Date: 20101025
Citation: 2010 FC 1047
Ottawa, Ontario, October 25, 2010
PRESENT: The Honourable Mr. Justice Harrington
Docket:
IMM-36-10
BETWEEN:
PAOLO MARIO ZAVALA REYES,
EVELYN TORRES REYES,
ELVIS ZAVALA REYES
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
Docket: IMM-1397-10
AND
BETWEEN:
PAOLO MARIO ZAVALA REYES,
EVELYN TORRES REYES,
ELVIS ZAVALA REYES
Applicants
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDERS
HARRINGTON
J.
[1]
The
cornerstone date of this case is March 12, 1997. Elvis Zavala Reyes was four
years old. That was the day an arrest warrant was issued against his parents
for failing to attend a meeting with a Canadian immigration officer. His father,
Paolo Mario Zavala Reyes, his mother Evelyn Torres Reyes, and young Elvis, had left
Chile and had come
to Canada in 1996 to
claim refugee status. Their claim was deemed abandoned later that year.
[2]
The
warrant was only executed in April 2007. They had gone underground, although it
must be said there was not much of an effort to find them. They then sought a
pre-removal risk assessment (PRRA) and applied for permanent resident status
from within Canada on
humanitarian and compassionate grounds (H&C). The decisions went against
them.
[3]
They
applied for leave and for judicial review of both decisions. While those
applications were pending an enforcement officer sought to remove them pursuant
to s. 48 of the Immigration and Refugee Protection Act (IRPA) which
stipulates that if a person who is removal ready does not voluntarily leave, he
is to be removed as soon as is “reasonably practicable.” They asked the
enforcement officer to defer removal pending the outcome of their applications
before this Court. He refused. They then applied for judicial review of that
decision and moved for a stay of removal pending the outcome of the three
applications for judicial review. I granted a stay in the application for
judicial review of the enforcement officer’s decision not to defer
(IMM-1397-10) and dismissed the motion in the other two applications on the
grounds of mootness. Subsequently leave was denied with respect to the PRRA,
but granted both with respect to the H&C and the decision of the
enforcement officer not to defer. These reasons extend to both judicial
reviews. Although reasons for granting the stay were not given, it is common
ground, as counsel were the same and the matter was heard the same week, that the
reasons in Shpati v. Canada (Minister of Public Safety and Emergency
Preparedness), 2010 FC 367, apply.
[4]
The
prime focus of the H&C application was the family’s establishment in Canada. They have
never been on the welfare line, have been gainfully employed and are engaged in
the community. Their application was prepared by an immigration consultant, not
a lawyer, and was not the best. It was said that young Elvis had finished
school but nevertheless his report cards had been submitted. They suggest that
he has a learning disability. Even if this disability was not specifically
drawn to the decision maker’s attention by way of a red hand, it was submitted
that it was self-evident from the record that the best interests of Elvis were
not taken into account, as required by s. 25 of IRPA. On the contrary, I
find that Elvis’ interests were taken into account, including his bilingualism
in English and Spanish. The officer was of the view that neither he nor the
family would suffer underserved, undue or disproportionate hardship if they
were required to follow the rules and apply for permanent resident status from
outside Canada. Furthermore,
the interests of the child are only one factor to take into account (Legault
v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 125, [2002] 4 F.C. 358).
[5]
The
officer was of the view that the negative factors outweighed the positive. Mr.
Zavala Reyes knew he was required to report to immigration officers in 1997 for
a possible removal. He failed to comply with a notice to appear, yet made no
attempt to regularize his status for nine years. By ignoring the notice to
report, he chose to live in the shadows. He and his wife worked for many years
without work permits and did not file tax returns.
[6]
The
officer referred to the decision of this Court in Serda v. Canada (Minister
of Citizenship and Immigration), 2006 FC 356, 146 A.C.W.S. (3d) 1057, which
is to the effect that it would defeat the purpose of IRPA if the longer an
applicant were to live illegally in Canada the better his or her changes were
to be allowed to stay here. I agree.
[7]
More
recently, the Federal Court of Appeal, per Mr. Justice Nadon, discussed such
conduct in Baron v. Canada (Minister of Public
Safety and Emergency Preparedness), 2009 FCA 81, 309 D.L.R. (4th) 411, at
para. 64:
Events of this type, i.e. where persons fail to
comply with the requirements of the Act or act in a way so as to prevent the
enforcement thereof, should always be high on the list of relevant factors
considered by an enforcement officer. It is worth repeating what this Court
said at paragraph 19 of its Reasons in Legault, supra. Although the
issue before the Court in Legault, supra, pertained to the exercise of
discretion in the context of an H&C application, the words of Décary J.A.
are entirely apposite to the exercise of discretion by an enforcement officer:
[19] In short, the Immigration
Act and the Canadian immigration policy are founded on the idea that
whoever comes to Canada with the intention of settling must be of good faith
and comply to the letter with the requirements both in form and substance of
the Act. Whoever enters Canada illegally contributes to falsifying the
immigration plan and policy and gives himself priority over those who do
respect the requirements of the Act. The Minister, who is responsible
for the application of the policy and the Act, is definitely authorised to
refuse the exception requested by a person who has established the existence of
humanitarian and compassionate grounds, if he believes, for example, that the
circumstances surrounding his entry and stay in Canada discredit him or create
a precedent susceptible of encouraging illegal entry in Canada. In this
sense, the Minister is at liberty to take into consideration the fact that the
humanitarian and compassionate grounds that a person claims are the result of
his own actions.
[Emphasis added in the Baron decision.]
[8]
Had
the family reported to the immigration officer as they were required to in 1997,
young Elvis would have been back home and could not have been used as an excuse
for the family to stay. Indeed, his learning disabilities may be somewhat of a
red herring as no reports from psychologists or other professionals were filed
to offer the officer any guidance as to how he personally would fare in Chile.
[9]
The
submission is that the officer is visiting the sins of the father upon the
innocent son. I would rather characterize this as an instance where the
principal applicant comes to Court with unclean hands and is not entitled to an
equitable remedy.
[10]
Turning
now to the decision of the enforcement officer, he is an officer of the Canada
Border Services Agency and thus, the respondent Minister originally named as
the Minister of Citizenship and Immigration should be the Minister of Public
Safety and Emergency Preparedness. The order will reflect that change.
[11]
I
am of the view that the enforcement officer erred in law in refusing to grant
an administrative stay on the basis that if the applicants succeeded in their
PRRA they would be entitled to return to Canada. The reasons
in the just released decision of Shpati v. Canada (Minister of
Public Safety and Emergency Preparedness et al.), 2010 FC 1046, apply.
[12]
However,
there is a fundamental distinction between Mr. Shpati’s situation and that of
the Zavala Reyes family. The Ministers and Mr. Shpati are still engaged in a
live controversy in that his application for judicial review of the refusal to
allow him to apply for permanent residence from within Canada was granted.
However, both the Zavala Reyes’ applications for permanent residence from
within Canada (H&C)
and PRRA were dismissed. In my opinion, the decision of the enforcement officer
not to defer has now become moot and should be dismissed on that basis.
[13]
A
copy of these reasons is to be placed in both Court docket nos. IMM-36-10 and
IMM-1397-10.
“Sean Harrington”
Ottawa, Ontario
October
25, 2010
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