Date:
220130529
Docket:
IMM-9496-12
Citation:
2013 FC 567
Ottawa, Ontario,
May 29, 2013
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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NIKISHA BLACKWOOD
JAKKIN JEANELLE ST. HILL
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Applicants
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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
JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision by an inland enforcement officer (the officer) of the Canada Border
Services Agency on September 12, 2012, denying the applicants’ request for their
removal from Canada to be deferred.
[2]
The applicants request that the officer’s
decision be set aside and the application be referred back to the Canada Border
Services Agency (CBSA) for redetermination.
Background
[3]
Nikisha
Blackwood, the principal applicant, is a citizen of St. Lucia. She entered Canada on October 14, 2000 as a temporary resident. Her oldest child, also the second
applicant, Jakkin Jeanelle St. Hill entered Canada on March 2, 2001 with the
same status. The applicant’s second child was born in Toronto on May 24, 2001.
On February 4, 2002 the applicant and her oldest child claimed refugee
protection. Their claim was rejected on July 30, 2003.
[4]
The
applicant and her child did not appear for a pre-removal interview. The
applicant’s second child returned to St. Lucia in 2004 and the applicant and
her oldest child left Canada in July 2005. She legally changed her name and
returned to Canada in September 2005. Her youngest child was born in July 2007.
In February 2008, the applicant again departed from Canada and re-entered in
December 2008. She was detained and then released on May 18, 2010. The
applicants submitted a pre-removal risk assessment (PRRA) application on the
same day.
[5]
The
principal applicant applied for permanent residence as a common law partner on
June 28, 2010. The PRRA application was refused on July 21, 2011. The principal
applicant was detained for eight days and released on a bond. On September 19,
2011, the principal applicant’s spousal application was approved in principle.
On January 30, 2012 a warrant was issued for her arrest due to violating the
terms of her release of reporting all address changes.
[6]
On
January 31, 2011, the spousal application was withdrawn due to the sponsor
withdrawing the application. The principal applicant was detained on the same
day, spending a month in detention before being released on a bond. She made a
humanitarian and compassionate (H&C) application for permanent residence on
April 10, 2012.
[7]
On
August 10, 2012, the Ontario Superior Court of Justice granted the principal applicant
full custody of all three children.
[8]
On
August 31, 2012, the principal applicant received a direction to report for
removal. She requested deferral of that removal the same day.
Officer’s Decision
[9]
The
officer refused the deferral request on September 12, 2012. Madam Justice
Elizabeth Heneghan of this Court granted a stay of removal pending the
resolution of this application on September 14, 2012.
[10]
The
officer’s reasons began with a recital of the principal applicant’s immigration
history. The officer noted that CBSA has an obligation under subsection 48(2)
of the Act to enforce removal orders as soon as is reasonably practicable. The
officer emphasized how little discretion an enforcement officer has to defer
removal.
[11]
The
officer turned to the first ground for removal raised by the principal applicant,
her outstanding H&C application. He noted the application had been received
by Citizenship and Immigration Canada (CIC) on April 10, 2012 and quoted the
H&C application instruction guide which indicated that such an application
did not delay removal from Canada. He also cited the IP 5 Manual indicating
that an H&C application did not trigger a stay of removal. He found that
removal would not render the H&C application moot, citing the same sources,
and indicated counsel had not provided evidence that an H&C decision was
imminent. The officer indicated that while it was beyond his authority to
perform an H&C evaluation, he would consider the other factors brought
forward in the deferral request.
[12]
The
officer then turned to the family’s establishment in Canada. He excerpted the principal
applicant’s submissions describing her employment and the child support orders
in force for her family and noted that she had submitted documentary evidence
including tax returns, a residential lease and an employment letter.
[13]
The
officer acknowledged that the removals process is difficult and that the principal
applicant had worked to support her family in Canada and establish connections.
He noted, though, the principal applicant was no longer eligible for a work permit
due to being under an enforceable removal order and that she had not
established she would be unable to receive child and spousal support payments
after leaving Canada. The officer considered letters of support describing the principal
applicant’s progress in overcoming the trauma she suffered at the hands of her
ex-husband, but concluded that there was insufficient evidence to warrant a
deferral.
[14]
The
officer noted that the principal applicant had spent the majority of her life
in St. Lucia and had left Canada to live there from February 2008 to December
2008, where she was employed as a personal support worker and attended school.
The officer concluded that establishment was not a reasonable basis for
deferral of removal.
[15]
The
officer then turned to the ground of hardship upon return to St. Lucia. The officer noted the principal applicant’s submission that she was in a vulnerable
psychological condition as a victim of abuse at the hands of her former spouse
and her stepfather and had sought counselling in Canada. The officer canvassed
the country conditions documents submitted by the applicants concerning
violence against women in St. Lucia but concluded that this material was
general in nature and did not speak to the principal applicant in specific terms.
The officer also relied on the applicants’ PRRA decision which spoke to serious
efforts by the St. Lucian government to reduce crime.
[16]
The
officer acknowledged the medical evidence submitted by the principal applicant
concerning her counselling in Canada but concluded there was insufficient
evidence demonstrating removal would be detrimental to her health or that she
would be unable to access treatment in St. Lucia. He also considered her
argument that she would not be able to support herself or her family in St. Lucia but noted that she had secured employment during her stay there in 2008.
Therefore, hardship did not justify deferral of removal.
[17]
Finally,
the officer turned to the ground of best interests of the children. He noted
the applicants argued this ground justified deferral due to the children being
in school in Canada and the poor country conditions for children in St. Lucia. He indicated he had considered country conditions evidence on this point.
[18]
The
principal applicant had argued her children would not be able to attend St.
Lucian public schools due to not having citizenship. The officer quoted a St.
Lucian statute indicating citizenship was available based on parental
citizenship, meaning that the principal applicant’s children could be registered
as St. Lucian citizens.
[19]
The
officer acknowledged the principal applicant’s evidence her children had used
counselling services in Canada but noted there was no evidence they were
currently doing so or that they would be unable to access such services in St. Lucia. The officer noted that all three children had lived in St. Lucia in some capacity since the principal applicant’s first arrival in Canada.
[20]
The
officer concluded there was no reasonable basis for deferral and indicated the
applicants were expected to report for removal.
Issues
[21]
The
applicants submit the following points at issue:
1. What is the
standard of review?
2. Did the officer
err in failing to consider the special considerations involved in the applicants’
pending H&C application, namely, the issue of family violence and the
timeliness of their application in light of their prior application for
permanent residence under the family class?
3. Did the officer
err in ignoring relevant evidence before him with respect to the best interests
of the children?
[22]
I
would rephrase the issues as follows:
1. What is the
standard of review?
2. Did the officer
err in refusing the request for deferral?
Applicants’ Written Submissions
[23]
The
applicants argue the applicable standard of review is reasonableness. The
applicants argue the officer has jurisdiction to defer removal and that the
duty to remove as soon as practicable means the timing of removal must be
reasonable and sensible.
[24]
The
applicants rely on Baron v Canada (Minister of Public Safety and Emergency
Preparedness), 2009 FCA 81, [2010] 2 FCR 311, for the proposition that an
H&C application can justify deferral where there are special
considerations. The applicants argue that such special considerations are
present in this case due to the fact they had a previous permanent residence
application approved in principle that was withdrawn due to the principal
applicant ending the abusive relationship with her sponsor. Had the principal applicant
not chosen to escape her abusive situation, she would not likely have faced
removal proceedings. The IP 5 Manual specifically advises officers to be
sensitive to the situation of a sponsored applicant leaving an abusive
relationship. The officer makes no mention of these unique circumstances and does
not consider them.
[25]
The
applicants also argue the officer did not make any findings as to the
timeliness of the H&C application, which was called for given that they
submitted their application soon after the refusal of their sponsored
application for permanent residence. The applicants submit these omissions
render the decision unreasonable.
[26]
The
applicants also request judicial review on the basis that the officer ignored
evidence. The applicants argue the officer was not alert, alive and sensitive to
the best interests of the children given his failure to consider the
psychological hardship they would experience if removed from Canada and given their own evidence and the country conditions evidence concerning the lack of
counselling and services available in St. Lucia. Disregarding the psychological
effects of removal is contrary to the officer’s role.
Respondent’s Written Submissions
[27]
The
respondent agrees that reasonableness is the appropriate standard of review and
argues the refusal of the request was reasonable.
[28]
The
respondent agrees that the officer’s responsibility was to consider the
circumstances related to the H&C application and its potential impact on
the removal order. The respondent argues the officer did exactly this by
considering the principal applicant’s immigration history, the best interests
of the child and hardship upon return.
[29]
The
respondent notes that the IP 5 Manual requires that H&C officers, not
removals officers, be sensitive to the withdrawal of a spousal application due
to abuse. The removals officer has no delegated authority to make an H&C
decision.
[30]
The
respondent points out that the abuse against the principal applicant occurred
in Canada and the abuser is in Canada. The officer was therefore reasonable in
refusing the request.
[31]
The
respondent argues the officer need not have considered whether the H&C
application was timely as it was clearly not delayed due to a backlog in processing,
as it had only been recently filed.
[32]
The
respondent submits that the officer’s analysis of the best interests of the
children was properly focused on short-term interests and that no evidence was
ignored.
Analysis and Decision
[33]
Issue
1
What is
the standard of review?
Where previous
jurisprudence has determined the standard of review applicable to a particular
issue before the court, the reviewing court may adopt that standard (see Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[34]
The
standard of review applied to removals officers decisions on a deferrals
request is reasonableness (see Ortiz v Canada (Minister of Public Safety and
Emergency Preparedness), 2012 FC 18 at paragraph 39, [2012] FCJ No 11). In
reviewing the officer’s decision on the standard of reasonableness, the Court
should not intervene unless the officer came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47, and Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12 at paragraph 59, [2009] 1 S.C.R. 339).
[35]
Issue
2
Did the
officer err in refusing the request for deferral?
In Baron
above, the Court of Appeal held that generally, H&C applications will not
warrant deferral of removal, but left open the possibility of “special
considerations” (at paragraph 51):
Subsequent
to my decision in Simoes, supra, my colleague Pelletier J.A.,
then a member of the Federal Court Trial Division, had occasion in Wang v.
Canada (M.C.I.), [2001] 3 F.C. 682 (F.C.), in the context of a motion to
stay the execution of a removal order, to address the issue of an enforcement
officer’s discretion to defer a removal. After a careful and thorough review of
the relevant statutory provisions and jurisprudence pertaining thereto, Mr.
Justice Pelletier circumscribed the boundaries of an enforcement officer’s
discretion to defer. In Reasons which I find myself unable to improve, he made
the following points:
•
There are a
range of factors that can validly influence the timing of removal on even the
narrowest reading of section 48, such as those factors related to making
effective travel arrangements and other factors affected by those arrangements,
such as children’s school years and pending births or deaths.
•
The Minister
is bound by law to execute a valid removal order and, consequently, any
deferral policy should reflect this imperative of the Act. In considering the
duty to comply with section 48, the availability of an alternate remedy, such
as a right to return, should be given great consideration because it is a
remedy other than failing to comply with a positive statutory obligation. In
instances where applicants are successful in their H&C applications, they
can be made whole by readmission.
•
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.
•
Cases where
the only harm suffered by the applicant will be family hardship can be remedied
by readmitting the person to the country following the successful conclusion of
the pending application.
[emphasis
added]
I agree
entirely with Mr. Justice Pelletier’s statement of the law.
[36]
Mr.
Justice Russel Zinn wrote in Williams v Canada (Minister of Public Safety
and Emergency Preparedness), 2010 FC 274, [2011] 3 FCR 311, that when
evaluating such special considerations. “… it is the officer’s responsibility
to consider the circumstances related to the H&C application” (at paragraph
38). While Mr. Justice Zinn went on to discuss an officer’s approach in
considering backlogged H&C applications, I do not read his reasons as
precluding considerations of other circumstances related to the timing of an
H&C application.
[37]
The
respondent does not dispute that such consideration is necessary, but argues
that such consideration was performed by the officer in this case. Given that
the officer’s reasons contain no discussion of the fact that the principal
applicant’s previous application had been rejected due to the termination of an
abusive relationship, I cannot agree. It is hard to imagine circumstances
surrounding an H&C application that could cry out louder for analysis under
the “special considerations” mentioned in Baron above.
[38]
An
applicant for permanent residency, such as the present principal applicant, who
suffers abuse at the hands of her sponsor faces an awful dilemma: leaving her
abuser and foregoing her chance to obtain permanent status in Canada or remaining with her abuser, thereby risking her safety but leaving her application
undisturbed. Either choice has serious, even mortal risks.
[39]
While
the officer is not required to mention every piece of evidence or every
argument, this argument was central to the applicants’ request for deferral and
the officer only addresses it in boiler-plate language. This omission is
significant enough to lead to an inference the officer made his finding without
regard for that evidence (see Pinto Ponce v Canada (Minister of Citizenship
and Immigration), 2012 FC 181 at paragraph 35, [2012] FCJ No 189).
[40]
The
officer’s failure to consider the circumstances of the H&C application
renders the decision unreasonable.
[41]
As
a result, I need not deal with the other issues raised by the applicants.
[42]
The
application for judicial review is therefore allowed and the matter is referred
to a different officer for redetermination.
[43]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
allowed, the decision of the officer is set aside and the matter is referred to
a different officer for redetermination.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
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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.
72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
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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.
72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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