Date:
20130626
Docket:
IMM-7680-12
Citation:
2013 FC 713
Ottawa, Ontario,
June 26, 2013
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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MAURICIO ANDRES
URIBE MENESES
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Applicant
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and
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MINISTER OF PUBLIC SAFETY
AND EMERGECY PREPAREDNESS
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant seeks judicial review of a decision by a Canada Border Service Agency
enforcement officer (Officer) who refused to defer the applicant’s removal from
Canada. While there are aspects of the decision which are troubling, they do
not amount to an error. The application for judicial review will therefore be
dismissed.
[2]
The
applicant is a citizen of Chile. In 2009, he entered Canada on a work permit but was found to have violated its terms and conditions. The
applicant met his common-law spouse, a Canadian, in March of 2010. They began
living together in October of that year. The applicant applied for permanent
residence under the spouse or common law partner in Canada class. The
applicant received a negative Pre-Removal Risk Assessment (PRRA) on July 3,
2012, and was directed to report for removal on August 6, 2012. He requested
that the Officer defer his removal pending the assessment of his outstanding
inland sponsorship application in light of the best interests of his
wife’s two children.
[3]
The
applicable standard of review is reasonableness: Baron v Canada (Minister of Public Safety & Emergency Preparedness), 2009 FCA 81, para 25.
This Court will only intervene if the decision falls outside of the “range of
possible, acceptable outcomes which are defensible in respect of the facts and
law”: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, para
47.
[4]
Subsection
48(2) of the Immigration and Refugee Protection Act, SC 2001,
c 27
then provided that a removal order must be enforced “as soon as is reasonably
practicable.”
[5]
An
enforcement officer’s discretion to defer removal is limited and should be
exercised only in respect of circumstances directly applicable to removal: Wang
v Canada (Minister of Citizenship and Immigration), [2001] 3 FC
682; Baron, para 51. Circumstances that may justify a deferral include
illness, other impediments to travel, safety concerns, children's school years
and pending births and deaths: Baron, paras 49-51.
[6]
The
applicant has not identified any error in the decision. The Officer appreciated
that she had limited discretion to defer removal, but determined that the
hardship faced by the applicant and his family did not rise to the level which
justifies a deferral. Most of the considerations raised here as justification
for a deferral are more appropriate considerations in an application for
humanitarian and compassionate (H&C) relief. They do not fall within the Baron
and Wang criteria.
[7]
The
applicant has raised two primary arguments. The first is the statement of the
Officer that there was no evidence that the applicant would be separated from
his spouse indefinitely, or that his spouse and children would not be able to
visit him in Chile. The later factor does not withstand scrutiny, given the
evidence of his spouse’s low income. It is self-evident that purchasing return
air tickets to Chile for a family of three is unrealistic in her circumstances.
This said, I do not consider the issue to have a material bearing on the
question of deferral of removal, although it would be material to an H&C
determination.
[8]
Turning
to the second item of concern, the Officer’s observation that there was no
evidence that the separation would be indefinite, this is clearly an error in
the exercise of discretion. There is no requirement that the separation be
permanent. I am satisfied, however, that reading the decision as a whole, the
Officer did not fetter her discretion; indeed, the Officer concludes later that
while the separation will cause hardship, it will be no more than temporary.
Reading the decision as a whole, I do not believe that the Officer assessed the
request against a standard of permanent separation.
[9]
The
Officer does not address the fact that removal will mean that the months spent
waiting for stage 1 approval will evaporate and that the applicant will be
required to re-commence his spousal application as an out-of-Canada applicant.
This too is a factor that bears on the H&C case, rather than the exercise
of discretion by a removals officer.
[10]
The
Officer considered the pending sponsorship application and found that a
decision was not imminent. The applicant applied for sponsorship two months
after receiving his call-in notice, on January 10, 2012, outside of the period
where he would receive an automatic stay. The expected processing time was
approximately 11 months for the first stage of the assessment.
[11]
A
pending in-Canada spousal application may only justify deferral if a decision
appears to be imminent: Ramirez v Canada (Minister of Public Safety and
Emergency Preparedness), 2010 FC 706, paras 17, 18. The Officer considered
the expected processing times and determined that there was insufficient
evidence to conclude that a decision was imminent.
[12]
The
Officer considered the applicant’s separation from his wife and the economic
hardship she may experience without his support. The Officer concluded that
she may be able to visit him in Chile and may be able to sponsor him for
permanent residence from abroad. With regards to economic hardship, the
applicant’s wife is employed and would be entitled to social assistance in Canada should she require it. The Officer considered the argument that she may become homeless
to be speculative and unsupported by the evidence.
[13]
Finally,
the Officer considered the best interests of the affected children. The
children will continue living with their mother, who will help them adjust to
the applicant’s absence. The Officer considered the young boy’s difficulties
in school, but concluded that there was no evidence that the applicant assisted
him with schoolwork. The Officer was not required to undertake a substantive
review of the best interests of the affected children: Baron, paras
49-51.
[14]
In
the circumstances, I consider the analysis to be sufficient.
[15]
The
Officer reasonably concluded that the applicant’s circumstances are not such
that his removal falls within the circumstances contemplated by Wang and
Baron. The application for judicial review is therefore dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed. There is no question for certification.
"Donald J.
Rennie"
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