Date: 20090430
Docket: IMM-3616-08
Citation: 2009 FC 436
Ottawa, Ontario, April
30, 2009
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
SORJNARAINE CHETARU
GUNAWATTIE CHETARU
Applicants
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Sorjnaraine Chetaru and his wife, Mrs. Gunawattie Chetaru (collectively the
“Applicants”) seek judicial review of the decision of the Enforcement Officer
made on May 30, 2008 and communicated to the Applicants on August 1, 2008,
refusing the Applicants’ request for deferral of their removal from Canada.
[2]
The
Applicants are citizens of Guyana of Indo-Guyanese ancestry. They entered Canada on May 30,
2006 and subsequently claimed refugee protection pursuant to the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”), on June 14, 2006.
On that day, a deportation order was issued against the Applicants since they
were the subject of a section 44 Report under the Act.
[3]
The
Applicants’ refugee claims were refused on August 13, 2007. Their Pre-Removal
Risk Assessment (“PRRA”) applications were refused on April 4, 2008. As of that
date, the removal order against them became effective and their removal was
scheduled for June 7, 2008.
[4]
The
Applicants submitted a deferral request on May 12, 2008, on the grounds that
their application for permanent residence in Canada on
humanitarian and compassionate grounds (“H & C application”) was undecided.
That application was initially received in December 2007 but because the fees
had not been paid, the Applicants were required to re-submit their application.
The application was received again on February 19, 2008. The request was
refused on May 27, 2008.
[5]
The
Applicants made a second deferral request on May 28. Again, the basis for this
request was their H & C application. An interim stay of removal was granted
by Mr. Justice Campbell on June 5, 2008 upon terms that allowed the Applicants
to make further submissions to the removals Officer. The interim stay was to
remain in effect until June 20, 2008. The stay was granted in cause number
IMM-2507-08.
[6]
On
June 27, 2008, the Applicants presented further documents and submissions. In
particular, they reiterated that they based their request for deferral upon
their outstanding H & C application and further, they requested that the
processing of the application be expedited. In the request for a deferral of
removal that was made on May 12, 2008, former Counsel for the Applicants had
also asked for expeditious processing of the H & C application.
[7]
In
due course, the removal of the Applicants was rescheduled for September 9,
2008. The Applicants commenced the within proceeding on August 8, 2008, seeking
to review the last refusal of the Enforcement Officer to defer their removal.
That decision was received by the Applicants on August 1, 2008 and the
Officer’s Notes were received on August 6, 2008. In the decision, the request
for deferral was again denied.
[8]
On
September 5, 2008, Justice Dawson granted a stay of removal pending final
disposition of this application for leave and judicial review.
[9]
In
their initial submissions, both written and oral, Counsel for the Applicant and
the Minister of Public Safety and Emergency Preparedness (the “Respondent”) each
addressed the issue of mootness following the analytical approach set out in Borowski
v. Canada (Attorney
General),
[1989] 1 S.C.R. 342 and argued that the Court should exercise its discretion
and hear the matter on the merits.
[10]
The
Applicants submitted that, in a review on the merits, the decision of the
Officer is unreasonable. For his part, the Respondent argues that the decision
meets the standard of reasonableness.
[11]
Following
release of the decision of the Federal Court of Appeal in Baron v. Canada (Minister of
Public Safety and Emergency Preparedness), 2009 FCA 81, the
parties were given the opportunity to make further submissions. Each party did
so.
[12]
In
that decision, the Federal Court of Appeal concluded that an application for
judicial review of a decision of a removals officer refusing to defer a removal
is not moot by virtue of the passage of the removal date when the basis for the
deferral request is an undecided application for administrative action, in this
case, an outstanding H & C application. In Baron the Federal Court
of Appeal found that when an H & C application is the basis for the request
to defer removal and that application remains outstanding, the application for
judicial review is not moot.
[13]
In
Baron, the Federal Court of Appeal reviewed the prior jurisprudence
concerning the limited discretion of a removal officer to defer removal
pursuant to section 48 of the Act, that is the decisions in Wang v. Canada
(Minister of Citizenship and Immigration), [2001] 3 F.C. 682 (T.D.) and Simoes
et al v. Canada (Minister of Citizenship and Immigration) (2000), 187
F.T.R. 219 and confirmed the principle that the discretion is a limited one,
having regard to the statutory purposes and statutory scheme.
[14]
In
the present case, both parties rely on the decision in Baron. The
Applicants argue that in Baron, the Court noted that as in Wang,
an outstanding H & C application could be the basis for deferring removal
when there are “special considerations”. They allege that such “special
considerations” exist in this case, specifically the need for their continued
presence in Canada until a
decision on their H & C application so that they may provide assistance and
leave to sick family members, that is the mother and sister of the female
applicant.
[15]
For
his part, the Respondent acknowledges that family hardship is the sole basis
for the Applicants’ H & C application, noting that no allegation of
personal risk or inhumane treatment is advanced should the Applicants be
removed from Canada prior to a
decision on the H & C application. In these circumstances, he submits that
a deferral is not warranted, in light of the clear statutory duty to execute a
valid removal order as soon as reasonably practicable.
Discussion and
Disposition
[16]
The
decision under review is one involving the exercise of discretion, even if it
is limited, by a statutory decision maker. Pursuant to the decision in Dunsmuir
v. New Brunswick, [2008] 1 S.C.R. 190, this decision attracts review
on the standard of reasonableness. This standard was applied by the Federal
Court of Appeal in Baron.
[17]
The
prior jurisprudence has made it clear that the existence of an outstanding H
& C application is not sufficient to warrant a positive exercise of
discretion by a removals officer to defer removal. The point was addressed in Wang
and Simoes, two decisions that were reviewed by the Federal Court of
Appeal in Baron.
[18]
It
is clear from the prior jurisprudence that a removals officer is not required
to conduct a “mini” H & C assessment when dealing with a request to defer
removal. It is also clear that in assessing an application to defer, the
officer must assess the reason for the request and the evidence submitted to
support it. These elements were addressed by the Court in Simoes when
the Court noted as follows:
11 I am in complete agreement with the view expressed by
Dawson J. In my opinion, Baker does not require a removal officer to undertake
a substantive review of the children's best interests, including the fact that
the children are Canadian. This is clearly within the mandate of an H&C
officer. To "read in" such a mandate at the removals stage would, in
effect, result in a "pre H&C" application, which in my opinion,
is not what the law requires. Section 48 of the Immigration Act provides the
following: "Subject to sections 49 and 50, a removal order shall be
executed as soon as reasonably practicable." Sections 49 and 50 deal with
statutory stays of execution in certain defined circumstances; for instance,
where an applicant has filed an appeal which has yet to be heard and disposed
of, or where there are other proceedings.
[19]
Although
the H & C application in Simoes related to children, the case stands
for the principle that an enforcement officer is not required to address the
merits of an H & C application when assessing a request to defer removal.
[20]
In
the present case, the personal circumstances of the Applicants invite sympathy.
However, on the basis of the evidence submitted to the Enforcement Officer, together
with the written submissions presented to him on behalf of the Applicants, I am
not persuaded that he committed a reviewable error. I am not satisfied that he
ignored or misunderstood the evidence that was presented to him. The
Enforcement Officer was not required to conduct a preliminary or “mini” H &
C assessment. It is not the Court’s role to do so either.
[21]
In
the result, this application for judicial review is dismissed. There is no
question for certification arising.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is dismissed, no question for certification
arising.
“E.
Heneghan”
Email this Content