Date:
20130702
Docket:
IMM-10645-12
Citation:
2013 FC 730
Montréal, Quebec,
July 2, 2013
PRESENT: The
Honourable Madam Justice Gagné
BETWEEN:
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IKROM AHMEDOV
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Applicant
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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]
The
Applicant seeks judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA), of a decision of a
Canada Border Services Agency (CBSA) Officer, dated October 11, 2012. The
Applicant alleges that the Officer refused to exercise his discretion to defer
the Applicant’s scheduled removal from Canada on October 23, 2012, under
section 48 of the IRPA. The Applicant contends that the Officer did not
exercise his discretion reasonably and that he was biased.
I. Background
[2]
The
Applicant is a citizen of Uzbekistan, born in 1974, who entered Canada on a visitor visa on April 5, 1999. This was the beginning of what would become a
long immigration history. Throughout the years, the Applicant applied for
refugee protection, a pre-removal risk assessment (PRRA), and permanent
residence on humanitarian and compassionate (H&C) grounds. These were
rejected on October 17, 2000, September 24, 2003, and September 25, 2008,
respectively.
[3]
On
both December 13, 1999 and January 16, 2002, the Applicant was issued one-year
work permits. On August 17, 2003, he sought a third work permit, but was
ineligible as a removal order against him had been issued by CBSA.
[4]
Since
2007, the Applicant has owned a registered tiling business and, since his last
work permit expired in 2003, he has worked continuously in Canada without authorization. He never reported his income to the Canadian tax authorities
or paid income tax, even though he knew of his duty to do so.
[5]
On
September 1, 2006, the Applicant married a Canadian citizen. Their first-born son
was born in Ottawa on October 27, 2007 and they divorced on November 15, 2008. The
Applicant’s ex-spouse moved to Turkey with their son and re-married. In February
2012, she and his first-born son returned to Canada and in September 2012, the
Applicant allowed his first-born son to return to Turkey temporarily with his
mother.
[6]
The
Applicant married another Canadian citizen – who had a 14-year-old son from a previous
marriage – in a religious ceremony held on October 1, 2011. Their marriage was
legalized on March 2, 2012.
[7]
By
letter dated February 29, 2012, the Applicant was directed to report to the
Officer for a pre-removal interview.
[8]
On
March 5, 2012, the Officer directed the Applicant to apply for a passport from
the Consulate General of the Republic of Uzbekistan in New York in view of his
imminent removal from Canada. Since the Uzbek Consulate does not issue
passports from abroad, the Applicant applied for a temporary travel document. He
contacted the Consulate General and was told that the information on file was
that he was in jail in Canada, awaiting his removal.
[9]
On
April 5, 2012, the Applicant applied for permanent residence, sponsored by his
spouse (Spousal Sponsorship Application).
[10]
During
a second pre-removal interview held on September 25, 2012, the Applicant signed
a direction to report for removal on October 23, 2012.
[11]
On
October 4, 2012, the Applicant and a paralegal employed by his counsel met the
Officer, who acknowledged that travel documents can be issued more quickly if
the subject of a removal order is in custody, but denied having informed the
Uzbek Consulate that the Applicant was in custody. The Applicant claims that
the Officer then told him that it was impossible to remain in Canada since his Spousal Sponsorship Application was doomed to fail.
[12]
In
the Officer’s affidavit, he denies this allegation and denies misinforming the
Uzbek Consulate.
[13]
On
October 5, 2012, the Applicant made a request for deferral of removal.
[14]
On
October 9, 2012, the Uzbek Consulate issued a temporary travel document to the
Applicant, valid only until December 8, 2012.
[15]
On
October 11, 2012, the Applicant and his spouse met the Officer without counsel,
as they were told that it would only be a routine check-in. The Applicant alleges
that the Officer then advised him not to contact the Uzbek Consulate since it
would not disclose the source of the error on the Applicant’s status and reiterated
that the Spousal Sponsorship Application would be rejected, possibly as early
as the following week; again, the Officer denies these allegations.
[16]
The
Officer allegedly accused the spouse of “liv[ing] off the Canadian system” and
told her to get a job, though she was seven months pregnant (Applicant’s Record
(AR) at 86).
[17]
During
that meeting, the Applicant signed a declaration of his income from
unauthorized work (the Declaration). He alleges that he previously notified the
Officer of his employment situation but had never been advised to cease working.
He claims that he signed the Declaration in the absence of his counsel and in a
state of extreme anxiety.
[18]
The
Officer denies any intimidation, duress, or evidence of fear on the Applicant’s
part and states that the Applicant did not request to speak with counsel.
[19]
On
October 11, 2012, a report was sent to Citizenship and Immigration Canada (CIC)
advising that the Applicant was inadmissible under subsection 30(1) and paragraph
41(a) of the IRPA for working without authorization (AR, above at
77-78).
[20]
The
Officer denies any interference in the processing of the Spousal Support
Application.
[21]
On
October 17, 2012, the Uzbek Consulate advised the Officer that it never had
information on file indicating that the Applicant was in custody, that they
never stated to anyone that he was in custody, and that in any event, whether
or not he was in custody was immaterial.
[22]
On
October 19, 2012, Justice Mosley granted the Applicant’s motion for a stay of his
removal scheduled for October 23, 2012.
[23]
At
the time of the decision at issue in the present case, the Applicant’s spouse
was pregnant with their child (the Applicant’s second son) and expected to
deliver on December 10, 2012. The Applicant’s second son was born on December
13, 2012.
II. Decision under review
[24]
The
Officer declined to exercise his limited discretion under section 48 of the IRPA
(as it read at the time) to defer the Applicant’s removal. He stressed that,
even if he chose to exercise his discretion, he was required to enforce the removal
order as soon as reasonably practicable.
[25]
The
reasons devote some attention to the Applicant’s history of working without
authorization in Canada and the failure to report his income to Canadian tax
authorities. The Officer noted that, with minor exceptions, the Applicant
worked in Canada without authorization since his arrival. The Officer reasoned
that previous applications for work permits show that the Applicant knew that
the IRPA required him to seek authorization before working in Canada. The Officer found the Applicant’s failure to report his income to Canadian tax
authorities and to pay income tax was inconsistent with his claim that he had
been a law-abiding, independent, and productive member of Canadian society.
[26]
The
Officer did not find that the Applicant’s removal would cause irreparable financial
harm to his family. First, the Applicant was ineligible to work in Canada under paragraph 183(1)(b) of the Immigration and Refugee Protection
Regulations, SOR/2002-227 [Regulations] and could not provide
financial assistance to his family members. Second, section 209 of the Regulations
invalidated any work permit issued under the Regulations when a removal
order made against the permit holder became enforceable; any financial
assistance provided by the Applicant to his family could not be considered in
disposing of his deferral request. Third, even if the Applicant could legally
work in Canada, he could not be considered a source of financial support for
his family since his gross income from his tiling business was approximately $1,250/month.
The Officer drew a negative inference from the Applicant’s failure to
substantiate his alleged income with supporting documentation.
[27]
The
Officer did not find that the Applicant’s first-born son would suffer
irreparable harm as a result of his removal because he played a minimal role in
his son’s life. Given that the Applicant’s first-born son had been living in Turkey since 2010, the Officer did not accept that the Applicant had direct contact or had
a strong emotional relationship with him. The Officer emphasized the
Applicant’s admission that his estranged spouse prevented him from contacting
or being involved with his first-born son and that he did not learn of their
temporary return to Canada in February 2012 until April 2012. His estranged
spouse’s departure from Canada for Turkey without his consent and his own
failure to seek a court order to obtain joint custody of his first-born son
also attested to his limited role.
[28]
Nor
did the Officer accept that the best interests of the Applicant’s first-born son
necessitated a deferral to allow him to fulfill his intention of applying for
joint custody. Citing Khamis v Canada, 2010 FC 437, the Officer
concluded that the best interests of the child test required him to look to the
best interests of the Applicant’s first-born son in the short term. The Officer
found that those interests would actually be enhanced by removing the Applicant
to Uzbekistan, where he could obtain a passport and travel by train to Turkey, as he had before coming to Canada. Moreover, it was uncertain whether his first-born son
would ever return to Canada or whether the Applicant would fulfill his
intention of applying for joint custody.
[29]
Furthermore,
the Officer did not accept that the Applicant’s stepson would suffer
irreparable harm. The Officer reasoned that any relationship of emotional
well-being between the Applicant and his stepson was relatively recent because
they only began to share the same household in September 2011. Nor would his
stepson’s best interests be compromised by any notable degree, as his stepson’s
biological father was still present in Canada.
[30]
In
the Officer’s view, neither the Applicant’s spouse nor his family unit as a
whole would suffer irreparable harm because the Applicant had no legal means of
providing financial support to her or to the family. The Officer found that
because the Applicant’s spouse had found it necessary to avail herself of
social assistance in the past, it was reasonable to assume that she would have
to do so again once their baby was born. Even though there was a relationship
of emotional support between the Applicant and his spouse (who has no family in
Canada), her strong community ties in Canada were sufficient to provide her with
emotional support.
[31]
The
Officer did not accept that the unborn child would suffer irreparable harm. The
Officer found that the Applicant had no legal means of supporting himself or
the child, that the child’s needs could be met by the spouse, and that social
programs would be required to meet his or her needs even if the Applicant were
not removed.
[32]
The
Officer found that the Spousal Sponsorship Application did not engage his
discretion to defer removal because such applications were not grounds to stay
a removal under section 50 of the IRPA. Deferring the removal on this basis,
moreover, was inconsistent with the requirement to enforce the removal order as
soon as reasonably practicable. A decision on the Spousal Sponsorship
Application was not imminent, given the lengthy processing times. The Officer
also noted that the Applicant submitted the Spousal Sponsorship Application
after learning that his removal from Canada was imminent and appears to have
projected that it would be refused. It was reasonable to expect that the
Applicant’s sponsor would be ineligible to sponsor him, as she was a likely
recipient of social assistance. The Uzbek Consulate’s refusal to issue
passports from abroad also suggested he would be unable to provide the required
valid travel documents in order for the Spousal Sponsorship Application to be
approved.
[33]
Finally,
the Officer decided that to defer the removal would be inconsistent with his
duty to enforce the removal order as soon as reasonably practicable, as the
Applicant’s temporary travel documents expired on December 8, 2012 and were
only issued after a long delay. There was no guarantee that a subsequent
document would be re-issued. It was not reasonably practicable to defer removal
until the second son was born since the last “reasonably possible” date for
removal was December 8, 2012.
III. Issues
1) Did the Officer
reasonably decline to exercise his discretion to defer the Applicant’s removal
until his second son was born or until his Spousal Sponsorship Application was
processed?
2)
Does a
reasonable apprehension of bias arise?
3)
Did the
Applicant have a right to counsel at the October 11, 2012 pre-removal interview?
IV. Relevant legislative provisions
[34]
The
following legislative provisions of the IRPA, as they then read, are
relevant:
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48.
(1) A removal order is enforceable if it has come into force and is not
stayed.
(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.
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48.
(1) La mesure de renvoi est exécutoire depuis sa prise d’effet dès lors
qu’elle ne fait pas l’objet d’un sursis.
(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.
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V. Position of the parties
[35]
The
Applicant argues that the Officer unreasonably exercised his limited discretion
to defer removal until it was reasonably practicable to enforce the removal
order.
[36]
In
particular, the Applicant submits that the Officer was not alert, alive and
sensitive to the best short-term interests of his second son. He infers this
from the comment that “the newborn infant child will not be aware of who is
providing his/her care, […] which [his spouse] is more than capable of
providing” and that the child “is entitled to benefit from all the social programs
and healthcare available…” (AR, above at 14).
[37]
The
Applicant argues that the Officer exercised his discretion based on the following
false or unsupported assumptions: (i) he was not a law-abiding or productive
citizen because of his failure to report his income to tax authorities; (ii)
community support would be forthcoming to his spouse; (iii) his spouse will be
ineligible to sponsor him because she is likely to avail herself of social
assistance; (iv) he must hold and submit valid travel documents for the Spousal
Sponsorship Application to be approved; and (v) a determination of the Spousal
Sponsorship Application was not imminent.
[38]
Finally,
the Applicant argues that a reasonable apprehension of bias arises because the
Officer pre-judged his case and would not be responsive to the totality of the
evidence. He argues that bias arises from the Officer’s: (i) demand that he
sign the Declaration without legal counsel; (ii) stereotyping and insensitive
comments to his spouse; (iii) alleged insistence that the Spousal Sponsorship
Application could be rejected as early as the following week; and (iv)
transmission of the Declaration to CIC even though it was signed in a state of
extreme anxiety and in the absence of counsel.
[39]
The
Respondent argues that the Court’s intervention is not warranted because the
issue of the pending birth is moot. The pending birth was the strongest reason
to support a short-term deferral; this factor became moot when the Applicant’s second
son was born.
[40]
The
Respondent adds that the Officer could reasonably decline to exercise his
discretion because the short-term interests of the Applicant’s family and the
Spousal Sponsorship Application were insufficient to warrant a deferral.
[41]
On
the first issue, the Respondent posits that: (i) the Officer had no discretion
to consider H&C factors; (ii) family separation and financial hardship do
not justify a deferral of removal; (iii) the Officer only had discretion to
consider the best interests of the second son in the short term; (iv) it was
reasonable to conclude that the Applicant cannot be considered a source of
financial support; (v) any impact on his first-born son was speculative; (vi)
any impact on his stepson would be minimal; and (vii) it was reasonable to
conclude that the spouse would have emotional support from the community since
she has been residing in Canada for 10 years.
[42]
The
Respondent further argues that it was reasonable for the Officer to decline to
exercise his discretion on the basis of the Spousal Support Application because;
(i) deferrals due to a process pending under the IRPA are only
justifiable if denying the deferral results in a risk of death, extreme
sanction, or inhumane treatment; (ii) the Spousal Support Application cannot be
granted unless the Applicant returns to Uzbekistan for a passport or travel
document; (iii) the Applicant is not entitled to an exception from the
requirement to have valid passport or travel documents and his assertion that
one might be granted on H&C grounds is speculative; (iv) the Officer could
reasonably conclude that a decision on the Spousal Support Application was not
imminent or likely to be determined by the expiry of the Applicant’s temporary
travel document; and (v) the requirement that the Applicant re-submit a spousal
sponsorship application from abroad does not justify a deferral of removal.
[43]
Finally,
the Respondent argues that no reasonable apprehension of bias arises since the
Applicant’s allegations are not supported by material evidence.
VI. Analysis
Standard of review
[44]
The
parties agree that the standard of review for assessing a decision-maker’s
discretion to defer removal is reasonableness. They also agree that a reasonable
apprehension of bias is determined on the correctness standard.
1)
Did the
Officer reasonably decline to exercise his discretion to defer the Applicant’s
removal until his second son was born or until his Spousal Sponsorship Application
was processed?
[45]
Section
48 of the IRPA required the Officer to enforce the removal order against
the Applicant as soon as reasonably practicable.
[46]
The
scope of an enforcement officer’s discretion to defer removal under section 48
is narrow (Canada (Minister of Public Safety and Emergency Preparedness v Shpati),
2011 FCA 286). In Baron v Canada (Minister of Public Safety and Emergency
Preparedness), 2009 FCA 81, Justice Nadon defined the scope of this
discretion by reference to the Minister's legal obligation to enforce the
removal order:
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:
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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.
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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.
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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.
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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.
I
agree entirely with Mr. Justice Pelletier's statement of the law.
[47]
First,
it might be the case that the refusal to defer the removal pending the birth of
the Applicant’s second son was unreasonable. That might very well be why
Justice Mosley granted the Applicant’s motion for a stay of his removal until
the present Application for judicial review is disposed of. However, this issue
is moot as the Applicant’s second son was born on December 13, 2012. In Ramirez
v Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC
500, Justice Near (as he then was) held that an argument to defer removal based
on the birth of a child became moot once the child was delivered. Citing Borowski
v Canada (Attorney General), [1989] 1 S.C.R. 342, Justice Near declined to
exercise his discretion to decide the matter on its merits.
[48]
Second,
the decision is reasonable in the sense that the Officer was alert, alive, and
sensitive to the best interests of the Applicant's children, just as he considered
the financial and emotional support he provided to his spouse and the family
unit.
[49]
As
Justice Russell held in Ren v Canada (Minister of Public Safety and
Emergency Preparedness), 2012 FC 1345, an enforcement officer lacks
jurisdiction to conduct a full H&C analysis of the best interests of any
child affected by the removal and is only required to consider those interests
in the short term (at para 41). Justice O'Keefe also stated that
"enforcement officers are not positioned to evaluate all the evidence that
might be relevant in an H&C application". While they must treat the
"immediate interests [of affected children] fairly and with
sensitivity", they need not substantially review those interests before
enforcing a removal order (Fernandez v Canada (Minister of Citizenship and
Immigration), 2012 FC 1131 at para 46).
[50]
Because
the Officer was not required to substantially assess the best interests of the
children, whether he drew incorrect inferences concerning the Applicant's tax
situation or the level of community support available to his spouse is
immaterial. The jurisprudence is clear that the subject of a removal order
cannot avoid its enforcement "simply because [he is one of the] parents of
Canadian born children" (Ramirez, above at para 20). Given the
limited jurisdiction of the Officer to conduct an H&C analysis, these
errors do not affect the reasonableness of the decision.
[51]
Even
if the Officer were required to conduct an in-depth H&C analysis, the
Officer's analysis would be reasonable in the context of a removal decision. Justice
Near's decision in Ramirez, above, provides a helpful analogy to this
Application:
In
this case, the Officer did consider the fact that the children would remain in
the care of their mother. The Officer also noted that the family knew that the
Applicant was under a removal order and that the wife and children had access
to all the social programs and resources available to all Canadians to assist
them. The Officer acted reasonably within the ambit of discretion afforded
them.
[52]
Third,
the Spousal Support Application was insufficient to engage the Officer's
discretion. Baron, above, states that deferrals should be reserved for
pending applications if "failure to defer will expose the applicant to the
risk of death, extreme sanction or inhumane treatment" (at para 51). The
Federal Court of Appeal affirmed this in Shpati, above: "The
present case is analogous to Baron in that there is no statutory stay of
removal pending the determination of either an H&C application or a
judicial review application with respect to a negative PRRA" (at para 42).
[53]
The
relevance of the alleged false or unsupported assumptions that the Officer made
about the Spousal Support Application is contingent on whether such an
application was sufficient to engage the Officer's discretion. Since the
application itself was insufficient to defer the removal, it is
immaterial whether the Officer’s assumptions about its imminence or the
Applicant’s ability to meet its conditions were false or unsupported.
[54]
The
alleged false or unsupported assumptions are not dispositive. Ogiriki v Canada (Minister of Citizenship and Immigration), 2006 FC 342, holds that a decision
that is “reasonable taken as a whole and should stand, even if a few
‘weaknesses’ were identified by the [a]pplicant” (at para 13).
[55]
Fourth,
the decision is not unreasonable because the Applicant will be required to
re-submit an application for permanent residence sponsored by his spouse from Uzbekistan. Justice Shore held in Artiga v Canada (Minister of Public Safety and
Emergency Preparedness), 2011 FC 1294 that this would not affect the reasonableness
of a removal decision because the Applicant knew he was subject to an
enforceable removal order and "could have chosen to submit an overseas
sponsorship application or an inland application on Humanitarian and
Compassionate (H&C) grounds, either of which would continue to be processed
after his removal from Canada" (at para 53). Artiga, above, is
analogous to this Application because the Spousal Sponsorship Application was
made after the Officer directed the Applicant to apply for a new passport in
view of his imminent removal from Canada.
2)
Does
a reasonable apprehension of bias arise?
[56]
In
Committee for Justice & Liberty v Canada (National Energy Board),
[1978] 1 S.C.R. 369, Justice de Grandpré outlined the following general test for
determining if a reasonable apprehension of bias arises:
[T]he
apprehension of bias must be a reasonable one, held by reasonable and right
minded persons, applying themselves to the question and obtaining thereon the
required information. In the words of the Court of Appeal, that test is
"what would an informed person, viewing the matter realistically and
practically--and having thought the matter through--conclude. Would he think
that it is more likely than not that [the decision-maker], whether consciously
or unconsciously, would not decide fairly." (at p 394).
[57]
In
Arthur v Canada (Attorney General), 2001 FCA 223, the Federal Court of
Appeal elaborated on what is required to establish bias:
An
allegation of bias, especially actual and not simply apprehended bias, against
a tribunal is a serious allegation. It challenges the integrity of the tribunal
and of its members who participated in the impugned decision. It cannot be done
lightly. It cannot rest on mere suspicion, pure conjecture, insinuations or
mere impressions of an applicant or his counsel. It must be supported by material
evidence demonstrating conduct that derogates from the standard. (at para 8)
[58]
I
do not think that an informed person, viewing the Officer’s decision
realistically and practically (and having thought the matter through) would
conclude that it was more likely than not that the Officer would, consciously
or unconsciously, not decide fairly.
[59]
As
for the Applicant’s allegations that the Officer had demonstrated, in his
handling of the Applicant’s file and during the meetings held on October 4 and
October 11, 2012, that he had pre-judged this case, suffice it to say that the
evidence on the subject is highly contradictory. Since neither party was
cross-examined on their affidavit, I am unable to find that the Applicant has
proven his allegations on the balance of probabilities.
[60]
Even
if I were to favour the Applicant’s account of the events, it would not be
sufficient to invalidate the decision in the present circumstances.
[61]
First,
the allegations that the Officer insisted at the October 4, 2012 meeting that
the Spousal Support Application would fail and that he insisted at the October
11, 2012 meeting that it could be rejected as early as the following week do
not establish bias. The second allegation lacks a ring of truth, given that the
Officer’s reasons relied heavily on his finding that a decision on the Spousal
Support Application was not imminent. The grounds for a reasonable apprehension
of bias must be “substantial” (Committee for Justice & Liberty,
above at 395). These allegations do not support the inference that the Officer
had so made up his mind that any representations were likely to be ineffective.
[62]
Second,
there was no material evidence that the Uzbek Consulate had information that
the Applicant was in custody or that the Officer so misinformed the Consulate.
An email from the Vice Consul of the Republic of Uzbekistan confirms this: “The
Consulate General of Uzbekistan in New York had no information whether Mr.
Ikrom Ahmedov was detained or not. Moreover, according to the Consulate
procedure a secretary who answers to phone calls is not [a] consular officer
and could not give any information about Uzbekistan citizens’ travel documents
in process as she does not have access to these files” (Respondent’s Record at
40).
[63]
Third,
the Officer’s request that the Applicant sign the Declaration in the absence of
counsel and in a state of extreme anxiety is insufficient to establish a bias
finding. These allegations rest on pure conjecture and do not establish that
the Officer had a closed mind. Moreover, Justice Snider held in Ghirmatsion
v Canada (Minister of Citizenship and Immigration), 2011 FC 519 that
questioning in a harsh manner does not in itself raise a reasonable
apprehension of bias (at para 114). The same could be said about the Applicant’s
allegation regarding the officer’s collection of information necessary to
assess irreparable harm.
[64]
Finally,
the October 11, 2012 report to CIC was not improper. Since the Officer was of
the opinion that the Applicant was inadmissible, subsection 44(1) gave him discretion
to prepare a report setting out the relevant facts to be transmitted to the
Minister. The Applicant was without a work permit since 2003 and waited until
he received a removal order to apply for a new one (at the hearing, he filed a
work permit issued on April 9, 2013 and valid until March 25, 2014). The
Applicant does not provide any other material evidence to support his claim
that the Officer interfered in the Spousal Support Application. If the outcome
of that application shows undue interference, the Applicant will have the right
to seek judicial review of that decision before the Court.
3)
Did
the Applicant have a right to counsel at the October 11, 2012 pre-removal
interview?
[65]
The
Applicant has asked the Court to certify the following question:
Is
an Applicant’s right to counsel triggered when the enforcement officer
interviews him or her for the purpose of collecting information that may have
an impact on his or her request for deferral of removal, and where the
Applicant has made it known to the officer beforehand that he or she has
retained counsel?
[66]
The
test for certification is set out in paragraph 74(d) of the IRPA
and subsection 18(1) of the Federal Courts Immigration and Refugee
Protection Rules, SOR/93-22. The threshold required for certifying a
question is whether “there is a serious question of general importance which
would be dispositive of an appeal” (Zazai v Canada (Minister of
Citizenship and immigration),
2004 FCA 89 at para 11, citing Bath
v Canada (Minister of Citizenship and Immigration), [1999] FCJ 1207).
[67]
The
scope of the right to counsel in pre-removal interviews that lead to the
preparation of a subsection 44(2) inadmissibility report has been considered by
the Federal Court of Appeal in Cha v Canada (Minister of Public Safety and
Emergency Preparedness), 2006 FCA 126.
[68]
It
was held in that case, at para 54, that (in the absence of a Charter right
to be notified of a right to counsel on arrest or detention) an interviewee is
not “entitled as of right to be notified before a hearing that he or she has
either a statutory right or a duty-of-fairness right to counsel”. If the
interviewee “is sufficiently informed of the object and possible effects of a
forthcoming hearing” (at para 54), there is no procedural fairness duty to
inform an interviewee in the context of a pre-removal interview of the right to
counsel.
[69]
First,
since the question has already been decided by the Federal Court of Appeal, it
will not be certified under the present judgment.
[70]
Second,
in the case at bar, the Applicant argues that he did not receive proper notice
of the object of the interview but that he was rather advised that it would
only be a routine check-in. It could be that this did not meet the duty of the
Officer to inform him of the object of the interview and, as said in obiter
in Cha, the decision should be set aside for that single reason.
However, as also stated in obiter in Cha, the decision of the
Supreme Court of Canada in Mobil Oil Canada Ltd v Canada-Newfoundland
Offshore Petroleum Board, [1994] 1 S.C.R. 202 suggests that it would be
inappropriate to grant the present Application. In its discussion of the
circumstances in Cha, above at para 67, and the doctrine in Mobil Oil,
above, the Federal Court of Appeal stated that because “a new hearing before a
different Minister’s delegate could only result, again, in the issuance of a
deportation order, to order a new hearing would be an exercise in futility”. This
comment fully applies to the present Application, as the Applicant was already
under a removal order and the only issue raised which could have justified a
deferral of the Applicant’s removal in the circumstances was the pending birth
of his second child, which is an issue that is now moot.
VII. Conclusion
[71]
For
the foregoing reasons, the Application for judicial review is dismissed. No
question of general importance is certified.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The
Application for judicial review is dismissed.
2. No
question of general importance is certified.
3. No
costs are granted.
“Jocelyne Gagné”
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