Docket: IMM-3399-11
Citation: 2011 FC 1430
Ottawa, Ontario, December 14, 2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
|
|
SHAKELA BABOOLALL
|
|
|
|
Applicant
|
|
and
|
|
|
MINISTER OF PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
Introduction
[1]
The
applicant seeks to set aside a decision rendered by a Canada Border Services
Agency (CBSA) removals officer (the Officer) refusing to defer her removal from
Canada pending disposition of a pending application for humanitarian and
compassionate (H&C) relief under section 25 of the Immigration and
Refugee Protection Act, 2001, c. 27 (IRPA). For the reasons that
follow, the application is dismissed.
Facts
[2]
The
applicant, Mrs. Shakela Baboolall, arrived in Canada in 1974 when
she was six years of age. She has never regularized her status in Canada. She is now
43 years old, and the mother of three Canadian born children aged 22, 15 and 13.
The applicant’s history in Canada is unfortunate and complicated. The
applicant has been convicted of numerous criminal offences, including criminal
negligence causing bodily harm, failure to stop at the scene of an accident and
being unlawfully at large. Her interactions with the CBSA and Citizenship and
Immigration Canada (CIC) are numerous. She has been subject to removal since
2006, but was successful, on two prior occasions, in obtaining a deferral of
removal. She has made several failed judicial review applications. She has
filed H&C applications and sponsorship applications which have either been
incomplete, not pursued by the applicant or refused by the government. She has
been married for 16 years to a Canadian who sought to sponsor her from within Canada. When that
was refused, her spouse sought to sponsor her from abroad. She did not attend
the interview in the Canadian embassy in Trinidad and Tobago, citing her responsibilities
to care for her children.
[3]
For
what is an otherwise long story which shall not be repeated here, the applicant
became subject to a removal order which was to be executed on May 31, 2011. On
May 30, 2011, Justice Sean Harrington granted a motion to stay removal pending
adjudication of the underlying judicial review application which is the subject
of this decision.
Issue
[4]
The
issue in this case is whether the decision of the Officer to refuse the
applicant’s request for deferral of removal withstands scrutiny on a
reasonableness standard: Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190. The applicant argues that the Officer’s discretionary
decision was unreasonable because the Officer fettered her discretion, ignored
evidence, made serious factual errors or came to an unreasonable decision when
she decided not to defer the applicant’s removal from Canada.
Analysis
[5]
Turning
to the first argument, the applicant contends that the “…enforcement officer
did not take into consideration the fact that the applicant now has a pending
humanitarian and compassionate application as well as a pending Temporary Resident
Permit application.” This argument is not supported by the decision.
Counsel is requesting a deferral of Ms.
Shakela Baboolall’s removal to allow for the processing of her outstanding
H&C application received on 23 November 2010. I note that on 16 January
2011, Ms. Shakela Baboolall’s H&C application was referred to CIC
Scarborough for a more in-depth review. According to the CIC processing
website…H&C applications can take approximately 15 months for further
processing after they have been transferred to a local CIC.
I further note that Ms. Shakela Baboolall
has been aware of her impending removal for quite some time, as her Deportation
Order was issued 16 December 2004, and she has been scheduled for removal on
two previous occasions. I note that M. Shakela Baboolall’s H&C application
was not submitted until after the second time Ms. Shakela Baboolall signed her
Direction to Report advising of her scheduled departure date, and approximately
6 years after being ordered deported from Canada. In considering this, as well as the
above mentioned timeframe and factors, I do not consider this application to be
timely. Further I note that counsel has failed to provide any evidence to
demonstrate that a decision on this application is imminent. Further to this, I
note that the submission of an H&C Application, in and of itself, is not an
impediment to removal, nor does it delay an individual from being removed from Canada. I note that this clearly
outlined in the application and instruction guide (IMM 5291).
Parenthetically, I find it important to
note that Parliament has not enacted, in the Immigration and Refugee Protection
Act (IRPA), a provision to stay the enforcement of a removal order due to an
outstanding H&C application. According to Public Policy under subsection
25(1) of IRPA, an outstanding H&C application does not warrant a deferral
of removal, nor does it constitute a stay under section 50. Moreover, as per
section 233 of the Immigration and Refugee Protection Regulations, there is no
stay of removal where there in an outstanding H&C application that has not
been approved in principle by the minister.
Having said that, and while I note that
it is beyond my authority to conduct an adjunct H&C evaluation, I have
carefully considered the grounds raised in the deferral request….
[6]
It
is clear that the Officer considered the H&C application, and did so
substantively. Thus the first prong of counsel for the applicant’s first
argument falls away.
[7]
In
respect of the second prong of her first argument, that is, the failure to take
into account a pending temporary resident permit (TRP), the Officer found as
follows:
According to the deferral request
submissions, counsel asserts that on 22 September 2010, Ms. Shakela Baboolall
also submitted an application for a Temporary Resident Permit (TRP). I note
that counsel has not presented any evidence that a TRP application has been
submitted or received at CPC Vegreville. I am willing to concede that some time
may elapse until the receipt of an application is reflected on FOSS. However, I
note that counsel asserts a TRP application was sent to CPC Vegreville on 22
September 2010, the same day as her H&C application. I note that Ms.
Shakela Baboolall’s H&C application is reflected in FOSS, thus allowing me
to infer that a TRP application was neither submitted nor received at CPC
Vegreville along with the H&C application. As stated above, Ms. Shakela
Baboolall did have a TRP application at the Canadian Visa Office; however she
was advised that the application was not able to be considered until she
confirmed her departure from Canada to determine her
inadmissibility.
Nonetheless, I find that if Ms. Shakela
Baboolall did in fact submit a TRP application to CPC Vegreville on 22
September 2010, the application was submitted approximately 6 years after she
was ordered deported from Canada. I note that the application
was also submitted after Ms. Shakela Baboolall was scheduled for removal for
the third time, after she had received negative PRRA and after her overseas
family class sponsorship was refused and the IAD appeal was dismissed As such I
do not find the TRP application timely and I am not satisfied that it provides
reasonable grounds for a deferral of Ms Shakela Baboolall’s removal.
[8]
Once
again, it is clear that the Officer considered the applicant’s Temporary
Resident Permit application and provided reasons proportionate to that
consideration. Counsel’s argument that the Officer failed to “take into
consideration the fact that the applicant now has a pending humanitarian and
compassionate application as well as a pending Temporary Resident Permit
application”, therefore, fails. Neither a pending H&C application nor a
pending TRP application is an impediment to removal.
[9]
Second,
the applicant argues that the Officer erred because she did “…not assess the
extreme hardship the applicant would face if forced to return to Guyana and await
processing of her application in a country foreign to her.” Hardship
informs the standard applied in H&C applications, which is commonly known
to require an evaluation of an applicant’s likelihood to suffer an unusual,
undeserved, or disproportionate hardship if forced to apply for Canadian
permanent residency outside of Canada. In this context, I cannot improve on the
analysis provided by Justice Yves de Montigny in Munar v Canada (Minister of
Citizenship and Immigration), 2005 FC 1180, [2006] 2 FCR 664 wherein he
held:
…I am of the view that the filing of an H
& C application cannot automatically bar the execution of a removal order,
even if it results in the separation of a child from his or her parent(s).
Similarly, removals officers cannot be required to undertake a full substantive
review of the humanitarian circumstances that are to be considered as part of
an H & C assessment. Not only would that result in a “pre H & C”
application”, to use the words of Justice Nadon in Simoes, but it would
also duplicate to some extent the real H & C assessment. More importantly,
removals officers have no jurisdiction or delegated authority to determine
applications for permanent residence submitted under section 25 of the IRPA.
They are employed by the Canadian Border Services Agency, an agency under the
auspices of the Minister of Public Safety and Emergency Preparedness, and not
by the Department of Citizenship and Immigration. They are not trained to
perform an H & C assessment.
[10]
It
was neither the responsibility nor jurisdiction of the Officer to analyze the
hardship the applicant would suffer should removal not be deferred. This the
Officer clearly recognized, and stated in her decision: “…I note that it is
beyond my authority to conduct an adjunct H&C evaluation.” Nevertheless,
the Officer did examine the immediate impact removal would have on the
applicant:
…I have also carefully considered the
hardship that Ms. Shakela Baboolall may face as result of her deportation from Canada to Guyana. I note that counsel provided one
additional page on 09 May 2011 again requesting that Ms. Shakela Baboolall’s
removal be deferred until her outstanding H&C application and TRP
application are finalized due to her extreme establishment in Canada. I also acknowledge counsel’s
assertion that Ms. Shakela Baboolall has absolutely no ties to Guyana as she has not returned there
since she was a young child. I would like to note that while Ms. Shakela
Baboolall has resided in Canada for many years with her
husband and three sons, this does not confer any temporary resident status upon
her.
[11]
Third,
the applicant argues that “…the enforcement officer did not properly assess the
best interest of the children…”. For the same reasons provided in respect of
hardship above I find this argument has little merit. In Varga v Canada (Minister of
Citizenship and Immigration), 2006 FCA 394, [2007] 4 FCR 3 the Federal
Court of Appeal noted:
…there is no analogy between the
statutorily defined functions of a PRRA officer and the role of a removals
officer. The latter has a limited but undefined discretion under section 48
with respect to the travel arrangements for removal, including its timing (“as
soon as reasonably practicable”). Within the narrow scope of removals officers’
duties, their obligation, if any, to consider the interests of affected
children is at the low end of the spectrum, as contrasted with the full assessment
which must be made on an H&C application under subsection 25(1).
[12]
Given
the Court of Appeal’s holding in Varga and the limited nature of the
best interests of the child analysis a removals officer is expected to conduct,
I find the analysis conducted by the Officer sufficient and reasonable:
In making this decision, I have also
carefully considered the best interests of Ms. Shakela Baboolall’s three
children, Arial, Anthony, and Christon, ages 22, 15, and 13 respectively. I
have also carefully considered the hardship Ms. Shakela Baboolall may face as
result of her return to Guyana, her country of birth which
she left at the age of 4.
[…]
Moreover, I find it important to note
that Ms. Shakela Baboolall stated in the 24 May 2011 interview that Mr Johnson
would be taking care of their sons after she was removed from Canada. She stated that Mr. Johnson
is currently working as a computer engineer in Mississauga, and has done so for the past year. In
considering this, I am confident that the children will be properly cared for
during this time of transition, and with the potential support of extended
family and friends they will have every opportunity to grow up to be confident,
caring, and capable individuals.
[…]
I note that Ms. Shakela Baboolall and her
family have been given more than a sufficient amount of time to prepare for her
impending removal. I note that her removal scheduled for 31 May 2011 is the
third scheduled removal for Ms Shakela Baboolall each time she has spoken to
making arrangements for her children to remain in Canada. Moreover, while it may mean that Mr
Johnson has to make-arrangements with his work schedule, the family was advised
of this and should have begun to make the appropriate arrangements. It is
important to note that as Canadian Citizens Ms. Shakela Baboolall’s husband and
three sons are able to travel to Guyana
to visit her during this time of separation should they so choose.
I acknowledge that leaving her family is
quite difficult for Ms. Shakela Baboolall and I sympathize with her. However, I
note counsel’s statement that it is “not feasible for Ms. Baboolall to depart Canada.” I find it important to note
that Ms. Shakela Baboolall’s removal from Canada does not necessarily imply that the
family will be separated indefinitely. Mr. Johnson can submit another overseas
family class sponsorship for his wife.
[13]
It
is clear that, to the extent she was required to do so, the Officer considered
the best interests of the applicant’s children and that the conclusion reached
was, given the age of the children, the fact that their father would remain
with them and was the principle wage earner, reasonable.
[14]
Fourth,
the applicant urges that removal to Guyana would expose her to inhumane
treatment as contemplated by Baron v Canada (Minister of
Public Safety and Emergency Preparedness), 2009 FCA 81, [2010] 2
FCR 311. She has lived in Canada almost all of her life. She knows nothing
of Guyana, its culture
or language. She has aunts and uncles remaining there, but her mother and
siblings are in Canada. She has no means of support in Guyana. Her
ability to return to Canada is problematic given her criminal record.
At issue, therefore, is whether the applicant falls within this limited
exception in Baron. In Baron, Nadon JA said: “In Reasons which
I find myself unable to improve, [Mr. Justice Pelletier] made the following
point []…[and]…I agree entirely with [his] statement of the law:
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.
[15]
In
my view, it would be antithetical to Parliament’s purposes and objectives as
expressed in the IRPA to allow a person to gain the benefits of
residency in Canada simply through
the passage of time. Put otherwise, with exceptions, and there will be
exceptions, the gradual accretion of establishment factors cannot amount, in
the end, to legal entitlement to remain in Canada. To allow
the passage of time to become, in and of itself, a determinative factor in the
exercise of the removal officer’s discretion would, in effect, reward delay,
prevarication and avoidance. In this regard, it is, I think, important to
maintain a clear demarcation between what Parliament has authorized as the mechanisms
by which foreign nationals can gain admission to Canada, and the
conduct of the executive in the administration of the Act. Put
otherwise, delay on the part of government departments in allowing a case to
linger for decades cannot be relied on by an applicant to create a supplemental
avenue of recourse for admission to Canada beyond that
contemplated by Parliament. As Justice Yves de Montigny observed in Serda v Canada (Minister of
Citizenship and Immigration), 2006 FC 356
at para 21:
It would obviously defeat the purpose of the Act if the
longer an applicant was to live illegally in Canada, the better his or her
chances were to be allowed to stay permanently, even though he or she would not
otherwise qualify as a refugee or permanent resident. This circular argument
was indeed considered by the H & C officer, but not accepted; it doesn't
strike me as being an unreasonable conclusion.
[16]
In
reaching this conclusion, I have no doubt that the applicant will face
challenges upon return to Guyana. However, at each step in the immigration
process, the applicant made a decision whether her best interests lay in
challenging the decision, or pursing a further application for H& C relief
or in returning to her country of origin. There were risks inherent in each
course, and in this case the applicant chose to seek to remain in Canada by every
mechanism possible. That this makes return more difficult cannot be turned into
a reason compelling the deferral of her removal.
[17]
The
application is dismissed.
[18]
There
is no question for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review be and is hereby
dismissed. No question for certification has been proposed and none arises.
"Donald
J. Rennie"
Email this Content