Docket:
IMM-1444-11
Citation: 2011 FC 1257
Ottawa, Ontario, November 3, 2011
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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TERHEMBA THOMAS SHASE
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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 ORDER AND ORDER
[1]
For
more than five years now, Mr. Shase has been trying to gain official status in Canada. He came
from Nigeria and asked to
be recognized as a refugee. He was turned down. He then applied for a
pre-removal risk assessment [PRRA]. The PRRA officer found that he would not be at
serious risk were he to be returned to Nigeria. He did not
apply to this Court to have that decision reviewed. By early this year, he was
removal ready, in that there were no legal or administrative imperatives which
would allow him to remain in Canada. Indeed, section 48 of the Immigration
and Refugee Protection Act [IRPA] obliged the enforcement officer to remove
him from Canada “as soon as
is reasonably practicable”.
[2]
Through
counsel, Mr. Shase asked that his removal be administratively deferred pending
the outcome of his application for permanent resident status based on
humanitarian and compassionate [H&C] grounds, given his four-year
common-law relationship with a Canadian, the mother of his two children. That
request was denied.
[3]
Mr.
Shase applied for leave and judicial review of that decision and, in the
interim, sought a stay of his removal. A stay was granted by Mr. Justice
Lemieux. His cogent reasons are reported at 2011 FC 418. Leave was subsequently
granted. This is the judicial review of the enforcement officer’s decision. This
is yet another case which deals with an enforcement officer’s limited discretion
under section 48 of IRPA. The officer’s discretion certainly extends to details
pertaining to travel arrangements, but other factors may also be taken into account.
[4]
In
Simoes v Canada (Minister of Citizenship and Immigration), 7 Imm LR (3d)
141, [2000] FCJ No 936 (QL), Mr. Justice Nadon, as he then was, stated that an
enforcement officer may consider, among other things, “pending H&C
applications that were brought on a timely basis but have yet to be resolved
due to backlogs in the system.” This was one of the factors which influenced
Mr. Justice Lemieux, in that he was of the view that the application for
permanent residence on H&C grounds had been filed in a timely manner.
[5]
The
leading case is the decision of the Federal Court of Appeal in Baron v Canada (Minister of
Public Safety and Emergency Preparedness), 2009 FCA 81, [2009]
FCJ No 314 (QL). In addition to referring to his decision in Simoes,
above, Mr. Justice Nadon fully endorsed the decision of Mr. Justice Pelletier,
as he then was, in Wang v Canada (Minister of Citizenship and Immigration),
2001 FCT 148, [2001] 3 FC 682, in which he made several points. With respect to
H&C considerations, Mr. Justice Nadon paraphrased Mr. Justice Pelletier at
paragraph 51of Baron, as follows:
“[w]ith respect to H&C applications, absent special
considerations, such applications will not justify deferral unless based
upon a threat to personal safety.” [My Emphasis.]
[6]
More
recently in Canada (Minister of Public Safety and Emergency Preparedness) v
Shpati, 2011 FCA 286, at paragraph 43, Mr. Justice Evans, speaking for the
Court, referred to paragraph 51 of Baron, above, and reiterated:
“[w]ith respect to H&C applications, absent special
considerations, such applications will not justify deferral unless based upon a
threat to personal safety.”
[7]
It
has been definitively decided that removal to Nigeria would not
pose a threat to Mr. Shase’s personal safety.
[8]
With
respect to the H&C considerations in this case, they relate to his spousal
relationship and the welfare of his two children.
THE ENFORCEMENT
OFFICER’S DECISION
[9]
Mr.
Justice Lemieux did not have before him the tribunal record when he granted the
stay. That record was only produced after leave was granted. It shows that the
application for permanent residence, with spousal sponsorship, was not made in
a timely manner, in the sense that it could have been made years earlier.
Citizenship and Immigration officials cannot be reproached for not rendering a
decision on an application which, at best, had just been filed.
[10]
The
notes written by the enforcement officer in support of her decision indicate
that (1) Mr. Shase was removal ready, (2) the PRRA was negative, (3) at that
time the children lived in Kuujjuaq, northern Quebec, with their mother, (4)
there was no proof of financial support, and (5) although he had a Quebec Selection
Certificate, it was good until 2014. Furthermore, he could not benefit from an
administrative stay because he had been called in for a pre-removal interview
prior to filing his application for permanent residence.
[11]
The
record before the enforcement officer, and the record before me, comprises some
265 pages. Although there is a presumption that the enforcement officer read
all the material before her, that presumption may be displaced if there is
material in the record which contradicts the decision. As Mr. Justice Evans, as
he then was, said in Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), 157 FTR 35, [1998] FCJ No 1425 (QL) at
paragraph 17:
However,
the more important the evidence that is not mentioned specifically and analyzed
in the agency's reasons, the more willing a court may be to infer from the
silence that the agency made an erroneous finding of fact "without regard
to the evidence": Bains v. Canada (Minister of Employment and
Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's
burden of explanation increases with the relevance of the evidence in question
to the disputed facts. Thus, a blanket statement that the agency has considered
all the evidence will not suffice when the evidence omitted from any discussion
in the reasons appears squarely to contradict the agency's finding of fact.
Moreover, when the agency refers in some detail to evidence supporting its
finding, but is silent on evidence pointing to the opposite conclusion, it may
be easier to infer that the agency overlooked the contradictory evidence when
making its finding of fact.
[12]
Thus,
the more important the evidence that is not mentioned specifically and analyzed
in the officer’s reasons, the more willing a court may be to infer from the
silence that the officer made an erroneous finding of fact “without regard to
the evidence”.
[13]
The
exercise of discretion must be made on the material found in the record. It
beggars belief that the enforcement officer took into account what was actually
therein.
[14]
Mr.
Shase’s spouse is an Inuit from northern Quebec. Their
separation was temporary as he had bail conditions which required him to remain
in Montréal (which conditions have apparently now been lifted). The fact that
his spouse returned to northern Quebec to work did not negate
the other evidence in the file that Mr. Shase was the main support of the
children.
[15]
The
record shows that at one point Mr. Shase was given sole custody of the two
children, although now they both have custody. Most telling is a report by the
Batshaw Youth and Family Centres which indicated that Mr. Shase’s spouse had a
suicidal nature and was unstable. Mr. Shase himself was depressed because she
had not, at that point, filed a sponsorship application. There is a cultural
sensitivity issue here in that it is argued that an Inuit woman could not
believe that the authorities would throw her spouse out of the country.
[16]
Mr.
Shase’s spouse was said to be very impulsive and made choices on a personal
level without consideration for her family or the negative impact on her
children. She needs professional help, and “to be directed to make responsible
decisions for herself and her family.”
[17]
The
fact that Mr. Shase did not benefit from an administrative stay does not take
away from the fact, as noted by Mr. Justice Lemieux, that the policy is
designed to prevent hardship. As I said in a stay motion in Collins v Canada (Minister of
Public Safety and Emergency Preparedness), 2008 FC 660, [2008]
FCJ No 835 (QL), at paragraph 14:
The public policy with respect to the Spouse or
Common-law Partner in Canada class is a commitment “to preventing the
hardship resulting from the separation of spouses and common-law partners
together in Canada where possible.” Thus it alleviates some of
the hardship inherent in a separation. The fact that Mr. Ugochukwu is caught up
in the fine print does not automatically mean that an officer properly informed
as to the facts might not have granted a deferral.
[18]
Things
are better now but are practically doomed to failure should Mr. Shase be
removed at this point in time. As said in Nguyen v Canada (Minister of
Citizenship and Immigration), 2004 FC 1629, [2004] FCJ No 1967 (QL), which
was a judicial review of an H&C application, Mr. Shase’s removal will not
only diminish him and his family, but will diminish us all.
[19]
I
find the decision unreasonable. As per Wang, Baron and Shpati,
there were “special considerations” which were completely ignored.
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that:
1.
The
judicial review of a
decision of an enforcement officer, dated 1 March 2011, not to defer removal
pending the outcome of an inland H&C application for permanent residence
with spousal support, is granted.
2.
The
matter is referred back to another enforcement officer for re-determination.
3.
There
is no serious question of general importance to certify.
“Sean Harrington”
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