Date: 20080707
Docket: IMM-5213-07
Citation: 2008 FC 833
Montréal, Quebec, July 7, 2008
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
WILSON
MATENDA GUMBURA
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant seeks judicial review pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) of a decision of December 5,
2007 (impugned decision) by an Enforcement Officer (Officer) not to defer the
Applicant’s removal from Canada until a decision is made on his humanitarian
and compassionate (H&C) application.
I. Facts
[2]
A
citizen of Zimbabwe, the applicant arrived in Canada in July
2001. Before his arrival in this country, he had spent three years in the United
States
where he completed studies in business and ministry. During his stay in United
States,
he was convicted in January, 2001 of attempting to obtain property under false
pretences.
[3]
After
his arrival in Canada, the applicant made a refugee claim which was ultimately
rejected by the Refugee Protection Division, in a decision of December 8, 2003,
with a finding that the applicant was not credible, and that he had joined the
Movement for Democratic Change (MDC) political party in Canada in order to
purposefully create a “refugee sur place” situation to bolster
his claim.
[4]
The applicant subsequently made a Pre-Removal Risk Assessment
(PRRA) application which was denied on October 18, 2004. The PRRA Officer
concluded that the Applicant had not established that he would be at risk upon his
return to Zimbabwe.
[5]
In addition to his conviction in the United States, the applicant
has been convicted three times in Canada. On July 14, 2004, he pled guilty to
fraud over $5,000 and failing to comply with recognizance. On December 9, 2005
he was convicted of personating with intent in a matter dealing with a mortgage
application. On April 5, 2007, he pled guilty to uttering a false document,
fraud under $5,000, breach of probation, unauthorized use of credit card data,
possession over $5,000 and unlawfully possessing a counterfeit mark. The applicant
has also been charged on four occasions with assault although the charges in
each of those occasions were withdrawn, subject in one case to a peace bond.
[6]
The
applicant has been incarcerated since February 1, 2007, serving a sentence for
his criminal charges and then on immigration hold. He has remained incarcerated
since then awaiting his removal from Canada. Prior to being
incarcerated, the applicant had failed on several occasions to report when
required resulting in warrants being issued for his arrest.
[7]
The
applicant has been married since 1990 and has seven children. The applicant,
his wife, and one of his children are HIV positive. The applicant’s wife and
children are not currently being removed from Canada. While the applicant’s
wife and his two oldest children are citizens of Zimbabwe, his third child is a
citizen of the United States and his youngest four children are
Canadian. The applicant had also a child with another woman, but they are not
relevant to this application.
[8]
The
applicant submitted his initial H&C application on May 27, 2005. However,
this application was returned on September 13, 2005 as Citizenship and
Immigration Canada requested separate application forms completed by the
applicant and his wife. The applicant did not however submit the forms until
more than two years later that is on November 15, 2007.
[9]
On
November 19, 2007, the applicant requested deferral of his removal from Canada until his
H&C application is determined. In the decision dated December 5, 2007, the
Officer denied the request. The applicant was scheduled for removal on January
8, 2008. However, that removal was stayed until such time as this application
for judicial review has been disposed.
II. Whether
Application is Moot
[10]
The
applicant’s removal date has passed, which raises the question whether this
judicial review is moot. This question has been certified in other hearings to
be determined by the Federal Court of Appeal. Regardless, the Court agrees with
both parties’ submissions that, although the proceedings are technically moot,
it should consider the merits of the applicant’s arguments in this case, as the
applicant’s H&C application has not yet been determined and the remaining
presence of an adversarial context.
III. Standard of Review
[11]
The Officer’s findings are reviewable on the
standard of reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9 (QL)). This is a
deferential standard which recognizes that certain questions before
administrative tribunals do not lend themselves to one specific, particular
result but instead give rise to a number of possible and reasonable
conclusions.
[12]
Therefore the Court should not intervene unless the
Officer’s decision does not fall “within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law" (Dunsmuir,
above, at paragraph 47).
III. Issues
[13]
The
impugned decision raises three issues:
a.
Did the Officer
err in determining that the applicant would not face imminent risk upon his
return to Zimbabwe?
b.
Did the
Officer fail to properly consider the best interests of the Applicant’s
children?
c.
Did the
Officer improperly draw an adverse inference on the lateness of the submission
of the H&C forms and fee?
IV. Analysis
[14]
The
record shows that the Officer considered the applicant’s positive HIV
diagnosis. He noted that the Applicant was not currently taking any medications
and that antiretroviral drugs were available, albeit expensive, in Zimbabwe and that the
applicant’s parents who are still in Zimbabwe may be able to support
him. The Officer’s conclusion on this point appears reasonable particularly
given that Officer’s discretion does not duplicate the role of the PRRA or
H&C Officer. The fact that better care would be available in Canada is not a
ground for deferral. The issue of discrimination or stigma that the applicant
may face due to his HIV status in Zimbabwe is also not a ground
for deferral and is outside the scope of an Enforcement Officer.
[15]
The
Officer noted that the applicant’s children are under the care of their mother and
the supervision of the Children’s Aid Society by Order of the Ontario Superior
Court of Justice. The Officer noted that no submissions had been made as to the
involvement of the applicant in the upbringing of his children other than the applicant’s
assertions.
[16]
Clearly
the applicant had not been residing with his children since February 10, 2007,
as he has been incarcerated since that date. Hence, removal of the applicant
would essentially maintain the status quo as the children would continue
to remain in Canada under the
care of their mother with support, as held necessary, by the Children’s Aid
Society. Therefore the Officer made no error in concluding that the immediate
interest of the children will continue to be looked after if the applicant were
to be removed from Canada. The status quo would continue and the children
would remain in Canada with their mother, or in the custody of the
state until otherwise decided.
[17]
The
applicant raises concerns that his wife and three oldest children also have
removal orders. However, at this time no steps are being taken to remove the applicant’s
wife or any of his children. Thus, these concerns are purely speculative and
premature.
[18]
The
Officer’s responsibility does not require him to undertake a substantive review
of the children’s best interests at this stage. That question, is for the
H&C Officer to decide (Simoes v. Canada (Minister of
Citizenship and Immigration) (2000), 187 F.T.R. 219 (T.D.)). For these
reasons, the Officer made no reviewable error in finding that the immediate
interests of the children would be looked after if the applicant was to be
removed from Canada.
[19]
The
Officer found that the applicant’s explanation for the late filing of his
H&C application lacked credibility. The applicant had claimed that he had
not filed the forms and paid the fee as he was dealing with his criminal
charges and the difficulty in saving the money to pay for the fee. But there is
no merit to the argument that the applicant’s criminal charges explain a two‑year
delay. The Court also notes that the record indicates that the Applicant was
able to procure $2,500 on June 29, 2006 as a bond for his release after he was
arrested on an immigration warrant two weeks earlier.
[20]
A
late filed H&C application does not warrant a deferral even if there is a
backlog in processing those applications. Parliament did not intend there to be
a statutory stay of removal for H&C applicants. The H&C applications
should be made at the earliest practical opportunity (Varga v. Canada (Minister
of Citizenship and Immigration), [2007] 4 F.C.R. 3 (F.C.A.), at
paragraph 18).
[21]
The
applicant was essentially requesting that the Officer stay his removal
indefinitely to wait for a process which could take years to complete and this
in great part due the late filing of his H&C application.
[22]
This
argument does not raise a serious issue:
The effect of the applicants’ submission
is that, in every case where an H & C application is submitted,
there would be a bar to the execution of a valid removal order. It would permit
applicants to “automatically and unilaterally stay the execution of validly
issued removal orders at their will and leisure by the filing of the
appropriate application”: Simoes v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 219 (T.D.) If Parliament had
intended such a result, it would have expressly provided for it.
(Ferreira v. The Minister of Public Safety
and Emergency Preparedness, F.C., IMM-1538-06, order dated March 28, 2006).
[23]
In
his limited discretion the Enforcement Officer made no error in holding that
the pending H&C application – which would continue to be processed in the
Applicant’s absence – did not warrant a deferral in this case.
[24]
This
Court for all these reasons concludes that the Officer’s decision, far from
being unreasonable, falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law, and made no
reviewable errors in his decision.
[25]
The
application will therefore be dismissed. Further, the Court agrees with the
parties that there is no question of general interest to certify.
JUDGMENT
FOR THE
FOREGOING REASONS THE COURT dismisses the application.
“Maurice E. Lagacé”
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