Docket:
IMM-10568-12
Citation: 2013 FC 1111
Ottawa, Ontario, October
30, 2013
PRESENT: The Honourable Mr. Justice de Montigny
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BETWEEN:
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VALENTINA LAGUTO
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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REASONS FOR JUDGMENT AND JUDGMENT
OVERVIEW
[1]
This is an application by Valentina Laguto (the Applicant)
for judicial review of a decision of Enforcement Officer Brad Hansen (the
Officer) of the Ottawa branch of the Canada Border Services Agency (CBSA),
refusing to defer the Applicant’s removal to Russia pending the outcome of an
application for permanent residence on humanitarian and compassionate grounds (the
H&C application). The Applicant’s H&C application was officially
accepted for processing on August 27, 2012.
[2]
On October 18, 2012, Justice Tremblay-Lamer
heard a motion by the Applicant for an order granting a stay against her
removal to Russia, then scheduled for October 21, 2012. Justice Tremblay-Lamer
granted the stay of the removal order. On March 14, 2013, Justice
Tremblay-Lamer granted leave to commence this application for judicial review.
[3]
While I am sympathetic to the position of the Applicant,
I note that the period of time for which she sought a deferral of removal
(eight months) has now passed. Having carefully considered the findings of
Justice Tremblay-Lamer and her determination that this application for judicial
review raises serious issues, I have nevertheless concluded for the reasons set
out below that the Officer’s decision likely falls “within a 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 at para 47 [Dunsmuir]).
FACTS
[4]
The Applicant was born on June 26, 1943, in the
city of Minsk (then part of the former USSR and the capital city of Belarus
since 1991). She is now 70 years of age and holds Russian citizenship.
[5]
The Applicant’s husband of more than 45 years,
Juan Gualberto Hernandez Himely, is a Cuban citizen now living in Canada. Despite being refused refugee protection, Mr. Himely has been permitted to remain
in Canada since he is the subject of a deportation order that is unenforceable
as a result of Cuba’s policies on citizens who overstay their exit visas.
[6]
The Applicant and her husband met when Mr.
Himely was studying in the USSR and they married on December 24, 1966. In
August 1969, the couple left the USSR to live in Cuba and resided there until
2010. In 1993, following the collapse of the USSR, the Applicant applied for
and obtained Russian citizenship since she found herself stateless and Belarus
did not have an embassy in Cuba at the time.
[7]
The Applicant’s daughter was accepted as a refugee
in Canada in 1992 and is now a Canadian citizen, married with two children.
The Applicant has a brother and sister living in Belarus, whom she has visited
on occasion, and another daughter living in Italy. The Applicant has never
been to Russia, although she lived her first 26 years in the USSR.
[8]
On April 27, 2010, the Applicant and her husband
arrived in Canada on temporary resident visas valid from February 12, 2010
until February 12, 2011. In June 2010, they filed refugee claims and the
Applicant became the subject of a section 44 report for entering Canada with
the intention to establish permanent residency status, without first applying
for or obtaining the appropriate visa.
[9]
The couple’s refugee claims were both rejected
by the Refugee Protection Division (RPD) on November 14, 2011. The RPD
summarily rejected the Applicant’s claim given that her fears of persecution
related to Cuba and she made no claims against her country of citizenship
(Russia). Her husband’s claim was rejected because the RPD found that there
was no credible basis to his claim and that, on a balance of probabilities, he
had it within his control to acquire Russian citizenship.
[10]
The Applicant submitted a pre-removal risk
assessment (PRRA) application on January 5, 2012, but it was closed due to the
one year PRRA bar. An H&C application filed on May 7, 2012 was rejected
for non-payment on August 14, 2012. On August 27, 2012, processing of the
Applicant’s H&C application was commenced as all fees had been paid.
[11]
On August 28, 2012, the Applicant attended a
pre-removal interview. She was advised that removal was imminent and that she
should inquire with the Cuban and Russian embassies about the possibility of “refoulement”.
The Applicant has no family in Russia and the Russian embassy informed her that
she should not expect it to assist her with questions regarding housing, living
expenses or her medical conditions upon her removal to Russia. She was advised
at the Cuban consulate that she may be able to return to Cuba, but that she would require a special entry permit, would have no pension, and would
have no access to any of the couple’s former properties or bank accounts as
they have been confiscated by the government.
[12]
A second pre-removal interview was conducted on
September 21, 2012 and the Applicant signed a Direction to Report for Removal,
scheduled for October 21, 2012.
[13]
On October 5, 2012, the Applicant’s counsel
submitted a request for the deferral or indefinite stay of the removal order
against the Applicant. Since arriving in Canada, the Applicant has provided
child care for her two grandsons, aged 2 and 8. She argues that there are a
variety of H&C grounds justifying her request for a deferral of her removal
order until the H&C application of both she and her husband, are
decided. Her request, however, was rejected on October 10, 2012, in a decision
that is the subject of this application for judicial review.
[14]
As discussed above, by Order dated October 18,
2012, Justice Tremblay-Lamer granted a stay of removal until the determination
of this application for judicial review.
DECISION UNDER
REVIEW
[15]
After considering the information presented by
counsel and the issues raised, the Officer concluded that a deferral of the
execution of the removal order would not be appropriate in the circumstances of
this case. In particular, while counsel had requested that the CBSA exercise
its discretion to defer the removal order for eight months (i.e. until early
June 2013) in order to enable the first stage assessment of the H&C application,
he noted that there was “absolutely no reasonable expectation” that the
application would have reached stage one processing in that time frame. Noting
that an enforcement officer has limited discretion to defer a removal order and
that, if such discretion is exercised, he must do so while continuing to
enforce the order as soon as reasonably practicable, the Officer concluded that
a time frame of 30 to 42 months does not comply with the mandate stipulated in
the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”
or “Act”).
[16]
In describing the background to the Applicant’s
claim, the Officer noted that, while Belarus maintains a diplomatic presence in
Canada, there is no evidence that the Applicant has approached the Embassy “in
order to attempt to obtain status in the country to which the city that she was
born, raised and spent the first 26 years of her life in, now belongs”
(Decision, p. 2). In addition, he concluded that, based on prior interviews,
the Applicant and her husband made a conscious decision not to return to Cuba
within the required time frame, despite being aware of the serious
repercussions of that choice, as described by the Cuban Embassy.
[17]
The Officer then went on to consider the three
fundamental questions justifying the stay of the removal order as proposed by
counsel. With respect to the best interests of the Canadian children, the
Officer acknowledged that the Applicant provided care and cultural and
linguistic instruction for her two young grandchildren, but found that their
mother could also provide such instruction and had managed to arrange for
alternative care prior to 2010. As such, the Officer was not convinced that a
deferral of removal was warranted on these grounds.
[18]
Counsel for the Applicant had also raised the
misleading and conflicting information provided by CBSA and Citizenship and
Immigration Canada (CIC) on the status of the H&C application process. The
Officer found that this concern was no longer relevant, given that the
Applicant’s H&C application had been accepted for processing on August 27,
2012.
[19]
Finally, the Officer considered the H&C grounds
raised by the Applicant. He addressed the conditions the Applicant would face
if removed to Russia and the harm such removal would have on the Applicant and
her husband. He found that submissions related to the one-year bar on H&C
applications were irrelevant as the Applicant’s H&C application had been
accepted.
[20]
In analyzing the above H&C grounds for
deferral, the Officer noted that the Applicant would not be under any
obligation to remain in Russia upon arrival, that she would not require a visa
to enter Belarus (where she has previously visited family and could seek
residency), and that she has a daughter who resides in Italy who may be able to
offer accommodations for her.
[21]
As for the separation of the Applicant from her
husband, the Officer noted the RPD’s finding that the husband could not point
to any impediments that would prevent him from obtaining Russian citizenship
and cited documentary evidence suggesting there may be a simplified citizenship
application process for spouses of citizens. In addition, the Officer found
that with the help of family in Belarus or Italy, the Applicant could possibly
domicile in one of these two countries and obtain permission or invitation for
her husband to join her. With respect to the separation of the Applicant and
her daughter and grandchildren, the Officer noted simply that other options
exist for the Applicant to seek to obtain legal status to enter and remain in
Canada at a later date, from outside the country.
ISSUES
[22]
Upon a review of the parties’ submissions, it
appears that the overriding issue is whether the Officer’s decision is
reasonable. Before looking into this issue, however, the Court must determine
if this application is moot, given the requested eight-month deferral period
has effectively expired.
ANALYSIS
[23]
Although the parties have not dealt with the
standard of review, it is clear that the Officer’s decision is reviewable on
the standard of reasonableness: Baron v Canada (Minister of Public Safety
and Emergency Preparedness), 2009 FCA 81, at para 25 [Baron]; Fernandez
v Canada (Minister of Citizenship and Immigration), 2012 FC 1131, at paras
40-42. As a result, this Court will not intervene if the decision is
justified, transparent and intelligible, and if it falls “within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law”: Dunsmuir, above, at para 47.
[24]
On the last page of her request for the deferral
of her removal, the Applicant (through her counsel) requested the CBSA to
exercise its discretion to defer the removal order for eight months. This
deferral, according to counsel, “would enable the first stage assessment of the
H&C application”. Yet, on the first page of her request, the subject line
reads as follows: “Re: Valentina LAGUTO – Request for Deferral of Removal Order
and indefinite Stay of Removal order based on Humanitarian & Compassionate
grounds (ID: 5672-0508)”. Similarly, on the fax cover page included at page 17
of the Motion Record, counsel for the Applicant writes: “We request that the
removal order for Ms Valentina LAGUTO be deferred and/or stayed indefinitely”.
[25]
It is clear that if the request was for a
deferral of eight months, as the Officer characterized it in his decision, the
application for judicial review should be considered moot. The deferral period
requested in the Applicant’s letter expired on June 5, 2013, and it is clear
from the decision of the Court of Appeal in Baron, above, at paras 29-31,
that the passing of a scheduled removal date renders an application for
judicial review moot once a stay has been granted.
[26]
When properly characterized, however, I believe
what the Applicant is seeking is a deferral of her removal until the
determination of the first stage of her H&C application. At the hearing,
counsel for the Applicant explicitly stated that the eight-month deferral was
an alternative argument, probably made on the mistaken belief that a
time-limited request would be more easily granted and that it would most likely
be sufficient for the H&C application to reach the first stage of the
process.
[27]
Be that as it may, the Respondent does not query
the timeliness of this application and describes the request as seeking
deferral “until the determination of the first stage of [the Applicant’s]
application for permanent residence on humanitarian and compassionate grounds”
or “until her H&C application reached the first stage, which she claimed
would take 8 months” (Respondent’s Memorandum of Argument, paras 1 and 4).
Given that description, it is clear that this application is not moot, since
what the Applicant is really seeking is a deferral of her removal until the
determination of her H&C application. As the Court of Appeal stated in Baron:
[29] I agree entirely
with the parties that the determination of the mootness issue depends on the
proper characterization of the controversy that exists between them. In this
regard, the parties implicitly concede that if the characterization of the
dispute as found by the Judge, i.e. “whether an applicant should be removed,
and is obliged to leave, on the scheduled removal date” (paragraph 45 of her
reasons), is correct, then the judicial review application is moot. However,
they submit that the proper characterization is whether the appellants should
be removed prior to the determination of their H&C application. At
paragraph 33 of his Memorandum of Fact and Law, the respondent formulates his
submission as follows:
33. The correct
characterization of the controversy, however, is whether an applicant should be
removed prior to the happening of a particular event, such as prior to
the determination of a pending H&C application. It is then not the passing
of the removal date which renders the judicial review application moot, but the
happening of the event. This characterization of whether removal is reasonably
practicable prior to the happening of the event is entirely consistent with the
enforcement officer’s mandate under section 48 of the IRPA to execute a
removal order as soon as reasonably practicable. It is this characterization
of the controversy that the Applications Judge should have adopted, and erred
in failing to do so.
[30] Since the
appellants’ H&C application had not been dealt with at the time of the
hearing before the learned Applications Judge [and I am not aware of any
determination having been made since Dawson J. rendered her decision], the
parties take the position that the controversy still exists between them and
thus that the matter is not moot.
[31] In my view, the
parties have properly characterized the nature of the controversy which exists
between them. (…)
(…)
[38] Thus, in my
view, since the event which the appellants invoke in seeking a deferral has not
occurred, I cannot see how it can be said that there is no existing controversy
between the parties and that no practical effect can result from a decision on
the judicial review. While the specific timing of the removal arrangements which
had been made prior to the issuance of the stay by O’Keefe J. is no longer
valid, this does not, in my respectful view, render the issues raised in the
judicial review application moot. The concrete or real controversy between the
parties, i.e. the execution of the removal order prior to the determination of
the appellants’ H&C application, remains alive.
[28]
Having found that the issue is not moot, I will,
therefore, examine the reasonableness of the decision made by the Officer.
[29]
The Applicant submits that the Officer’s most
serious error results from his presumption that the 30 to 42 months processing
period for H&C applications fettered his discretion to defer removal until
the H&C application was processed, as he had an obligation to enforce a
removal order “as soon as reasonably practicable”. The Applicant cites case
law in support of her argument that, where exigent personal circumstances justify
it, particularly those involving children, removal can be deferred. According
to the Applicant, although no jurisprudence is provided in support, this
extension can be granted for as long as is required.
[30]
When the Officer states that “a time frame of
30-42 months does not comply with the mandate stipulated in the Immigration and
Refugee Protection Act”, there is no doubt that he is referring to his
statutory duty to “enforce a removal order as soon as reasonably practicable”,
as section 48(2) of IRPA read at the time of his decision. In Wang v
Canada (Minister of Citizenship and Immigration), [2001] 3 FC 682,
Justice Pelletier interpreted this obligation in the following way:
[45] The order whose
deferral is in issue is a mandatory order which the Minister is bound by law to
execute. The exercise of deferral requires justification for failing to obey a
positive obligation imposed by statute. That justification must be found in
the statute or in some other legal obligation imposed on the Minister which is
of sufficient importance to relieve the Minister from compliance with section
48 of the Act. In considering the duty imposed and duty to comply with section
48, the availability of an alternate remedy, such as a right of return, should
weigh heavily in the balance against deferral since it points to a means by
which the applicant can be made whole [page705] without the necessity of
non-compliance with a statutory obligation. For that reason, I would be
inclined to the view that, absent special considerations, an H&C
application which is not based upon a threat to personal safety would not
justify deferral because there is a remedy other than failing to comply with a
positive statutory obligation.
See also: Baron,
above, at para 51.
[31]
One of the special considerations which may
warrant deferral in the face of an H&C application is where the H&C
application was brought on a timely basis but has not yet been determined due
to a backlog in the system: Guan v Canada (Minister of Public Safety and
Emergency Preparedness), 2010 FC 992, at para 41. Indeed, this Court has
found that a failure to consider such a factor could justify overturning a
decision where it is impossible to say whether the Officer’s decision would
have been the same had he considered the issue: Lisitsa v Canada (Minister
of Citizenship and Immigration), 2009 FC 599 [Lisitsa]; Nucum v
Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC 1187
[Nucum]. In the case at bar, the Officer did not explicitly consider
whether special circumstances for discretionary deferral of removal could exist
when an H&C application is in the 30 to 42 months backlog for processing
applications. This is obviously what prompted Justice Tremblay-Lamer to find
that the Officer’s conclusion regarding the timeliness of the application raises
a serious issue worthy of consideration.
[32]
However, this Court has questioned whether a
long-pending H&C application is sufficient on its own to justify a deferral
in recent jurisprudence. A strong argument can be made, on the basis of the
decision of the Court of Appeal in Baron, that deferral based on a
long-standing and timely H&C application should only be considered where a
threat to an applicant’s personal safety has been established: Ponce Moreno
v Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC
494. I need not decide this issue in the context of the present case, nor was
the Officer required to consider if special circumstances for discretionary
deferral of removal could exist when an H&C application is in the 30 to 42
months backlog for processing applications, as the H&C application had only
just been submitted in the case at bar. In that respect, this case is quite
different from the Nucum and Lisitsa cases, where the H&C
applications had been pending for significantly longer than this application.
[33]
On the facts that were before the Officer, I am
unable to conclude that his decision was unreasonable. This is not a case
where it could be said that the Officer may have exercised his limited
discretion to find that the Applicant’s personal circumstances justified
deferral, but for a conclusion that the 30 to 42 months period prevents him
from enforcing the removal order as soon as reasonably practicable.
[34]
In the same vein, I am also of the view that the
question whether an officer should consider timeliness in terms of when the
application was filed instead of when it will be decided is immaterial and
irrelevant in the circumstances of the present case. As discussed above, one
of the “special considerations” noted on occasion by this Court that may
warrant deferral in the face of an H&C application is where the H&C
application was brought on a timely basis but has not been determined due to a
backlog in the system: Williams v Canada (Minister of Public Safety and
Emergency Preparedness), 2010 FC 274, at para 36 [Williams]; Simoes
v Canada (Minister of Citizenship and Immigration), [2000] FCJ no 936, at
para 12.
[35]
The calculation of timeliness in terms of when
an application will be decided rather than when it was filed has been
recognized as raising a serious issue both by Justice Tremblay-Lamer in the
current matter and by Justice Lemieux in Bhagat v Canada (Minister of Public
Safety and Emergency Preparedness), 2009 FC 45 at paras 16-18 [Bhagat].
In Bhagat, merely concluding that an H&C application is subject to a
long processing period (30 months in that case) and that a decision is not
imminent, was found not to constitute a proper assessment of whether an
application had been filed in a timely manner.
[36]
Apart from stating that “this application was
only received on August 27th, 2012”, the Officer has not explicitly
considered whether the application was submitted in a timely fashion. It is
not obvious on the facts of this case whether the filing was timely or not.
The Respondent argues that the H&C application was submitted two and a half
years after the Applicant arrived in Canada, suggesting that this should not be
considered timely; however, the timeline in the Officer’s decision suggests
that the Applicant first submitted an H&C application on May 7, 2012, less
than six months after her refugee claim was rejected (November 14, 2011),
approximately four months after her PRRA application was filed (January 5,
2012) and prior to the PRRA application being closed (August 20, 2012). While
we see that the first H&C application was rejected for non-payment on
August 14, 2012, payment was received on August 27, 2012 and the Applicant’s
counsel states that the application was resubmitted with payment on August 23,
2012.
[37]
The Officer provides no analysis as to whether
timeliness should be considered in relation to the first date of filing or the
date payment was received. In addition, he does not suggest that the
application was not made in a timely manner, but merely finds, as was censured
in Bhagat, that given the date submitted, the request for a deferral was
unreasonable.
[38]
The effect of this omission would seem
immediately problematic if not for the fact that the Applicant’s request for
deferral was for an eight-month period and that her application had been
pending for less than two months at the time of the Officer’s decision.
Instead of considering whether it was reasonable to defer the removal until a
first stage determination had been made, the Officer could reasonably respond
to the request merely by suggesting that the eight-month period would not be
sufficient to provide the Applicant with the remedy she sought. While the
Officer relies solely on his own experience (albeit with dozens of files) in
making this determination, his expectation appears to have proven accurate, as
no first stage decision had been rendered and the eight-month deferral
requested had essentially elapsed at the time of the hearing.
[39]
Was it reasonable for the Officer, though, to
limit his analysis to the specific period of time proposed by the Applicant in her
request? Despite the fact that the Applicant’s counsel tied the request to the
first stage assessment of the H&C application, I do not think it can be
said that it was unreasonable for the Officer to make his decision in relation
to the specific period of time requested by the Applicant. Even if the request
had been tied solely to the first stage assessment of the H&C application,
it remains unlikely that the Officer’s failure to consider the timeliness of
the application would constitute a determinative error on the facts of this
case. Assuming that the application was made in a timely manner, the
Respondent is correct to submit that the Applicant has failed to establish that
the H&C application was not determined due to a backlog in the system.
[40]
While it may seem unfair that the projected
processing time appears to be increasing at an exponential rate (from 18 months
in 2009 to 30 to 42 in 2012) and one might argue that the Minister is
essentially sidestepping its duty to promptly process applications for landing
by advertising increasingly lengthy processing times, the application in the
case at hand had been pending for less than two months at the time the
Officer’s decision was made. Although there may be an overriding backlog in
the system as a whole, it was not unreasonable for the Officer to conclude on
the facts of this case that a decision was not imminent, regardless of the
overall processing time. The Officer was asked in essence to delay removal
indeterminately because the date of the decision on the H&C application was
unknown and unlikely to be imminent. Considering the limited discretion
granted to an enforcement officer to defer removal, his decision cannot be
considered unreasonable given the facts of this case.
[41]
It is only where an application is timely and
has not yet been determined due to a backlog in the system that an officer is
required to turn his mind to whether a deferral is warranted as a result of a
pending H&C application: see Williams, above, at para 38. While I
agree that the government should not be permitted to refuse to defer removal
based solely on their own backlog, I am satisfied, for the reasons set out
above, that it was not a reason for the decision in this case.
[42]
Even if one were to consider the other special
circumstances put forward by the Applicant to justify a deferral of her
removal, namely the best interests of the Applicant’s grandchildren, the
separation from her husband, her frail health and the fact that she has no ties
to Russia, I agree with the Respondent that the evidentiary record before the
Officer was slim. Despite this lack of evidence and considering his limited
discretion which is to be distinguished from that of a CIC officer tasked with
considering H&C grounds under section 25 of IRPA, the Officer
nevertheless conducted a reasonable assessment of the Applicant’s arguments.
[43]
First, the Officer was “alert, alive and
sensitive” to the best interests of the Applicant’s grandchildren, as required
by the jurisprudence of the Supreme Court of Canada and of the Federal Court of
Appeal (Baker v Canada (Minister of Citizenship and Immigration), [1999]
2 SCR 817, Hawthorne v Canada (Minister of Citizenship and Immigration),
2002 FCA 475, [2003] 2 FC 555, and Legault v Canada (Minister of
Citizenship and Immigration), 2002 FCA 125). They would have access to
social and public services available to all Canadians, and they would remain in
Canada under the loving care of their parents. They could have access to other
care, which was available to the children before their grandmother arrived in
Canada. The Applicant’s daughter, who was born and raised in Cuba and is
fluent in Spanish, will also be able to pass on her cultural background and
native language. As a result, I agree with the Respondent that the Officer
went further than is required in his consideration of the best interests of the
children.
[44]
Second, the Officer was sensitive to the
potential impact on the Applicant’s husband, a Cuban citizen. The Officer
properly noted that the husband himself agreed that he could obtain Russian
citizenship. The Applicant has not refuted the Officer’s finding that her
husband could join her in Russia or contested his interpretation of a Russian law
regarding citizenship or a document suggesting she would not require a visa to
enter Belarus. While I accept both the Applicant’s submission and Justice Tremblay-Lamer’s
finding that the separation of the elderly couple could result in irreparable
harm and agree that “a most cautious approach” is merited in considering such
an eventuality (Ramprashad-Joseph v Canada (Minister of Citizenship and
Immigration), 2004 FC 1715, at para 3), the Officer had evidence that the
husband could join the Applicant in Russia and little evidence of the hardships
they would face together or the difficulties of resettling in Belarus. The
fact that an individual chooses not to leave Canada with his spouse is not a
ground to warrant deferral. Moreover, the Applicant’s counsel has advanced no
concrete evidence in support of her assertion that the husband’s H&C
application is “most likely” to be accepted and, as such, I cannot conclude
that the Officer ought to have found that a deferral should be granted because
the Applicant would “inevitably” be entitled to return to Canada as his spouse.
[45]
Third, the Applicant did not present evidence of
her ailing health or the lack of social services available in Russia. An
applicant has the burden to present such evidence (Jodlowska v Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 1413,
at para 8). A careful review of the letter describing the Applicant’s visit to
the Russian Embassy does not say that the Applicant would not be entitled to a
pension or government help but rather that the Head of the Consular Section
stated that “he is no expert in the old age security and [they] should go on
the internet and find the information” (Certified Tribunal Record, p. 24).
Neither can the Applicant fault the Officer for inferring that she could seek
assistance from family members in Belarus or Italy. A deferral request is not
to be considered a substitute for the other avenues of relief.
CONCLUSION
[46]
For all of the above reasons, I find that the
application for judicial review should be dismissed. The Officer did not
fetter his discretion and did not bind himself by any guidelines. Rather, it
is clear from the decision that the Officer considered the relevant issues
raised by the Applicant. This Court may have reached another conclusion, but
this is not the test to determine whether the impugned decision is
unreasonable. Of course, the Applicant is not prevented from bringing a second
request for deferral if she is again required to report for removal.
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