foreign national, and any family member of the foreign national, is
stayed if the Minister is of the opinion under subsection 25(1) of the Act
that there exist humanitarian and compassionate considerations, or public
policy considerations, and the stay is effective until a decision is made to
grant, or not grant, permanent resident status.
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233.
La décision du ministre prise au titre du paragraphe 25(1) de la Loi selon
laquelle il estime que des circonstances d’ordre humanitaire existent ou que
l’intérêt public le justifie emporte sursis de la mesure de renvoi visant
l’étranger et les membres de sa famille jusqu’à ce qu’il soit statué sur sa
demande de résidence permanente.
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