Date: 20071003
Docket: IMM-3240-06
Citation: 2007 FC 998
Ottawa, Ontario, October 3, 2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
SHANMUGASUNDARA UTHAYAKUMAR
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Mr.
Uthayakumar seeks judicial review of the decision of an enforcement officer not
to defer Mr. Uthayakumar's removal from Canada. The application is dismissed
because the officer had a limited discretion to defer removal, and Mr.
Uthayakumar has failed to establish that the officer made any reviewable error
in the exercise of that discretion.
FACTUAL BACKGROUND
[2] Mr.
Uthayakumar is a citizen of Sri Lanka who arrived in Canada in 1986 and made a
claim for refugee protection. In 1992, he submitted a humanitarian and
compassionate (H & C) application that was refused in 2000. In 2003, the
Adjudication Division of the Immigration Refugee Board found Mr. Uthayakumar
to be inadmissible to Canada on security grounds as a result of his membership
in the Liberation Tigers of Tamil Eelam (LTTE) and a deportation order was
issued. This Court dismissed the application for leave and judicial review
brought in respect of that decision. In late 2003, Mr. Uthayakumar
submitted an application for a pre-removal risk assessment. A negative
decision resulted and this Court refused to grant Mr. Uthayakumar leave to
challenge that decision. In 2004, Mr. Uthayakumar submitted a second H & C
application and also sought ministerial relief in respect of the finding of
inadmissibility. The application for ministerial relief was refused and, in
2005, a second application for ministerial relief was filed by Mr. Uthayakumar.
[3] On
April 12, 2006, Mr. Uthayakumar was directed to report for removal. Mr. Uthayakumar
submitted a second pre-removal risk assessment application and requested a
deferral of his removal. On May 18, 2006, the request for deferral was
refused. On June 12, 2006, Mr. Uthayakumar submitted further information to
the removal officer, but on June 13, 2006, the officer again refused to defer
removal. This application was brought in respect of the officer's decision not
to defer removal. By order dated June 21, 2006, this Court stayed Mr. Uthayakumar's
removal pending determination of this application for judicial review.
THE ERRORS ALLEGED BY MR.
UTHAYAKUMAR
[4] Mr.
Uthayakumar raises the following issues on this application:
1. Did the officer err by failing to adequately consider the best
interests of Mr. Uthayakumar's children?
2. Did the officer err by
failing to adequately consider the risk factors?
3. Did the officer err by failing to adequately consider the H
& C factors related to Mr. Uthayakumar's family?
4. Did the officer err by failing to exercise her discretion in
respect of Mr. Uthayakumar's pending request for ministerial relief, which was made
pursuant to subsection 34(2) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (Act)?
THE STANDARD OF REVIEW
[5] While
there is some divergence in the jurisprudence with respect to the applicable
standard of review, the preponderance of authority appears to be to the effect
that the appropriate standard of review of an officer's refusal to defer
removal is patent unreasonableness. See, for example, Zenunaj v. Canada
(Minister of Citizenship and Immigration), [2005] F.C.J. No. 2133, and the
pragmatic and functional analysis at paragraph 21. Counsel for the parties
agreed that this is the appropriate standard of review, at least where the
question is essentially one of fact. I am prepared to apply that standard of
review to the decision.
THE DISCRETION TO DEFER
REMOVAL
[6] Much
has been written with respect to the scope of an officer's discretion to defer
removal. The starting point must be subsection 48(2) of the Act, which
provides:
|
48(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.
|
48(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.
|
[7] As
my colleague Mr. Justice Barnes noted in Griffiths v. Canada
(Solicitor General), [2006] F.C.J. No. 182 at paragraph 19, a deferral is
"a temporary measure necessary to obviate a serious, practical impediment
to immediate removal".
[8] In
Wang v. Canada (Minister of Citizenship and Immigration),
[2001] 3 F.C. 682 (T.D.), Mr. Justice Pelletier, then of this Court, wrote at
paragraph 48 that "the discretion to defer should logically be exercised
only in circumstances where the process to which deferral is accorded could
result in the removal order becoming unenforceable or ineffective".
[9] The
Federal Court of Appeal, in Canada (Minister of Citizenship and Immigration)
v. Varga, 2006 FCA 394, at paragraph 16 noted the "limited"
discretion of a removal officer, remarking that "their obligation, if any,
to consider the interests of affected children is at the low end of the
spectrum".
[10] Bearing
in mind the limited nature of the discretion to defer removal, I now turn to
each asserted error.
1. Did the officer err by
failing to adequately consider the best interests of Mr. Uthayakumar's
children?
[11] Mr.
Uthayakumar argues that the officer failed to properly assess the financial, emotional
and medical effects of his removal upon his children. It follows, he asserts,
that the officer failed to be alert, alive, attentive and sensitive to the children's
best interests.
[12] Without
doubt, when assessing an H & C application an officer must carefully
consider and weigh the long-term best interests of an affected child. That,
however, is not the obligation of a removal officer, who is to decide when it
is "reasonably practicable" to enforce a removal order. A removal
officer should consider the short-term interests of a child who faces the
removal of a parent. This will essentially entail inquiry into whether, after
the departure of the parent, the child will be adequately looked after. Such
inquiry should not be duplicative of a full H & C assessment.
[13] In
the present case, the officer considered the submissions put before her and acknowledged
the emotional and financial support that Mr. Uthayakumar provided to his entire
family. She found, however, that the circumstances described on Mr.
Uthayakumar's behalf were not exceptional and did not outweigh the effect of the
deportation order so as to warrant the deferral of removal.
[14] In
view of the limited nature of the officer's discretion, her assessment of the
evidence before her concerning the best interests of Mr. Uthayakumar's children
was not patently unreasonable. The officer considered all of the submissions
advanced on Mr. Uthayakumar's behalf and did not ignore any compelling
individual circumstances.
2. Did the officer err by
failing to adequately consider the risk factors?
[15] Two
errors are advanced on Mr. Uthayakumar's behalf. First, it is said that the
officer failed to consider the particular risk Mr. Uthayakumar would face if returned
to Sri Lanka. Second, it is said that the officer ignored the evidence of risk
and considered only the following: a second pre-removal risk assessment
application does not benefit from a stay of removal; there was no suspension of
removals to Sri Lanka; and there was no moratorium on removals to Sri Lanka.
[16] In
my view, the officer did not err as alleged.
[17] The
evidence of personalized risk was contained in a brief note from Mr. Uthayakumar's
brother-in-law. He wrote that Mr. Uthayakumar "has no alternative to live
in Sri Lanka due to the present war situation". The officer did not err
by finding that the letter was very vague and did not explain how Mr.
Uthayakumar was personally at risk.
[18] The
evidence of risk provided to the officer was evidence of the generalized risk
faced by Tamils in Sri Lanka (for example, there was evidence that a bus
carrying civilians was hit when a mine exploded so that three of the bus’
passengers were wounded). The officer considered the evidence of risk and
observed that there was no suspension or moratorium on removals to Sri Lanka.
While her choice of words was poor, the officer was saying, in effect, that the
generalized conditions in Sri Lanka were not such as to trigger Canada's
international obligations and preclude Mr. Uthayakumar's removal to Sri Lanka.
Based on the evidence and submissions presented to the officer, it was not
patently unreasonable for her to have assessed the evidence of generalized risk
as being insufficient to warrant a deferral of removal.
3. Did the officer err by
failing to adequately consider the H & C factors related to Mr. Uthayakumar's
family?
[19] Mr.
Uthayakumar argues that the officer erred in law by refusing to defer removal
pending the determination of his H & C application and further erred by
failing to adequately consider the serious and compelling health implications that
his removal would have upon his wife and youngest child.
[20] It
is trite law that the existence of a pending H & C application does not bar
execution of a removal order and that a removal officer is not to conduct a
mini-H & C assessment. Here, the officer acknowledged the H & C
factors submitted on Mr. Uthayakumar's behalf and considered that he and his
family could potentially face hardship if he was returned to Sri Lanka. With
respect to the medical issues faced by Mrs. Uthayakumar and her youngest son,
the officer noted that each has access to necessary medical care in Canada and that
Mr. Uthayakumar's deportation would not affect that access. Recognizing the
limited nature of her discretion, the officer concluded that the H & C
factors were not such as to overcome the effect of the deportation order and
subsection 48(2) of the Act. I am satisfied that the officer considered all of
the submissions put before her and then weighed all of the relevant factors.
Her conclusion was not patently unreasonable.
4. Did the officer err by
failing to exercise her discretion in respect of Mr. Uthayakumar's pending
application for ministerial relief?
[21] Mr.
Uthayakumar argues that the officer erred in law by failing to defer removal
until Mr. Uthayakumar’s second request for ministerial relief was
assessed. Two separate errors are alleged. First, it is argued that the
officer failed to consider that Mr. Uthayakumar's association with the LTTE was
minimal and dated, and that he posed no current danger to Canada. This
analysis was said to be required because in Suresh v. Canada (Minister of Citizenship
and Immigration), [2002] 1 S.C.R. 3, the Supreme Court of Canada found that,
where there is a concern about removal to torture, removal of an inadmissible
person is only consistent with the Charter where the Minister considers the
possibility of exemption from the finding of inadmissibility through
ministerial relief. The second asserted error is that there was no indication
that the officer recognized that there is no temporal limit as to when the
Minister might grant a ministerial exemption.
[22] This
is not the first refusal to defer removal that Mr. Uthayakumar has judicially
reviewed. A previous application in respect of a previous decision was
dismissed by my colleague Mr. Justice O'Keefe in reasons reported at [2006]
F.C.J. No. 107. There, Justice O'Keefe found that the removal officer did not
err by failing to defer removal until the application for ministerial relief
was dealt with. The argument advanced before Justice O'Keefe appears to be the
same argument as is now advanced based upon the Suresh decision. I am
not persuaded that Mr. Uthayakumar should be allowed to re-litigate an
issue that has already been decided against him.
[23] In
any event, in oral argument, counsel for Mr. Uthayakumar could not point to any
submission made to the removal officer that Mr. Uthayakumar faced any risk of
torture in Sri Lanka. Any duty on the part of the officer to consider this
issue could only be triggered by such a submission, supported by cogent
evidence. In the absence of such a submission and cogent evidence, the issue did
not arise before the officer.
[24] As
to the second asserted error, the officer treated the request for ministerial
relief to be valid and subsisting. There is, therefore, nothing to support the
submission that the officer considered his request to be made out of time.
[25] For
these reasons, the application for judicial review is dismissed.
[26] Mr.
Uthayakumar seeks certification of the following questions:
Where an Enforcement Officer has been requested to defer
the execution of a removal order for a person who has made a request for
Ministerial Relief pursuant to s. 36(2) [sic] of IRPA, what factors should the
Officer consider in determining whether the outstanding request for Ministerial
Relief warrants the exercise of discretion to defer removal?
Given that Enforcement Officers must undertake some level
of inquiry when determining whether to exercise discretion and defer to another
process (which may render the removal order ineffective or unenforceable), what
is the requisite threshold for this inquiry with respect to a request for
Ministerial Relief?
[27] The
Minister opposes certification of either question.
[28] The
only issues argued before the Court with respect to ministerial relief are
those set out at paragraph 21 above. Neither argument was supported by a
proper evidentiary record and the first issue was previously decided against
Mr. Uthayakumar. It follows that neither question can be dispositive of an
appeal and so no question will be certified.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is dismissed.
“Eleanor R. Dawson”
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