Date: 20110615
Docket: IMM-5562-10
Citation: 2011 FC 685
Ottawa, Ontario, June 15, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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JANELLE MARIA FAISAL
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Applicant
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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
I. Overview
[1]
On
September 25, 2010, the Federal Court granted the Applicant’s motion for a stay
of removal from Canada until the final determination of this judicial review.
In her decision, Justice Marie-Josée Bédard stated:
I am also satisfied that the Applicant
and her children would suffer irreparable harm if she were to be deported to
Saint-Lucia before the custody issues regarding her two older daughters are
resolved in an adequate manner. Considering the Applicant’s personal situation,
her decision to leave her two oldest daughters in Canada is in their best
interest and she cannot simply leave Canada without securing adequate
custody arrangements for them, which will involve making the appropriate legal
arrangements. [Emphasis added].
[2]
The
same Justice
Bédard
also granted the application for leave in respect of the Removals Officer’s
decision on March 9, 2011.
[3]
In
her two-pronged request for an administrative stay, the Applicant asked that
her removal be deferred until the humanitarian and compassionate (H&C)
application is considered or, in the alternative, the custody arrangements
are finalized. On September 22, 2010, the acting supervisor at the Canada
Border Services Agency (CBSA) refused the Applicant’s request for an
administrative stay. The second prong of the request in regard to the judicial
review considered by the Court is still a “live issue” as the Court was
informed that the H&C had been decided with news to that effect having been
received by both counsel the week of the hearing of the judicial review.
II. Judicial Procedure
[4]
The
Applicant filed an Application for judicial review pursuant to section 72(1) of
the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA), of a
September 22, 2010 decision rendered by a CBSA Removals Officer, wherein the
Removals Officer rejected the Applicant’s request for an administrative stay of
removal.
III. Background
[5]
The
Applicant, Ms.
Janelle Maria Faisal, was born on
July 6, 1987 and is a citizen of Saint-Lucia.
[6]
Ms. Faisal
arrived in Canada on September 12, 2004, at the age of 17. She submitted a
refugee claim, principally alleging that she had been abused by her former
common law spouse. Her claim was denied by the Immigration and Refugee Board (IRB)
on November 21, 2005. On June 9, 2009, Ms. Faisal filed a
Pre-Removal Risk Assessment (PRRA) application which was refused on September
15, 2009. On April 9, 2010, Ms. Faisal submitted a H&C application claiming
that it was in the best interests of her three Canadian-born children, ages 5,
3 and 9 months, that she stay in Canada. The H&C application was still
pending (until news was received as is described in paragraph 3 in the
Overview).
[7]
On
July 20, 2010, Ms. Faisal was informed by a Removals Officer that her
removal was scheduled for September 26, 2010. Ms. Faisal then decided
to leave her two oldest children in Canada. The father of her oldest child, who
she had alleged in her refugee proceeding was persecuting her, lives in Saint-Lucia,
while the father of her 3-year-old has shown no interest in caring for his
child.
[8]
According
to Ms. Faisal, two
Canadian citizens are willing to care for her children: Mr. McEnroe Thomas, her
current common law spouse, and Ms. Olga Prescott, her former
mother-in-law. In order to ensure that her children can be cared for by either
one of these individuals, the Applicant stated that she must first obtain full
custody of her children and then give Mr. Thomas or Ms. Prescott legal
guardianship of the children. The Applicant states that she must be present for
the duration of these custody and guardianship proceedings.
[9]
Ms. Faisal’s
appointment with regard to her children’s custody was scheduled for September
23, 2010. The Applicant stated that she had missed an earlier-scheduled
appointment, on September 2, 2010, because she had attempted suicide.
IV. Decision under Review
[10]
The
Removals Officer based her decision to refuse the deferral request on the lack
of relevant documentation:
… Although it is asked of the court to
grant custody of the child there is no documentation to show that your client
does not have custody of that child or that the father is asking for full
custody. As far as CBSA is concerned custody is not an issue that prevents
removal.
(Removals Officer’s Decision,
Applicant’s Record (AR) at p 7).
[11]
With
regard to the best interest of the children, the officer states:
Your client’s children are young, 5 years
old or younger. Children that age are very adaptable and nothing was provided
to show that they are unable to do so. On the other hand, the children are
Canadian citizens and they can remain in Canada. Since Mr Thomas has been part of the children’s life he
could take care of the children until your client returns to Canada through
proper channels…
(Removals Officer’s Decision,
AR at p 9).
V. Position of the Parties
[12]
The
Applicant submits that the Removals Officer made a reviewable error by failing
to consider the immediate and future well-being of the children. The Officer
clearly erred in stating that she can simply leave the children in the care of Mr. Thomas
without settling the custody issue through proper legal channels. Mr. Thomas is not the
father of either of the children who will be remaining. As a result, the
Officer failed to exercise her discretion appropriately and failed to be alert,
alive and sensitive to the best interest of the children as was required.
[13]
The
Respondent submits that the litigation with regard to the custody of the
children can continue regardless of where the Applicant is located. She can
provide instructions through counsel, and by affidavit evidence,
teleconference, or videoconference, with the Court’s permission. These modes of
participation essentially amount to her presence at the proceedings. According
to the Respondent, the Removals Officer has limited discretion over the matter
and her decision was reasonable. (To which it was made clear during the hearing
that the children in the meantime are not assured of any place or any person
with whom to stay until such custody arrangements would be finalized.)
VI. Issue
[14]
Did
the Removals Officer properly exercise her discretion with respect to the
Applicant’s deferral request, particularly with regard to the interests of the
Applicant’s Canadian children?
VII. Relevant Legislative Provisions
[15]
Section
48 of the IRPA is relevant to the present case:
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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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VIII. Standard of Review
[16]
The Federal Court of Appeal made it clear in Baron that the
reasonableness standard of review applies to decisions of enforcement officers
(Baron v Canada (Public Safety and Emergency Preparedness), 2009 FCA
81, 176 ACWS (3d) 490 at para 25). Where the reasonableness standard applies,
reviewing courts cannot substitute their own appreciation of the appropriate
solutions, but must rather determine if the outcome falls within “a range of
possible, acceptable outcomes which are defensible in respect of the facts and
the law” (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para
47). There might be more than one reasonable outcome (Dunsmuir; Canada
(Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1
SCR 339).
IX. Analysis
[17]
Subsection 48(2) of the IRPA requires that a removal order
“be enforced as soon as reasonably practicable”. Removals Officers have the
authority to defer execution of a removal order only in very limited
circumstances such as those arising just prior to the removal date. Any matter
in regard to a H&C is not, in any case, in and of itself, a basis to
request to defer removal. The Court has made it clear that enforcement officers
have limited jurisdiction and that is in regard to the timing of removal (eg.
Extension of time for school year completion, essential medical treatment,
etc.) (Munar v Canada (Minister of Citizenship and Immigration), 2005 FC
1180, [2006] 2 FCR 664). The matter is considered by the Court in regard to the
custody arrangements to which reference is made by Justice Bédard in
paragraph 1 of this decision. Thus, the “live issue” is in respect of the
custody arrangements for the children, recognizing that procedures have been
set in motion for that to be effected.
[18]
In
her decision, the Removals Officer reviewed all the evidence submitted by the
Applicant. She stated that “[n]o documentation has been submitted to show that
a third party is or will be seeking custody of the children” (Removals
Officer’s decision, AR at p 7). Furthermore, the Officer examined the
documentary evidence to determine if there would be help available for the
Applicant should she go back to Saint-Lucia with her three children; however,
recognizing the medically documented hospital report (Tribunal Record (TR) at p
28) on the suicidal past of the Applicant and that the custody of the
children has, as yet, not been transferred to non-family members, the excerpt
from the decision below is not considered reasonable by the Court.
[19]
The
Applicant herself submitted that her life would be in danger if she is to
return to Saint-Lucia because she had recently attempted suicide and is
considered to be in “dire need” of psychiatric care and “treatment” as stated
in a medical report from a renowned specialized psychiatric hospital; and is,
therefore, considered too unstable due to depression and post-traumatic stress
disorder to be removed, all of which is documented (TR at p 28).
[20]
The
lack of reasonableness is evident in that the highly specialized psychiatric
hospital which gave the report details the peril of the Applicant as a patient.
It is not one with which to trifle. The Removals Officer did not address all
the significant or primordial issues. Thus, the decision reviewed is
unreasonable as the mother and the children are considered at risk.
X. Conclusion
[21]
The
Removals Officer erred in law failing to defer removal from Canada, due to a
significant exception (in respect of the Applicant who has been confirmed as “suicidal”
by a specialized medical hospital facility in that regard, and that coupled
with the perception of legal procedures, as yet unconcluded in regard to the
custody of her children) which did arise and would amount to a reason for
deferral of the execution of the removal.
[22]
For
all of the above reasons, the Applicant’s application for judicial review is
granted and the matter is remitted for redetermination by a different Removals
Officer.
JUDGMENT
THIS COURT
ORDERS that the Applicant’s application for
judicial review be granted and the matter be remitted for redetermination by a
different Removals Officer. No question for certification.
Obiter
This is a matter
unique unto itself. The combination of suicidal tendencies of the Applicant are
significantly coupled and attributed to her preoccupation in respect of the
welfare of her children, that legal custody arrangements be ascertained before
her own departure from Canada. The case of the Applicant is only unique due to
point specific evidence; otherwise, it would not be unlike any other case of an
unwed mother, without status in Canada, due to a situation, often categorized
as one of her own making. In that, she finds herself between a rock and a hard
place, either returning with her children to her country of origin where she
has no moral, financial and social support or on the other, leaving her
children in Canada, without a certain future, outside of any legal custody
arrangements. Why is this case different from other cases, categorized in the
above- described manner? The Applicant, due to the support of significant
detailed evidence from the United Church of Canada, school, medical and specialized
hospital reports, has demonstrated that she has turned her life around entirely
in the last five years to give a future to her children by preparing herself to
become an asset to them and to society.
From an immature
teenager to a mother, who recognizes the position that she must fill, her
transition from someone alone to that of an aspiring responsible woman is shown
through the evidence. She acknowledges in acts that she must prepare to be
financially and independently responsible for her children through education,
community and psychological strengthening, all for which she has worked as
arduously as she could in her circumstances. If the evidence is truly examined
and not simply set aside by pushing paper, it appears that this is a case that
requires a second look by a removals officer for deferral of her departure, or
even for one more H&C to be effected; however, subsequent to the Court’s
decision, this is only one obiter of one judge whose jurisdiction was
completed, or over, before the obiter was begun. Yet, it is hoped that an
opinion outside of this Court’s jurisdiction is, at least, taken into
consideration, in recognizing that a potential suicide of an Applicant is not
an option. That is, it can be averted by an understanding of a decision-maker,
who does have it within his or her jurisdiction, to make a difference within
his or her respective legal framework, not outside of it. To do so, requires ensuring
that the evidence in its entirety has been truly read and assessed in regard to
that jurisdiction; that can only be done, if paper is not simply pushed aside
to have one more case done with; but recognizing, if need be, an exception
within the very confines of the jurisdiction, itself, is acknowledged for what
it is, rather than dismissed out of hand. (Inspiration may perhaps be drawn
from the recent film “Precious” drawn from actual events, wherein a young woman
turned her life around in an exceptional manner for the sake of her children.)
“Michel
M.J. Shore”
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