Date: 20110421
Docket: IMM-4153-10
Citation: 2011 FC 486
Ottawa, Ontario, April 21,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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AHMED KORAYEM
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of the July 13, 2010 decision of an
Enforcement Officer (the Officer) of the Canadian Border Services Agency (CBSA),
rejecting the Applicant’s request for deferral of his removal from Canada until his
humanitarian and compassionate (H&C) application is determined.
[2]
Based
on the reasons below, this application is dismissed.
I. Background
A. Factual
Background
[3]
The
Applicant, Ahmed Korayem, is a citizen of Egypt. He came to
Canada on a student
visa in 1999 for pilot training at the Brampton Flight Centre. In June 2000,
the Applicant began renting a room in the home of the Aguero family. The Aguero
family consisted of Mrs. Aguero, an
immigrant from Peru, her eldest daughter Claudia, who was born in
Argentina but came to Canada as a four year old, and her two sons, Paul
and Michael who were both born in Canada.
[4]
When
his student visa expired in September 2000, he returned to Egypt to renew his
Egyptian passport and his Canadian student visa. He returned to Canada in October
2001 and resumed living with the Aguero’s. Affidavits of the Applicant and all
three of the Aguero children explain how the Applicant’s role in the family
evolved over the years from being a mere tenant to acting as an older brother
figure.
[5]
In
March 2002, the Applicant made a refugee claim. The Applicant claimed that he
had spent all of his money trying to become a pilot in Egypt. However,
he was unable to pass the exams and was asked to leave the school. His family
was allegedly very ashamed of him. The claim was denied in April 2003. His
application for leave and judicial review of that decision was denied in
September 2003. In October 2004, the Applicant submitted a Pre-Removal Risk
Assessment (PRRA) application. He received a negative decision in May 2005.
Consequently, the Applicant received a direction to report for removal June 5,
2005. However, the Applicant failed to report for removal and a warrant was issued
for his arrest.
[6]
In
his affidavit, the Applicant claims to have over-stayed with the intention of
re-applying for permanent residency. However, in October 2005 the Aguero
family was involved in a car accident. Mrs. Aguero was killed. Her three children
survived.
[7]
Claudia,
who was 20 at the time of the accident, obtained full legal guardianship of her
two minor brothers. Although she was a college student with no income, she
also inherited her mother’s financial liabilities. The Applicant claims to
have stepped in to offer financial and emotional support to the family with the
goal of keeping the family together in their home. By all accounts, it is at
this time that the Applicant became an integral part of the Aguero family. He
worked full time in the construction industry and attended college part-time,
graduating as a Project Manager from Humber College in June 2009.
In 2009 he also married Melissa Lopez Casanova, an American citizen.
[8]
The
Applicant’s successful evasion of immigration authorities ended in January 2010
at which point a warrant was executed for his arrest. He came to the attention
of the CBSA when he was charged with Domestic Assault. The Applicant was
granted bail, but was detained by CBSA until March 31, 2010. On April 8, 2010
the Applicant filed an application for Permanent Residence on H&C grounds.
[9]
In
June 2010, the Applicant was directed to report for removal on July 23, 2010.
He requested a deferral of his removal. This request was denied on July 13,
2010. This is the decision presently under review.
B. Impugned
Decision
[10]
The
Applicant based his deferral request on:
(a) The best interests of the Aguero
children;
(b) The outstanding H&C
application;
(c) The
intent of the Applicant’s spouse to submit a spousal sponsorship application
once she is approved for permanent residency through the skilled workers
program;
(d) The outstanding application for
a United States Visa from within Canada;
(e) Establishment in Canada;
(f) Risk/undeserved hardship in Egypt.
[11]
The
Officer noted that the Applicant was under an enforceable removal order and
that the CBSA has a statutory obligation to enforce removal orders as soon as
is practicably possible – customarily as soon as a negative PRRA decision is
delivered. The Applicant was given his negative PRRA decision in May 2005.
[12]
The
Officer noted that he had little discretion to defer removal, and that this
discretion had to be exercised while continuing to enforce a removal order as
soon as reasonably practicable.
[13]
The
Officer sympathized with the situation of the Aguero family, but noted that the
children were, at the time of the decision, 26, 20 and 18, and therefore all
legal adults in Ontario. The Officer acknowledged that the removal
would be very difficult for the Aguero’s, but that they would continue to
reside in Canada with each
other, and have access to a broad range of programs offered by the Canadian
government. He was not satisfied that a deferral was warranted on the ground
of the best interests of the Aguero children.
[14]
There
was insufficient evidence to demonstrate that a decision on the H&C
application was imminent. Furthermore, the submission of an H&C
application, in and of itself, is not an impediment to removal and does not
warrant a deferral of removal. The Officer concluded that the Applicant’s
H&C application would continue to be processed even after his removal to Egypt. Similarly,
the intent to submit a spousal sponsorship application was not, in and of
itself, an impediment to removal. As for the outstanding application for a U.S. visa from
within Canada, which the Officer noted was only mailed to the U.S. consulate on
May 12, 2010, there was no evidence that a decision was imminent. As a result,
the Officer was not satisfied that a deferral of removal was warranted on any
of these grounds.
[15]
The
Officer acknowledged that the Applicant is an active and respected member of
his community who has resided with the Aguero family continuously since 2005.
However, he submitted a PRRA application in October 2004. At that time he was
informed that a determination on his PRRA application would be made in three to
six months and that should the decision be negative he would be expected to
confirm his departure from Canada in two to three weeks. The timeframe was
made clear to the Applicant so that he could make appropriate arrangements for
himself and his family members. The Applicant had ample time to prepare for
his potential removal from Canada. Consequently, the Officer was not
satisfied that a deferral of removal was warranted on this ground.
[16]
As
for the risk associated with returning to Egypt, the Officer
determined that they had previously been considered by the Immigration and
Refugee Board (IRB) and a PRRA officer. He was not satisfied that any alleged
risk was new or sufficiently personalized. The Officer again referred to his
limited discretion, and concluded that he could only defer removal if it would
expose the Applicant to a risk of death, extreme sanction, or inhumane
treatment and based on the information provided he was not satisfied that a
deferral of removal was warranted. He concluded that there was no impediment
to the removal of the Applicant.
C. Federal
Court Stay Decision
[17]
The
Applicant was granted a stay of removal pending the outcome of this application
by Justice Russel Zinn on July 22, 2010.
II. Issues
[18]
The
Applicant raises the following issues:
(a) Whether
the Officer erred by concluding that the test for irreparable harm was not met;
(b) Whether
the Officer should have based his decision on the best interest of the Aguero
family and the well being of the children;
(c) Whether
the Officer should have based his decision on the fact that the Applicant is a
member of the Aguero family;
(d) Whether the Officer should have based
his decision on any hardship to the Aguero family;
(e) Whether
the Officer neglected to consider any hardship the Applicant would face if he
returned to Egypt before a
decision was rendered on the H&C application;
(f) Whether
the Officer erred in not finding that the stay for removal should have been
granted pending the Application for Canadian Permanent Residence based on
Humanitarian and Compassionate grounds;
(g) Whether
the Officer, in light of his decision, ought to have made a finding that there
was: a) a serious question to be determined, b) irreparable harm, and c)
balance of convenience favours the Applicant;
(h) Whether
the Officer erred by concluding that the Aguero family will be provided with
government assistance.
[19]
Considering
that this is an application for judicial review of a decision refusing to defer
removal, the issues properly before the Court are best summarized as:
(a) Did the Officer fetter his
discretion?
(b) Did
the Officer fail to consider the relationship of the Applicant to, and unique
circumstances of, the Aguero family?
(c) Did
the Officer fail to consider hardship to the Applicant if he were returned to Egypt prior to the
consideration of his H&C application?
(d) Did the Officer consider the
pending H&C application?
III. Standard
of Review
[20]
The
appropriate standard of review to apply to the Officer’s decision refusing to
defer the Applicant’s removal from Canada is the standard of
reasonableness (Baron v Canada (Minister of Public
Safety and Emergency Preparedness), 2009 FCA 81, [2010] 2 FCR 311 at para
25). Judicial deference to the decision is appropriate where the decision
demonstrates justification, transparency and intelligibility within the
decision making process, and where the outcome falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
IV. Argument
and Analysis
Preliminary
Matter – Affidavit Included Evidence Not Before the Decision Maker
[21]
The
Respondent requests that material filed as part of the affidavit of Erona
Naraine dated August 18, 2010 be struck since it was not before the
decision-maker.
[22]
As
argued by the Respondent, this evidence, consisting of a copy of an excerpt from
a UK Border Agency Country of Origin document, is irrelevant for judicial
review. It was not before the Officer, and therefore should not be considered
by this Court. Additional evidence may be submitted on issues of procedural
fairness and jurisdiction only (Dezameau v Canada (Minister of
Citizenship and Immigration), 2010 FC 559, 369 FTR 151 at para 13).
Accordingly, this evidence is struck from the record.
A. Did
the Officer Fetter his Discretion?
[23]
The
Federal Court of Appeal recently reviewed the discretion of a removal officer
to defer removal in Baron, above. The law is clear that an enforcement
officer’s discretion to defer removal is very limited. In determining when it
is “reasonably practicable” for a removal order to be executed, a removal
officer might consider such things as illness, other impediments to traveling,
and pending H&C applications that were brought on a timely basis but have
yet to be resolved due to backlogs in the system. The mere presence of an
H&C application does not constitute a bar to removal (Baron, above,
at paras 49 and 50. See also Simoes v Canada (Minister of
Citizenship and Immigration.), [2000] FCJ No 936 (TD) (QL), 7 Imm LR
(3d) 141, at para 12).
[24]
In
Baron, above, at para 51 the Court of Appeal was unable to improve upon
the decision of Justice J.D. Denis Pelletier in Wang v Canada (Minister of
Citizenship and Immigration), [2001] 3 FC 682 (FC) describing the
limits of a removal officer’s discretion:
-There are a range of factors that can
validly influence the timing of removal on even the narrowest reading of
section 48, such as those factors related to making effective travel
arrangements and other factors affected by those arrangements, such as
children's school years and pending births or deaths.
-The Minister is bound by law to
execute a valid removal order and, consequently, any deferral policy should
reflect this imperative of the Act. In considering the duty to comply with
section 48, the availability of an alternate remedy, such as a right to return,
should be given great consideration because it is a remedy other than failing
to comply with a positive statutory obligation. In instances where applicants
are successful in their H&C applications, they can be made whole by
readmission.
-In order to respect the policy of the
Act which imposes a positive obligation on the Minister, while allowing for
some discretion with respect to the timing of a removal, 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. With
respect to H&C applications, absent special considerations, such
applications will not justify deferral unless based upon a threat to personal
safety.
-Cases where the only harm suffered by
the applicant will be family hardship can be remedied by readmitting the person
to the country following the successful conclusion of the pending application.
[Emphasis in original]
[25]
In
the present matter, it is clear that the Officer considered all of the relevant
facts that were before him. The Officer applied the correct standard to the
evidence. The Officer concluded that none of the outstanding applications were
in and of themselves a sufficient reason to defer removal.
[26]
In
making submissions that the Officer committed a reviewable error, the Applicant
listed several considerations that, in his mind, the Officer disregarded. I am
unable to agree with any of the Applicant’s allegations of error on the part of
the Officer, however much sympathy I have for the position of the Applicant and
the Aguero family. It is settled law that a removal officer is not to conduct
a “mini” H&C assessment when dealing with a request to defer removal (Chetaru
v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FC
436 at paras 18-20).
[27]
The
Officer’s decision in this matter was entirely reasonable. I have examined the
Applicant’s submissions in more detail as follows.
B. Did
the Officer Reasonably Consider the Applicant’s Relationship with the Aguero Family?
[28]
The
Applicant submits that the Officer failed to duly consider the unique situation
in which he finds himself with respect to his support for the Aguero family.
In the Applicant’s opinion, the Officer erred in neglecting to consider all of
the risks and hardship that the Aguero family will face should he be removed to
Egypt.
[29]
It
seems, based on the record, that the Applicant provided much needed support and
stability to the Aguero family following the death of Mrs. Aguero. This is
laudable. The Officer turned his attention to this fact and the circumstances
of the family, noting that the Applicant had contributed to the family’s
emotional and financial well-being.
[30]
The
Respondent submits, however, that the Applicant is not even related to the
Aguero’s. I recognize that the argument can be made that the Applicant is
a de facto member of the Aguero family. Even in this case, the Officer
rightly acknowledged that all Aguero children were, at the time of the
decision, legal adults in the province of Ontario. They have
each other for support. They are also all Canadian citizens eligible to
benefit from a range of social programming that is available to all Canadians.
[31]
I
take the Respondent’s point that caselaw has previously held that an officer’s
obligation to consider the best interests of the children, when it comes to
minor children, is at the low end of the spectrum. Moreover, as held in Simoes,
above, removal officers are only required to consider the short-term interests
of those children (at para 38). In the present matter, certainly the removal
of the Applicant will be difficult for the Aguero’s. The Officer recognized as
much, and their affidavits attest to the difficulty they faced while the
Applicant was detained in 2010. But considering that all of the children are
all legal adults and Canadian citizens, who can choose to remain together for
emotional support, it cannot be said that the Officer was unreasonable in
coming to the conclusion that a deferral was not warranted.
[32]
The
Applicant submits that the Officer ignored the fact that the Aguero’s are
ineligible for government financial assistance. As the Respondent submits,
such evidence was not put before the Officer, and the Officer cannot be said to
have erred in failing to consider evidence that was not before him.
C. Did
the Officer Consider the Risk of Hardship that the Applicant Would Face in Egypt?
[33]
The
Applicant submits that the Officer failed to consider the hardship he would
face if he were to return to Egypt. Specifically, the Applicant argues that
the Officer failed to consider that he would be unable to hold an Egyptian
passport as he never completed the obligatory military service.
[34]
I
must accept the Respondent’s submissions on this point. The Applicant’s
request for deferral does not mention this issue, nor is it brought forward in
any of the documents submitted in support of his request. Once again the
Officer cannot be said to have erred in failing to consider evidence that was
not before him. As I held in Sribalaganeshamoorthy v Canada (Minister of
Citizenship and Immigration), 2010 FC 11 at para 37:
[37] […] It is illogical
to expect the Visa Officer to make references to objective country condition
documentation that was not submitted. The fact that some country condition
documentation may support the Applicant's case does not impose a duty upon the
Visa Officer to search for and produce that evidence on the Applicant's behalf.
[35]
The
Officer did otherwise consider the risks alleged in the Applicant’s request,
but concluded that these risks were already considered by the IRB and a PRRA
officer and that the risks were neither new nor sufficiently personalized in
nature. The Officer’s conclusion was reasonable.
D. Did
the Officer Consider the Pending H&C Application?
[36]
As
mentioned above, an outstanding H&C application is not in and of itself an
impediment to removal. However, a timely filed H&C application may be
grounds for a stay of removal. In the present matter, the Officer noted that
the H&C application was filed in April 2010, and consequently, a decision
on the application was not imminent. Furthermore, the Officer properly
determined that the H&C application would continue to be processed after
the Applicant’s removal. There is no error on the part of the Officer in this
regard.
[37]
The
Applicant disagrees with result of the Officer’s reasoning and essentially asks
the Court to reweigh the evidence and come to a different conclusion. However,
the Officer’s decision must be reviewed on a standard of reasonableness. This
Court is unable to substitute its judgment for that of the Officer. Given that
the decision was justified, transparent and intelligible, it must stand despite
any degree of sympathy the Court might feel for the Applicant and the Aguero
family.
V. Conclusion
[38]
No
question was proposed for certification and none arises.
[39]
In
consideration of the above conclusions, this application for judicial review is
dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
“ D.
G. Near ”
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