Date:
20070720
Docket:
IMM-2217-06
Citation:
2007 FC 755
Ottawa, Ontario, July 20,
2007
PRESENT: The Honourable Mr.
Justice Blanchard
BETWEEN:
LATANYA
AUSTINI
Applicant
and
THE
SOLICITOR GENERAL OF CANADA
Respondent
REASONS
FOR ORDER AND ORDER
[1]
Latanya Austini, a failed refugee claimant, seeks judicial review of the
April 4, 2006 decision of an expulsion officer not to defer her removal to St.
Lucia.
1. Facts
[2]
The Applicant is a 19 year-old citizen of St. Lucia and has been in Canada
without status since 1998. The Applicant received a negative pre-removal risk
assessment (PRRA) and was granted a stay of removal on April 28, 2006, pending
the outcome of this application.
[3]
The Applicant entered Canada in 1997 when she was eleven years of age
and has been here ever since. Apart from her grandparents who live there, the
Applicant claims to have little connection to St. Lucia.
[4]
The Applicant’s mother entered Canada on July 17, 1993, and made a
refugee claim in 1997, which was refused in 1998. The Applicant is a named
dependent in her mother’s H&C application which was submitted on December
21, 2005. A determination on the application is pending. The Applicant’s PRRA
application was submitted on December 22, 2005, and she was informed of the
negative result on April 4, 2006.
[5]
The Applicant had successfully completed high school. She applied for a
student visa which was denied because she had not yet been accepted at an
educational institution in Canada. Subsequently, by an e-mail sent on April 3,
2006, the Applicant was informed of her acceptance to the Ontario College of
Art & Design in Toronto.
[6]
In her affidavit the Applicant attests that she was informed by the
Expulsion Officer that she could return to Canada on a student visa within 2
weeks after returning to St. Lucia. The Applicant states that based on this
representation she was anxious to return to her country so that she could
obtain a student visa and return to Canada. She consequently refused an offer
of extra time to prepare for her removal. After being informed by her lawyer
that it was unlikely, in her circumstances, that she could obtain a student
visa and be permitted to return to Canada she did not leave.
[7]
The Officer’s notes, which were made on the same day of the interview,
conflict with the Applicant’s evidence. The notes acknowledge the Applicant’s
intention to return to Canada on a study permit and show that the Officer
advised the Applicant’s mother that she may approach the Canadian Embassy and
apply for a study permit in order to return. The notes also record that the
Officer informed the Applicant’s mother that unfortunately the removal must be
executed. The Officer did not believe that a deferral of removal was
appropriate in this case.
2. Issue
[8]
Did the Enforcement Officer commit a reviewable error in the exercise of
her discretion in refusing to defer the removal in circumstances?
3. Standard of Review
[9]
The standard of review applicable to a decision of an Expulsion Officer
was considered in Zenunaj v. Canada (Minister of Citizenship
and Immigration), 2005 FC 1715 at paras. 19-22. In that case Justice Mosley
held that if the question is essentially one of fact, the applicable standard
of review is patent unreasonableness. I agree with my colleague’s assessment of
the applicable standard of review for decisions of expulsion officers. Since
the issue here is a question of fact, I will review the Officer’s decision on
the patent unreasonable standard.
3. Analysis
[10]
The Applicant argues that the Officer failed to properly consider the
request to defer her removal. She contends that the Officer focused on the
Applicant’s student status and the issue of her student visa and did not turn
her mind to other important factors such as the Applicant’s age, the fact that
she would be returning to a country she did not know and that she left when she
was 11 years old. The Officer also failed to consider the circumstances of her
pending H&C application and the fact that she would be returning without
her mother. The Applicant contends that the Officer’s decision was made without
regard to the evidence. Further, the Applicant argues that she was misled by
the Officer as to the likelihood of her obtaining a student visa upon her
return to St. Lucia.
[11]
In her written submissions the Applicant contends that she has a legal
right to apply from within Canada as she does not have any criminal
inadmissibility issues and her H&C application for permanent residence has
been in process for 7 months and a decision should issue in the near future.
[12]
The record indicates that the Officer did mention the outstanding
H&C application in her notes to file. This factor was considered by the
Officer. It is well accepted that a removal officers cannot be expected to
undertake a full substantive review of the humanitarian circumstances that are
to be considered as part of an H&C assessment. They have no jurisdiction or
delegated authority to determine such applications and are not trained to do
so. It is also well accepted that a pending H&C application is not
sufficient to defer a removal.
[13]
The Officer’s evidence is that she “…informed the Applicant that removal
had to be executed, but that [the Applicant] could apply for a study permit
from St. Lucia at the Canadian Embassy”. There is nothing on the record to
cause me to doubt the Officer’s evidence, which I prefer over the Applicant’s
evidence since the Officer, unlike the Applicant, has no vested interest in the
outcome. I find, in the circumstances, that the Officer’s information was not
misleading. In any event, the impugned representations allegedly made by the
Officer are of no consequence since, in the end the Applicant did not act on
them. She did not leave the country.
[14]
Given the limited jurisdiction of an expulsion officer, I am satisfied
that the Officer’s decision was made with regard to the evidence and that the
Officer did not fetter her discretion in deciding as she did. In the
circumstances, the Officer’s decision is not patently unreasonable.
Consequently, the application for judicial review will be dismissed.
[15]
The parties have had the opportunity to raise a
serious question of general importance as contemplated by paragraph 74(d)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27,
and have not done so. I am satisfied that no serious question of general
importance arises on this record. I do not propose to certify a question.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2217-06
STYLE OF CAUSE: Latanya
Austini v. The Solicitor General of Canada
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 9, 2007
REASONS FOR ORDER AND ORDER: Blanchard J.
DATED: July 20, 2007
APPEARANCES:
Mr. Robin L.
Seligman FOR THE
APPLICANT
Toronto, Ontario
Ms. Vanita
Goela FOR THE RESPONDENT
Toronto, Ontario
SOLICITORS
OF RECORD:
Mr. Robin L.
Seligman FOR THE APPLICANT
Toronto, Ontario
John H. Sims, Q.C. FOR
THE RESPONDENT
Deputy Attorney
General of Canada
Toronto, Ontario
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