Date:
20121121
Docket:
IMM-1461-12
Citation:
2012 FC 1345
Ottawa, Ontario,
November 21, 2012
PRESENT: The
Honourable Mr. Justice Russell
BETWEEN:
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HUI REN
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Applicant
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and
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MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (Act) for judicial review of the decision of
an Enforcement Officer (Officer) of the Canada Border Services Agency (CBSA),
dated 3 February 2012 (Decision), which denied the Applicant’s request for an
administrative deferral of his removal from Canada.
BACKGROUND
[2]
The
Applicant is a 30-year-old citizen of the People’s Republic of China (China). He first entered Canada in 2001 on a study permit. He maintained legal status in Canada until May 2009.
[3]
On
29 September 2009, the Applicant made a refugee claim, which was denied on 6
May 2011. The Applicant applied for a Pre-Removal Risk Assessment (PRRA) on 30
August 2011, which was refused on 12 January 2012. The Applicant was also
married in July 2011, and submitted an In-Canada Spousal Sponsorship in
September 2011.
[4]
When
the Applicant received his negative PRRA decision on 12 January 2012 he applied
for a deferral in order to make proper arrangements to leave Canada. He was granted a 5-week deferral, which moved the Applicant’s scheduled removal date to 17
February 2012.
[5]
On
2 February 2012, the Applicant submitted a formal request for an administrative
deferral of his removal. The basis of the request was that the Applicant’s wife
was pregnant, and he wished to remain with her for the duration of her
pregnancy. The Applicant submitted medical documentation stating that his wife
was experiencing complications with her pregnancy and was to remain on bedrest.
His wife’s due date was 6 May 2012 and the Applicant was requesting a deferral
of his removal until June 2012.
[6]
The
Applicant’s deferral request was denied on 3 February 2012. A stay of the
Applicant’s removal was granted on 16 February 2012.
DECISION UNDER
REVIEW
[7]
The
Decision under review consists of a letter to the Applicant dated 3 February
2012 (Refusal Letter) and the Officer’s Notes to File (Notes).
[8]
The
Refusal Letter states that the CBSA has an obligation under section 48 of the
Act to carry out removal orders as soon as reasonably practicable. The Officer
found that a deferral was not appropriate in the Applicant’s case.
[9]
The
Notes start by reviewing the Applicant’s immigration history. The Officer
reiterates that it is customary that a person under an enforceable removal
order be removed as soon as a negative PRRA is delivered. An officer has little
discretion to defer removal, but even if a deferral is granted an Officer must
still proceed with removal as soon as reasonably practicable.
[10]
The
Officer said that it is not in her authority to conduct an “adjunct H&C
application,” but that she had considered the special circumstances presented
by the Applicant. She accepted that the Applicant’s wife was facing medical
issues with her pregnancy, and that the Applicant’s removal might be difficult
for her. She went on to note that the medical note provided by Dr. Ou says that
the Applicant’s wife has pregnancy complications, but does not specify their
nature or gravity. It simply says that “she requires bed rest until delivery
and that she needs her husband to take care of her at home until delivery.”
[11]
The
Officer found that insufficient evidence was provided by the Applicant that he
is the only person able to provide assistance to his wife during her pregnancy.
The Officer pointed out that the Applicant’s wife is a permanent resident of Canada, and thus has access to many public, social, and health care services. Based on the
doctor’s notes, it appears she is already receiving medical attention, and
there are agencies that can provide home care services. The Officer was
satisfied that the Applicant’s wife would receive adequate care for her medical
conditions.
[12]
The
Officer acknowledged that the Applicant’s removal will be hard on his wife, but
found that she has access to a broad range of services in Canada that can provide her with assistance. The Officer found that the Applicant did not
face exceptionally difficult circumstances to justify a deferral of his
removal, and denied his request.
STATUTORY
PROVISIONS
[13]
The
following provisions of the Act are applicable in this proceeding:
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Enforceable removal order
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.
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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.
(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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ISSUES
[14]
The
Applicant and Respondent raise the following issues in this application:
a.
Whether
the issue raised in this judicial review is moot;
b.
If
not moot, whether the Decision to deny a deferral of the Applicant’s removal was
unreasonable.
ARGUMENTS
The Applicant
Mootness
[15]
The
Applicant acknowledges that he only requested a deferral of his removal until
June 2012, but submits that a live issue remains to be decided in this
application. He states that the leading authority on the issue of mootness is
the Supreme Court of Canada’s decision in Borowski v Canada (Attorney
General), [1989] 57 DLR (4th) 231 [Borowski]. The Court
said at paragraphs 15-16:
The doctrine of mootness is an aspect of a general
policy or practice that a court may decline to decide a case which raises
merely a hypothetical or abstract question. The general principle applies when
the decision of the court will not have the effect of resolving some
controversy which affects or may affect the rights of the parties. If the
decision of the court will have no practical effect on such rights, the court
will decline to decide the case. This essential ingredient must be present not
only when the action or proceeding is commenced but at the time when the court
is called upon to reach a decision. Accordingly, if, subsequent to the
initiation of the action or proceeding, events occur which affect the
relationship of the parties so that no present live controversy exists which
affects the rights of the parties, the case is said to be moot. The general
policy or practice is enforced in moot cases unless the court exercises its
discretion to depart from its policy or practice. The relevant factors relating
to the exercise of the court’s discretion are discussed hereinafter.
The approach in recent cases involves a two-step
analysis. First, it is necessary to determine whether the required tangible and
concrete dispute has disappeared and the issues have become academic. Second,
if the response to the first question is affirmative, it is necessary to decide
if the court should exercise its discretion to hear the case. The cases do not
always make it clear whether the term “moot” applies to cases that do not
present a concrete controversy or whether the term applies only to such of
those cases as the court declines to hear. In the interest of clarity, I
consider that a case is moot if it fails to meet the “live controversy” test. A
court may nonetheless elect to address a moot issue if the circumstances
warrant.
[16]
The
deferral request involved the interests of an unborn Canadian child, yet the
Officer’s analysis involved no consideration of this. Whether or not the
Officer had a legal obligation to consider this factor is an issue that has yet
to receive proper consideration from this Court. The Applicant submits that
this remains a live issue between the parties, and that the Court ought to
exercise its discretion to consider this application for judicial review for
that reason.
The
Respondent
[17]
The
event which invoked the Applicant seeking a deferral has now passed, and thus
the Respondent submits that this application ought to be dismissed as moot. The
Respondent points out that while Justice Donald Rennie granted a stay, the test
for a serious issue on a stay motion is lower that that for granting leave.
[18]
The
Applicant requested a deferral until June 2012, and because this date has
already passed this application has now become technically moot (see Baron v
Canada (Minister of Public Safety and Emergency Preparedness), 2009
FCA 81 [Baron] at paragraphs 30-31). Based on the decision in Borowski,
above, the Court should not exercise its discretion to hear this matter. The
Respondent submits that this application ought to be dismissed as moot.
STANDARD OF
REVIEW
The
Reasonableness of the Decision
[19]
The
Supreme Court of Canada in Dunsmuir v New Brunswick 2008 SCC 9, held
that a standard of review analysis need not be conducted in every instance.
Instead, where the standard of review applicable to a 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.
[20]
The
standard of review applicable to a deferral request is reasonableness (Ulloa
Meja v Canada (Minister of Citizenship and Immigration), 2012 FC 980 at
paragraph 22). Further, the adequacy of reasons is not a stand-alone basis for
review, but goes to the reasonableness of the Decision as a whole (Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland
Nurses]). The standard of review applicable to the second issue is
reasonableness.
[21]
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, and Canada (Minister of Citizenship and Immigration)
v Khosa 2009 SCC 12 at paragraph 59. 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.”
ARGUMENTS
The Applicant
[22]
The
Applicant submits that the Officer provided no clear reasons or evidentiary
basis for refusing to defer removal, but simply made assumptions as to what
services may be available to the Applicant’s wife. The decision in Newfoundland
Nurses did not remove the legal onus on the Officer to provide reasons
demonstrating how the Officer arrived at his ultimate determination. The
Decision must still be based on specific, relevant evidence.
[23]
In
this case, the Officer engaged in sheer speculation as to agencies that would
be able to adequately provide the Applicant’s wife with the care she needed. There
was no discussion as to which specific health care agencies would be able to
provide these services, what kind of care they could provide, the cost, and how
these agencies would be able to replace the love and support of the child’s
father.
[24]
The
Applicant states that the Officer simply copied the Applicant’s immigration
history and portions of his deferral request into the Notes, and failed to
engage in a real analysis. If the Reasons for the Decision do not allow the
Applicant to understand how it was made then it is unreasonable (Nintawat v Canada (Minister of Citizenship and Immigration), 2012 FC 66 at paragraph 27).
Although CBSA Officers do not have a duty to provide as detailed reasons as
some other decision-makers, they must still provide reasons that meet the Dunsmuir
criteria of transparency, intelligibility, and justification (Canada
(Minister of Citizenship and Immigration) v Varga, 2006 FCA 394 [Varga]
at paragraph 16).
[25]
The
Applicant submits that if the Officer had questions about the Applicant’s
wife’s medical condition he could have asked the Applicant or his legal
counsel. It was unreasonable for the Officer to base his Decision on a lack of
detail when the information was so easily available. The Applicant acknowledges
that the Officer had limited discretion to award the deferral, but submits that
the Officer still had an obligation to give serious consideration to the
Applicant’s submissions.
[26]
Further,
the Notes are silent on the Applicant’s unborn Canadian child. Article 3(1)
of the Convention of the Rights of the Child provides that the best
interests of a child must be a “primary consideration” in all actions
concerning children. The law states that this must be taken into account (see Hawthorne v Canada (Minister of Citizenship and Immigration), 2002 FCA 475
at paragraph 32; Baker v Canada, [1999] 2 S.C.R. 817). The Officer was not
“alert, alive, and sensitive” to the best interests of the child by simply
stating that she took the interests of the child into account. The Applicant
submits that at the very least the Officer should have embarked on some
analysis of the impact of the Applicant’s departure on his wife’s pregnancy and
the unborn child.
[27]
The
Applicant submits that the Officer’s key findings were based on assumptions,
and the Officer ignored criteria that were legally mandated to be considered –
the best interests of the Applicant’s unborn child. As such, the Decision is
unreasonable.
The
Respondent
[28]
The
Respondent submits that the Officer considered all the Applicant’s submissions,
such as the fact that his wife was seven months pregnant, before dismissing the
deferral request. It was reasonable for the Officer to assume that the
Applicant’s wife, who is a permanent resident, would have access to Canadian
social services and public healthcare during his absence.
[29]
The
Newfoundland Nurses decision, above, reiterated that reasons are not
decided in a vacuum and do not need to be comprehensive; the context of the
evidence, the parties’ submissions, and the process must be considered. The
reviewing court must pay attention to the decision-maker’s statutory task in
determining if the reasons adequately explain the basis of the decision.
[30]
The
Federal Court of Appeal noted in both Varga and Baron, above,
that the duty of enforcement officers to consider the best interests of the
child is at the low end of the spectrum. The discretion involved in the
decision is narrow; a CBSA Officer is not under an obligation to substantially
review a child’s best interests before coming to a decision. In this case, the
Officer was aware the Applicant’s wife was seven months pregnant. While the
Notes may not have explicitly mentioned the unborn child, if one considers the
nature of the Officer’s statutory task under subsection 48(2) of the Act this
is not something that ought to call the Decision into question.
[31]
Section
48 of the Act gives enforcement authorities little discretion to award a
deferral. They are under an obligation to execute a removal order as soon as
reasonably practicable. The narrow scope of an enforcement officer to defer
removal was affirmed by the Federal Court of Appeal in Baron. The law is
clear that removal is the rule, while deferral is the exception (see also Canada (Minister of Public Safety and Emergency Preparedness), 2011 FCA 286 at
paragraph 45; Padda v Canada (Minister of Citizenship and Immigration),
2003 FC 1081 at paragraphs 7-9).
[32]
The
Respondent submits it was reasonable for the Officer to conclude there was no
evidence provided that only the Applicant was able to take care of his wife
while she was on bedrest. It was also reasonable for the Officer to note that
she would have access to publicly available services. The Decision falls within
a range of possible and acceptable outcomes, and the Respondent submits that
this application ought to be dismissed.
ANALYSIS
[33]
The
Applicant has made extensive submissions on reviewable error, but there is
significant repetition in many of the points raised. I will deal with what I
regard as the principal issues.
No Real Reasons or Clear Evidentiary
Basis for the Refusal
[34]
In
my view, the reasoning and the basis of the Decision are clear: the Applicant
failed to provide sufficient evidence to convince the Officer that, given the
medical support the Applicant’s wife had received to that time, and given the
medical and social assistance available to her in Canada, the Applicant’s
presence was not required for the duration of her pregnancy. The evidentiary
basis for this conclusion was the lack of evidence provided by the Applicant to
demonstrate that he was the only person who could look after his wife.
No Analysis
[35]
The
Reasons do not have to be detailed. See Boniowski v Canada (Minister of Citizenship and Immigration), [2004] FCJ No 1397 (FC); Turay v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FC 1090. In
this case, the analysis is both transparent and justifiable. The Applicant
failed to provide sufficient evidence as set out above. General H&C factors
are not relevant to the Officer’s discretion under section 48 of the Act, and they
did not need to be addressed in the analysis. They were also not part of the
deferral request.
Failure
to Confront Applicant With Questions and Give Him a Reasonable Chance to
Respond
[36]
The
onus is upon the Applicant to provide the evidence and justification for his
deferral request. See Williams v Canada (Minister of Public Safety and
Emergency Preparedness), 2010 FC 274 at paragraph 30. The Officer does not
have to ask questions or supply the evidence as to why the request should be
approved. The Officer is under a statutory obligation to remove the Applicant
as soon as reasonably practicable. It is for the Applicant to convince the
Officer that his removal is not reasonably practicable and that a deferral is
required. The Officer is under no obligation to conduct an interview or a
discussion with the Applicant over his request. See John v Canada (Minister of Citizenship and Immigration), [2003] FCJ No 583 (TD). The Applicant
had every opportunity to provide the Officer with his evidence and arguments.
He was also represented by counsel, who made the request.
Officer
Engaged in Speculation About Medical Requirements and Health Care Resources
Available to the Applicant’s Wife
[37]
In
my view, there was no speculation. Once again, the issue was whether the
Applicant had provided sufficient evidence to demonstrate that his removal was
not reasonably practicable because of his wife’s pregnancy and medical
complications.
[38]
As
the reasons make clear, Dr. Ou’s letter did not “specify the nature and gravity
of these complications. He only indicates that she requires bed rest until
delivery and that she needs her husband to take care of her at home until
delivery.” The Officer accepted Dr. Ou’s evidence on complications, but there
was not sufficient evidence to show that the Applicant was the only person who
could provide care.
[39]
The
Officer also points out that the Applicant’s wife was already in contact with
doctors and specialists who would deal with her medical issues. There was
nothing to suggest, given Canada’s health care and social system, that the
Applicant’s wife would not receive the health care and assistance that she
needed. The Applicant provided no evidence to suggest that her needs could not
be met by the health care and social assistance available to her.
[40]
Given
the nature of the deferral request, the sparcity of the evidence submitted by
the Applicant (there were no affidavits from him or his wife explaining their
personal situation), and the ambivalence and the lack of explanation in Dr.
Ou’s letter, it cannot be said that the Decision was unreasonable on this
ground. Other conclusions may have been possible, but the Decision falls within
the Dunsmuir range. In my view, this is the principal issue on the
merits and the Applicant has not established unreasonableness.
Faiture to Consider the Unborn
Child
[41]
The
deferral request simply asked for a deferral until June 2012. Nothing was said
in the request about the interests of the unborn child. It is not within a
deferral officer’s jurisdiction to undertake a full H&C analysis involving
the best interests of a child. The jurisprudence of this Court is clear that
the Officer need only consider “short-term” interests. See Varga v Canada (Minister of Citizenship and Immigration), 2006 FCA 394, 277 DLR (4th) 762 at
paragraph 16; and Baron v Canada (Minister of Public Safety and Emergency
Preparedness), 2009 FCA 81 at paragraph 57. In this case, no short-term
interests were identified by the Applicant in the deferral request. They still
have not been identified before me.
Failure to Consider H&C Factors
[42]
As
set out above, the Officer is not required to do an H&C analysis. The issue
is whether the Applicant’s removal is reasonably practicable under section 48
of the Act. No H&C factors were put forward for consideration in the
deferral request. See Fernandez v Canada (Minister of Citizenship and
Immigration ), 2012 FC 1131; Chetaru v Canada (Minister of Public Safety
and Emergency Preparedness), 2009 FC 436.
Mootness
[43]
The
Applicant says that the application is not moot because “the deferral request
encompassed the consideration of the unborn child.” This is simply inaccurate.
The deferral request says nothing about the interests of the unborn child and,
even if it did, it could only relate to the period of the deferral requested,
which was until June 2012.
[44]
At
the hearing before me, the parties agreed that this matter is technically moot
within the meaning of Borowski, above. The only issue for me is whether
the Court should nevertheless exercise its discretion to hear the matter. The
present case is very similar to De Aguiar v Canada (Minister of Citizenship
and Immigration), 2009 FC 456 (CanLII) where Justice O’Reilly had the
following to say, at paragraphs 5-9, of equal relevance to the facts before me:
In these
circumstances, the Minister urges me to conclude that this application for
judicial review is moot because the applicants have already achieved a deferral
of their removal beyond the date on which their H&C was decided, even
though the officer had denied them one. Further, there is no point, the
Minister suggests, in deciding whether the officer's decision was reasonable
since any conclusion I would arrive at would have no practical effect. The
applicants will be re-scheduled for removal no matter what I decide.
I agree.
The question
of mootness must begin with a characterization of the controversy between the
parties: Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81.
Here, on March 11, 2008, the applicants asked for a deferral of their removal
to allow them “an opportunity to remain pending the outcome of [their] H&C
Application”. They attached a variety of materials to their request outlining
the medical and psychological needs of their Canadian niece and her 12-year-old
son. This evidence was relevant to their H&C application.
As the
applicants themselves characterized it, the issue before the enforcement
officer was whether their removal should be deferred pending the outcome of
their H&C. Since the H&C has now been decided, there is no longer a
live controversy between the parties (see Baron,
above at para. 31, citing Amsterdam v. Canada (Minister of Citizenship and Immigration) 2008 FC 244).
The
applicants argue that, even if I were to find that their application was moot,
I should exercise my discretion to decide the case on its merits in order to
give guidance to enforcement officers on the exercise of their discretion to
defer removal. In my view, Justice Marc Nadon of the Federal Court of Appeal
has already provided a great deal of guidance on this question in Baron, above, and there is no need for me to say anything
more.
[45]
In
the present case, there is no live issue between the parties. In effect, the
Applicant has now received the deferral he requested as a result of the actions
of this Court. Also, there are no legal issues that arise on these facts that
require the Court to proceed beyond mootness. See Borowski, above.
Conclusions
[46]
For
the reasons given above, I find that this application is entirely moot and
should be dismissed on this basis alone. Even if I consider the merits,
however, I can find no reviewable error in the Officer’s Decision.
[47]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
The
application is dismissed.
2.
There
is no question for certification.
“James Russell”
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