Date:
20120919
Docket:
IMM-1462-12
Citation:
2012 FC 1096
Ottawa, Ontario,
September 19, 2012
PRESENT: The
Honourable Mr. Justice Near
BETWEEN:
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LUCENE HELEN CHARLES
AJOHKE AHADZIE
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Applicants
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and
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THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the decision of a Canada Border
Services Agency (CBSA) enforcement officer (“the Officer”) dated February 3,
2012. In her decision, the Officer refused to defer the removal of the
Applicants, Lucene Charles and her daughter, Ajohke Ahadzie, from Canada
pursuant to section 48(2) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA).
[2]
For
the following reasons, this application is dismissed.
I. Background
[3]
The
primary applicant (“the Applicant”), Lucene Charles, is a citizen of Saint Vincent. She first came to Canada in 1992 as a visitor. During her first stay in Canada, the Applicant married a Canadian citizen and had her first two children. She did
not apply for permanent residence.
[4]
The
Applicant and her family moved to The Gambia in 1999, where her third child was
born. All three children are dual Canadian and Saint Vincentian citizens. In
2000, the Applicant and her husband separated. They obtained a formal divorce
in 2006 from the High Court of The Gambia, and custody of all three children
was granted to the Applicant by the Gambian courts. An injunctive order was
also issued against the Applicant’s ex-husband, restraining him from
“molesting, harassing, assaulting, or threatening the petitioner in any manner
whatsoever” (Application Record, Exhibit A at 12).
[5]
In
2007, the Applicant’s fourth child, Ajohke Ahadzie, was born of her new
relationship with a Gambian citizen. This child, a Gambian and Saint
Vincentian citizen, is the secondary applicant in these proceedings.
[6]
In
2007, the Applicant returned to Canada with all four of her children. She and
her daughter were granted visitor status for a period of six months upon entry.
Subsequently, the Applicant has been unsuccessful in several applications for
renewed or reinstated status in Canada:
• Work permit application: refused on
January 22, 2008 on the grounds that she did not qualify to apply from inside Canada. Application for leave and judicial review was denied on May 15, 2008.
• First
application for permanent residence on Humanitarian and Compassionate Grounds
(H&C application): refused on February 13, 2008. Application for leave was
granted on August 22, 2008, but the final judicial review was denied (see
Charles v Canada (Minister of Citizenship and Immigration), 2008 FC 1345,
[2008] FCJ No 1718).
• Application
for extension of visitor visa: refused on June 11, 2008.
• Application
for Refugee Protection: refused on November 25, 2010.
• Second
H&C application: refused on August 3, 2011.
• Pre-Removal
Risk Assessment (PRRA): negative decision rendered on August 3, 2011.
[7]
The
Applicant received Voluntary Departure Confirmation forms with the refusal of
her initial work permit application, and was reported inadmissible to Canada under section 44(1) of IRPA first on February 14, 2008, and again on January 13,
2009. Conditional departure orders were issued for the Applicant and her
daughter on January 13, 2009.
[8]
Following
the refusal of the second H&C application and the PRRA, the CBSA directed
the Applicant to begin making preparations for her removal from Canada. She was required to attend an interview at the Greater Toronto Enforcement Centre
(GTEC) in November 2011, which did not take place until December 1, 2011. The
Applicant submitted a written request for deferral on January 9, 2012, and a
subsequent interview was held on January 12, 2012. The removal order was
deferred by the CBSA until further notice on January 16, 2012 to allow the
agency time to review the documents submitted by the Applicant.
[9]
At
an interview with a CBSA officer on February 3, 2012, the Applicant informed
the CBSA that she had recently submitted a new H&C application, as well as
an application for a Temporary Resident Permit.
II. Decision
under Review
[10]
In
her decision refusing the deferral, the Officer found that “counsel ha[d]
submitted insufficient objective evidence to demonstrate that she and her
daughter Ajohke face exceptionally difficult circumstances that justify a
deferral of their removal to St. Vincent.” The Officer noted that she had
little discretion to defer removal and that, if an enforcement officer chooses
to exercise such discretion, he or she must do so while continuing to enforce a
removal order as soon as reasonably practicable.
[11]
The
Officer acknowledged that the children were attending school and were involved
in their communities, but noted that the Applicant was given “ample time to
make a decision as to whether she would like all of her children to return with
her to St. Vincent or if she would like to entrust them in someone’s care in Canada.” The Applicant had indicated in an interview with the CBSA that she would be
transferring guardianship of her children to her priest, and she had extended
family in Canada who could assist with the children. Had the Applicant decided
to take all of her children with her to Saint Vincent, they would have all the
benefits of Saint Vincentian citizenship and the opportunity to continue their
education. The Officer further noted that the Applicant had previously
travelled with the children to a country that was not the country of her
citizenship, where they resided for several years.
[12]
The
Officer further considered the personal circumstances of the Applicant. She
noted that the Applicant had not applied for, or received, an extension to her
visitor status the first time she arrived in Canada. In contrast, the
Applicant received residency status in The Gambia. She found gainful
employment both while in The Gambia and when she returned to Canada. The Officer inferred that the Applicant would be able to secure employment back in Saint Vincent, and noted that she has a support network of family in her home country,
including parents and siblings. The Officer further stated that the Applicant
was receiving child and spousal support from her ex-husband, and financial
support from the father of her fourth child.
[13]
Furthermore,
since returning to Canada, the Applicant submitted two applications for
permanent residence that “thoroughly assessed [her] personal circumstances in Canada, including her establishment, ties to Canada, best interest of the children and the hardship
she would face if she were returned to St. Vincent.” The Officer noted that
the CBSA had been sensitive to the Applicant’s need to secure family law
papers, and granted her extra time to secure the necessary orders.
[14]
The
Officer concluded that the Applicant “has exhausted all of her avenues to
remain in Canada legally”, stating that:
A review of Ms. Charles’ enforcement file as well as
the evidence presented by counsel does not satisfy me that a deferral of
Ms. Charles’ removal from Canada, for any period of time, would compel her
to make the appropriate arrangements for herself and her children to prepare
for removal from Canada.
III. Issues
[15]
This
application raises the following issues:
(a) What
was the proper record before the Officer?
(b) Given
the record before her, was the Officer’s decision reasonable?
IV. Standard of Review
[16]
An
enforcement officer’s decision refusing to defer an applicant’s removal from Canada is reviewable on a reasonableness standard (Baron v Canada (Minister of Public Safety
& Emergency Preparedness), 2009 FCA 81, [2009] FCJ No 314 at para 25). The
Court will intervene only if the decision-making process is not justified,
transparent and intelligible, or if the decision falls outside the “range of
possible, acceptable outcomes defensible in respect of the facts and law” (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] SCR 190 at para 47).
V. Analysis
A. Record
before the Officer
[17]
The
Applicant submits that she requested a deferral of the enforcement of her
removal order until:
(a) her children finished their school year;
(b) guardianship of her children was
established;
(c) she was able to
fundraise sufficient funds on which to survive when she arrived in Saint Vincent; or
(d) her most recent H&C
application was processed.
[18]
She
contends that her request for deferral on the basis of grounds (a) through (c)
was made orally at her interview of December 1, 2011. The Applicant contends
that her written submission of January 9, 2012, in which ground (d) was raised,
was “over and above” the request made in the meeting on December 1, 2011. The
Applicant further contends that she reiterated her request for deferral of the
removal order during her subsequent interview on January 12, 2012, and that at
no point was she informed that only written submissions would be considered. The
Applicant thus takes the position that the Officer was under an obligation to
consider each of her requests, and that the Officer failed to do so.
[19]
The
Respondent, however, submits that no deferral request was made at the pre-removal
interview on December 1, 2011, and that only the written deferral submissions
presented by the Applicant were properly before the Officer for consideration. The
Respondent does not contest that an oral request for deferral was made at the
meeting on January 12, 2012. Rather, it submits that CBSA Officer Matadar, who
conducted the interviews and who is not the Officer, denied the specific
request for deferral made at the meeting of January 12, 2012, and that that
particular oral decision is not under review in this application. In this way,
I find that, contrary to the Applicant’s assertions, there is no dispute as to
the appropriate form of a deferral request. Both parties agree that such a
request can properly be made either orally or in writing.
[20]
The
Respondent further contends that the Officer was not obligated to consider, in
her written decision of February 3, 2012, many of the grounds or personal
circumstances that the Applicant now raises in her submissions because they
were not included in the written deferral materials submitted on January 9,
2012. The Respondent further notes that the Applicant had not even submitted
her third H&C application until after she submitted the written materials.
[21]
I
am cognizant of the affidavit material filed by the Applicant with respect to
the December 1, 2011 meeting with Officer Matadar. The first affidavit
made by the Applicant in preparation for her stay motion was made more than two
months after the meeting. The second affidavit, sworn by her friend, Robert
Stevens, was made very recently – seven months after the events. The
Respondent has correctly pointed out that the two affidavits are inconsistent
as to what took place on December 1, 2011, which is not surprising given that
they were prepared some time after the meeting. As such, I prefer the
affidavit evidence of Officer Matadar.
[22]
Consequently,
I am persuaded, on the basis of the substance of Officer Matadar’s meeting
notes from December 1, 2011, January 12, 2012, and February 3, 2012, that there
was no request for deferral made orally at the meeting of December 1, 2011. A
request for deferral of a removal order is a significant item to which an
enforcement officer who is familiar with the removal process would be attuned. Indeed,
the notes entered into the system following Officer Matadar’s meetings with the
Applicant on January 12, 2012 and February 3, 2012 indicate that he recognized
on both occasions that a request for deferral was made orally. There is no
evidence to suggest that there was any change in Officer Matadar’s experience
between the December 1, 2011 meeting and the meetings in the following two
months that would point to his inability to recognize such a request in the
first meeting.
[23]
Accordingly,
I find that the record before the Officer, who was not present at any of the
meetings, was limited to the written submissions offered by the Applicant on
January 9, 2012 and the Applicant’s file.
B. Reasonableness
of the Officer’s Decision
(i) The
Officer’s Discretion
[24]
The
Federal Court of Appeal has emphasized that “an enforcement officer’s
discretion to defer removal is limited” (Baron, above at para 49). Section
48 of IRPA sets out a
positive obligation for the
enforcement of removal orders:
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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.
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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.
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[25]
A
removal officer may consider various factors in determining whether it is
“reasonably practicable” to execute a removal order, including illness, other
impediments to travelling, pending H&C applications that were brought on a
timely basis but have yet to be resolved due to backlogs in the system,
children’s school years, and pending births and deaths (Simoes v Canada (Minister
of Citizenship and Immigration), [2000] FCJ No 936, 7 Imm L R (3d) 141
at para 12; Baron, above at paras 49-51; Wang v Canada (Minister
of Citizenship and Immigration)(TD), 2001 FCT 148, [2001] FCJ No 295 at
para 44).
[26]
While
allowing for some discretion with respect to the timing of a removal, this
Court and the Federal Court of Appeal have declared that “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” (Wang,
above at para 48; Baron, above at para 51). The mere fact that an
H&C application is pending, unless it is based on a threat to personal
safety, is not sufficient to justify deferral of a valid removal order (Baron,
above at para 51; Wang, above at para 45).
[27]
The
Respondent contends that the Applicant requested an indefinite deferral order,
which was outside the Officer’s jurisdiction to grant. This Court has held
that a deferral is a “temporary measure necessary to obviate a serious,
practical impediment to immediate removal” (Griffiths v Canada (Solicitor
General), 2006 FC 127, [2006] FCJ No 182 at para 19; Ferraro v Canada
(Public Safety and Emergency Preparedness), 2008 FC 815, [2008] FCJ No 1035
at para 33), and that there is no authority in section 48(2) of IRPA for an
indefinite deferral. However, I find that the Applicant did not request an
indefinite deferral in her submissions of January 9, 2012, and that the Officer
was required to consider the reason for the Applicant’s request and the
evidence submitted to support it (Chetaru v Canada (Minister of Public
Safety and Emergency Preparedness), 2009 FC 436, [2009] FCJ No
515 at para 18).
(ii) Individual
Circumstances of the Applicant
[28]
The
Applicant submits that the Officer erred in failing to consider her compelling
individual circumstances. Specifically, she submits that the Officer did not
account for the Applicant’s particular history of abuse and its impact on her
ability to prepare for removal. As the jurisprudence makes clear, the
discretion of an enforcement officer in deferring the execution of a removal
order is limited to narrow circumstances. Deferral is to be reserved for those
cases where a failure to defer will expose the applicant to the risk of death,
extreme sanction or inhumane treatment (Baron, above at para 51; Wang,
above at para 48).
[29]
While
the Applicant’s history of abuse is tragic, it was not within the Officer’s
ambit of discretion to consider it in deciding whether to grant a deferral. Indeed,
a request for deferral is not to be treated as a pre-H&C application, and
the enforcement officer is not to assess the merits of the H&C application
(Chetaru, above at para 19; Prasad v Canada (Minister of Citizenship
and Immigration), 2003 FCT 614, [2003] FCJ No 805 at para 32; Simoes,
above at para 11). In my opinion, what the Applicant was asking the Officer to
consider on this point were the merits of her H&C application, which, at
the time of her request for deferral, she had not even submitted. The
Officer’s decision on this point was reasonable.
[30]
The
Applicant additionally contends that the Officer erred in failing to consider
the potential for her ex-husband to seek custody of the children upon her
removal from Canada. While I recognize that this may have been an important
factor for the Officer to weigh, there was no evidence supporting it in the
record before the Officer. The Officer therefore could not err by failing to
consider something that was not before her.
(iii) Best
Interests of the Children
[31]
The
Applicant submits that the Officer further erred in failing to consider the
short-term best interests of the children. Specifically, the Applicant
contends that the Officer was obligated to consider: (i) the impact of the
Applicant’s departure on the children, given their disabilities and past
trauma; (ii) the likelihood of her ex-husband to seek custody or to abduct the
children in her absence; and (iii) the time and difficulty of finding a legal
guardian for her Canadian children, in order to protect them from her
ex-husband. I have already found that the Officer did not err in failing to
consider the actions of the Applicant’s ex-husband with respect to custody of
the children because there was no evidence of this before the Officer.
[32]
This
Court has found that the best interests of the child analysis applicable to
enforcement officers in the context of removal orders is limited (Baron,
above at para 57). Indeed, it is established law that “an enforcement officer
has no obligation to substantially review the children’s best interest before
executing a removal order” (Baron, above at para 57), and that “illegal
immigrants cannot avoid the execution of a valid removal order simply because
they are the parents of Canadian-born children” (Baron, above at para
57).
[33]
The
Applicant relies, inter alia, on Munar v Canada (Minister of
Citizenship and Immigration), 2005 FC 1180, [2005] FCJ No 1448, in which
this Court held that an enforcement officer is within his mandate to evaluate
whether provisions have been made for leaving a child in the care of others in
Canada when the parent is to be removed (see para 40).
[34]
In
this case, the Officer considered both whether there were provisions in place
to care for the Applicant’s three Canadian children should she decide to leave
them in Canada, and what opportunities exist for them in Saint Vincent, should
she decide to take them with her. It was reasonable for the Officer to
conclude that the Applicant had sufficient time to make guardianship
arrangements for her Canadian children. In the absence of evidence
demonstrating how long and complicated the transfer of custody might be, the
Officer was well within her rights to conclude that the Applicant had made
arrangements for the care of her Canadian children when she indicated her
desire to transfer custody. Indeed, as the Respondent points out, the Officer
acknowledged in her reasons that the custody or guardianship arrangements were
not finalized when she stated that the Applicant “expressed her desire to
transfer guardianship of the boys.” I note that the Applicant indicated her
preference to leave her Canadian children behind months after she was first
informed of her imminent removal from Canada. While I sympathize with the
Applicant and recognize that this was a difficult decision to make, the Officer
did not make a reviewable error on this point.
[35]
Furthermore,
it was reasonable for the Officer to conclude that the Applicant has family in Canada that could be expected to support the children. While the Applicant now argues that
this was an error of fact because her aunt has moved away from Canada, and the only family members remaining are those with whom she has little to no
contact, this evidence was not squarely before the Officer when she made her
decision. Once again, the Officer cannot be expected to make a decision on the
basis of facts that are not before her.
[36]
Finally,
I agree with the Respondent that the Applicant is asking for an analysis that
is more appropriately suited to an H&C application in (i) above.
[37]
In
sum, I find that the Officer’s decision with respect to the best interests of
the children was reasonable.
(iv) Errors
[38]
The
Applicant finally submits that the Officer misconstrued the Applicant’s
submissions and made unreasonable findings of fact. I have already addressed
the Applicant’s contentions with respect to her family support in Canada and the guardianship status of her children. The Applicant’s final concern relates
to the Officer’s attendance to her financial situation and work history. Specifically,
the Applicant argues that the Officer mistakenly assessed her ability to
support herself based on her work history. I am unable to accept the
Applicant’s arguments. The Officer made a reasonable assessment of the
Applicant’s work experiences and skill level based on the evidence before her. For
example, the Applicant’s curriculum vitae describes her work experience
and the duties performed in each of her jobs. The Applicant’s own application
for a work permit describes her as “highly skilled.”
[39]
It
was also reasonable for the Officer to conclude that the Applicant’s mother
would be a source of support for her in Saint Vincent, particularly in light of
the fact that the letter from her mother, included as an affidavit in these
proceedings, was not before the Officer.
[40]
Given
the absence of evidence that the Applicant’s ex-husband has not been meeting
his support obligations since the Ontario court order of July 2011, it was
equally reasonable for the Officer to conclude that this was a source of income
for the Applicant. However, even if this was an error, the amount of support
does not go to the heart of the Officer’s decision, and thus does not
constitute a reviewable error.
VI. Conclusion
[41]
For
the reasons above, I find that the Officer’s decision was reasonable.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application for judicial review is
dismissed.
“ D. G. Near ”
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