Dockets: IMM-6238-13
IMM-6239-13
Citation:
2015 FC 490
Ottawa, Ontario, April 17, 2015
PRESENT: The
Honourable Mr. Justice LeBlanc
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Docket:
IMM-6238-13
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BETWEEN:
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ROSA DELIA GONZALEZ TOVAR
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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Docket:
IMM-6239-13
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AND BETWEEN:
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ROSA DELIA GONZALEZ TOVAR
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
The Applicant (Ms. Tovar) is from Mexico. She
entered Canada in May 2007 on a three-month temporary resident permit. Shortly
after her arrival, she made a refugee protection claim under sections 96 and 97
of the Immigration and Refugee Protection Act, SC 2001, c 27 (the Act) on
the basis that she feared her ex-boyfriend, an alleged drug addict and
alcoholic, upon return to Mexico. Her claim was dismissed by the Refugee
Protection Division of the Immigration and Refugee Board of Canada (the RPD) on
February 10, 2010, and leave to review that decision was denied by the Court on
June 23, 2010.
[2]
On August 28, 2010, Ms. Tovar married a Mr. Navarro
who had been granted Convention refugee status a few months prior to the
marriage. In December 2010, Mr. Navarro applied for permanent residence for
himself as a member of the Protected Persons Class and for Ms. Tovar as his
dependent.
[3]
In April 2011, Ms. Tovar received a Pre-Removal
Risk Assessment (PRRA) application kit that she filled and returned to
Citizenship and Immigration Canada. The evidence she filed in support of her
PRRA application consisted of a copy of her marriage certificate and of a
letter addressed to Mr. Navarro, dated April 7, 2011, regarding the processing
of his application for permanent residence.
[4]
As Ms. Tovar had already applied for permanent
residence as a dependant, the processing of her PRRA application was put on
hold because there would have been no need to process it if she had landed as a
dependant under Mr. Navarro’s application.
[5]
By letter dated May 1, 2013, Mr. Navarro was
informed that his application for permanent residence and that of Ms. Tovar as
his dependant had been rejected. The next day, Ms. Tovar’s PRRA application
was referred to a PRRA officer for determination and on June 26, 2013, it was also
rejected.
[6]
The Canada Border Services Agency (CBSA) was
then informed of the negative PRRA decision and requested Ms. Tovar to attend a
pre-removal interview at a CBSA office in Montreal on September 17, 2013, at
which time she was informed of the negative PRRA decision and that she was
scheduled for removal on October 15, 2013.
[7]
At the time of the interview, Ms. Tovar had
long ceased living with Mr. Navarro and had a new common-law partner, Mr. Peralta,
who had two children who lived with them and whose mother had just passed
away. On September 14, 2013, that is three days prior to her interview with a
CBSA officer, Ms. Tovar filed an application for permanent residence as a member
of the Spouse or Common-law Partner Class. A copy of her application for
permanent residence was handed to the CBSA officer in support of what Ms. Tovar
claims to be an oral request for deferral of the removal order. CBSA denies
that such a request was ever made during the interview or at any other time.
[8]
CBSA’s removal order was stayed by the Court on October
8, 2013.
[9]
The Applicant challenges both the negative PRRA
decision (Docket IMM-6238-13) and CBSA’s removal order (Docket IMM-6239-13).
She claims that by assessing her PRRA application two years after its filing without
providing her with an opportunity to update the application, the PRRA officer
breached the principles of fairness and natural justice and deprived her, as a
result, of a timely and current risks assessment.
[10]
With respect to CBSA’s removal order, Mr. Tovar
contends that the removal officer breached the principles of fairness and
natural justice by failing to accept her documentary evidence in support of her
alleged oral request for deferral. She also claims that the officer erred in
law in failing to consider, even in a limited manner, the best interests of Mr.
Peralta’s children who had just lost their mother.
[11]
For the reasons that follow, both challenges are
dismissed.
[12]
As the two cases were heard together, the
present Judgment and Reasons are filed in both Dockets IMM-6238-13 and
IMM-6239-13.
II.
Issues and Standard of Review
[13]
Both the challenge to the PRRA negative decision
and to the removal order raise the issue of whether there has been a breach of
procedural fairness. As is well settled, such issues attract the standard of
review of correctness, which means that no deference is owed to the
decision-maker (Canada (Citizenship and Immigration) v Khosa, 2009 SCC
12, at para 43, [2009] 1 S.C.R. 339; Dunsmuir v New Brunswick, 2008 SCC 9,
at para 50, [2008] 1 S.C.R. 190; Chekroun v Canada (Minister of Citizenship and
Immigration), 2013 FC 737, at para 37, 436 FTR 1; Gonzalez v Canada
(Minister of Public Safety and Emergency Preparedness), 2013 FC 153, at
para 46, [2013] FCJ No 150 (QL)).
[14]
The challenge to the removal order also raises
the issue of whether the removal officer properly exercised her discretion. Decisions
made by removal officers, who only have limited discretion to defer removal
orders, are to be reviewed on a standard of reasonableness (Gonzalez,
above, at para 47; Ortiz v Canada (Minister of Public Safety and Emergency
Preparedness), 2012 FC 18, at para 39, [2012] FCJ No 11 (QL); Cortes v
Canada (Minister of Citizenship and Immigration), 2007 FC 78, at paras 5-6,
308 FTR 69). This means that deference is owed to the officer’s exercise of
discretion and the Court shall only interfere if the officer’s findings lack
justification, transparency and intelligibility or fall outside the range of
possible, acceptable outcomes, defensible in fact and in law (Dunsmuir, above,
at para 47).
III.
Analysis
A.
The Negative PRRA Decision
[15]
The PRRA process is provided for under sections
112 and 113 of the Act. These provisions empower the Minister of Citizenship
and Immigration – or his delegate – to determine whether a person who faces a
removal order is in need of protection. A PRRA analysis is conducted on the
grounds set out in sections 96 and 97 of the Act. The effect of a positive
PRRA determination is to stay the removal order.
[16]
Where, as is the case here, the PPRA application
comes from a failed refugee claimant, the law is clear that the PPRA process is
not to become another refugee determination process. This means that the PPRA
claimant who has been rejected as a refugee “bears the
onus of demonstrating that country conditions or personal circumstances have
changed since the RPD decision such that the claimant, who was held not to be
at risk by the RPD, is now at risk” and that if he or she fails to meet
that burden, “the PPRA application will (or should)
fail” (Cupid v Canada (Minister of Citizenship and Immigration)
2007 FC 176, at para 4, [2007] FCJ No 244 (QL); see also Ponniah v Canada
(Minister of Citizenship and Immigration), 2013 FC 386, at para 27, 431 FTR
71; Kaybaki v Canada (Minister of Citizenship and Immigration), 2004 FC
32 at para 11, [2004] FCJ No 27 (QL); Nam v Canada (Minister of Citizenship
and Immigration), 2011 FC 1298 at para 22, [2011] FCJ No 1578 (QL)).
[17]
Therefore, a PPRA officer can only interfere
with the RPD’s findings, and, as a result, re-litigate the negative RPD
decision, if there is new evidence within the meaning of section 113(a) of the
Act before him or her. Otherwise, it is not open for a PPRA officer to depart
from the findings of the RPD and to embark on a section 96 or 97 analysis (Raza
v Canada (Citizenship and Immigration), 2007 FCA 385, at paras 11-13, 370
NR 344).
[18]
Here, it is clear that Ms. Tovar’s PRRA
application, as it stood when it was assessed in June 2013, was bound to fail
as the sections of the PRRA application form dealing with any new risks were
left blank and the only documents listed in support of her application were the
certificate of her marriage to Mr. Navarro along with a letter from
Citizenship and Immigration Canada regarding her permanent residence
application. In other words, Ms. Tovar advanced no risk at all and simply
informed the PRRA officer that she was being processed for landing as a
dependent of a Protected Person.
[19]
Ms. Tovar contends that she was prejudiced by
the two-year delay between the filing and the assessment of her PRRA
application. She claims that in such context, the PRRA officer had the duty to
provide her with an opportunity to update her PRRA application so that she
could benefit from a timely and current PRRA assessment as required by the Act.
Ms. Tovar submits that had that opportunity been provided to her, she would
have informed the PRRA officer about the death of Mr. Peralta’s children’s
biological mother and of the possibility of having to return to Mexico with the
two children, resulting in an increased risk of persecution in Mexico at the
hands of her ex-boyfriend.
[20]
There are a number of problems with the
Applicant’s proposition.
[21]
First, as a matter of principle, there is no duty on a
PRRA officer to seek up-dated submissions. As indicated previously, the onus
is on a PRRA applicant to ensure that all relevant evidence is before the PRRA
officer. As a result, a PRRA officer is only obliged to consider evidence that
is before him or her and is not required to solicit the applicant for better or
additional evidence (Ormankaya v Canada (Minister of Citizenship and
immigration), 2010 FC 1089, at paras 31-32, [2010] FCJ No 1362 (QL); Selliah
v Canada (Minister of Citizenship and Immigration), 2004 FC 872, at para
22, 256 FTR 53).
[22]
Thus, it was up to Ms. Tovar to provide any
additional information she saw fit in support of her PRRA application and it
was open to her to do so at any point up to and until the date of the PRRA
officer’s decision (Arumugam v Canada (Minister of Citizenship and Immigration),
2001 FCT 985, at para 17, 211 FTR 65; Souici v Canada (Minister of
Citizenship and Immigration), 2007 FC 66, at paras 50-51, 308 FTR 111). She
failed to do so and must bear the consequences of her inaction.
[23]
Second, it is unfair, in my view, to impute on
the PRAA officer, as does Ms. Tovar, the two-year delay in processing the PRRA
application. It is true that the Ms. Tovar’s PRAA application was put on hold
pending the outcome of Mr. Navarro’s application for permanent residence.
However, there is no evidence on record that Ms. Tovar informed the PRRA
officer that Mr. Navarro and her had ceased to live as husband and wife as
early as April 2011 or that she was living with another man as of May 2012 and
that, as a result, she was no longer a dependent of Mr. Navarro for the
purposes of the then pending application for permanent residence. Had the PRRA
officer been so informed, Ms. Tovar’s PRRA application would in all likelihood have
been processed much sooner. Again, Ms. Tovar must bear in large part the
consequences of her inaction.
[24]
Third, the alleged new risk, which Ms. Tovar
would have put before the PRRA officer had the opportunity to do so been
presented to her, is highly problematic for a number of reasons. As the
Respondent points out, the RPD concluded that Ms. Tovar could safely move to
other regions of Mexico where her ex-boyfriend would not be able or have the
means to locate her. It is also rather highly implausible that Mr. Peralta
would allow Ms. Tovar to take his daughters to Mexico if this was to increase
the risks of persecution not only for Ms. Tovar but for his daughters too.
Finally, and more importantly, Mr. Peralta signed an affidavit in support of Ms.
Tovar’s challenge to the removal order stating that if Ms. Tovar was to be
deported, his two daughters would be staying with him in Canada. Ms. Tovar cannot
have it both ways: use these children as a risk increasing factor if she were
to be removed to Mexico and use their presence here in Canada to resist the
removal order on the ground that it is in their best interest that she remains
in Canada.
[25]
Even assuming, therefore, that the opportunity
to submit this alleged new risk to the PRRA officer had presented itself to Ms.
Tovar, this, in my view, could not possibly have changed the outcome of the
PRRA decision. When considered in light of all the circumstances of this case,
this new risk simply has no basis.
[26]
Ms. Tovar complains that she was kept in the
dark between April 2011 and September 2103 about her immigration status, depriving
her of any opportunity to inform the PRRA officer of the alleged new risk. She
claims to have been the subject of “un‑transparent
coordination efforts” between the PRRA officer and CBSA as a result of getting
both the negative PRRA decision and the removal order at the removal interview
on September 17, 2013.
[27]
These arguments, in the circumstances of this
case, have no merit. First, according to the evidence on record, Ms. Tovar
would not have been notified of the negative permanent residence decision
rendered against Mr. Navarro as only the principle applicant – and not the
dependents – are notified of such decisions. As indicated above, Ms. Tovar is
largely responsible for this state of affairs as she failed to disclose she was
no longer in a relationship with Mr. Navarro and failed to submit a formal
change of address when she left Mr. Navarro’s place of residence at the time
she filed her PRRA application.
[28]
Second, the so-called “un-transparent
coordination efforts” to provide the negative PRRA decision and the
removal order at the same time, is standard procedure. According to the
Enforcement Removal Manual, whether a PRRA decision is positive or negative,
the PRRA applicant is asked to attend an interview at a CBSA office where he or
she is informed of the decision. When the decision is positive, the applicant
is also counselled to apply for landing within 180 days. When the decision is
negative, the applicant is also informed of the removal date and of the
benefits of a voluntary removal. In any event, in order to be relevant, any
breach of procedural fairness regarding the negative PRRA decision would have
to have occurred on or before the date that decision was rendered. As I
indicated above, no such breach was established by Ms. Tovar as nothing
prevented her from submitting further evidence and submissions in support of
her PRRA application, let alone inquiring about the status of that application
or informing the authorities concerned that she was no longer a dependent of Mr.
Navarro.
[29]
Finally the cases of Hassan v Canada (Solicitor
General), 2004 FC 564, [2004] FCJ No 707 (QL) and Varga v Canada
(Minister of Citizenship and Immigration), 2006 FCA 394, [2007] 4 FCR 3 are
of no assistance to Ms. Tovar. Varga confirmed that the children’s interest
can only be taken into account, in a deferral request, in terms of short term
impact. It has no bearing on this case to the extent the validity of the
negative PRRA decision is concerned. As for Hassan, unlike the present
case, it dealt with a risk arising in the time period between the date of the
negative PRRA decision and the date the decision was delivered to the applicant
by the removal officer in the context of a stay of removal, something which
would normally be addressed by the removal officer, not the PRRA officer.
[30]
For all these reasons, I find that there was no breach
of procedural fairness in the dismissal of Ms. Tovar’s PRRA application and
that therefore, there is no basis to interfere with the PRRA officer’s
decision.
B.
The Removal Order
[31]
According to subsection 48(2) of the Act,
removal orders must be enforced “as soon as possible”.
As a result, removal officers have limited discretion to defer removal orders
and when they opt to exercise that discretion, they must do so while continuing
to enforce such orders as soon as possible, that is by addressing temporary
practical impediment to removal (Canada (Minister of Public Safety and
Emergency Preparedness) v Shpati, 2011 FCA 286, at para 45, [2012] 2 FCR
133; Griffiths v Canada (Solicitor General), 2006 FC 127, at para19,
[2006] FCJ No 182 (QL); Mondelus v Canada (Minister of Public Safety and
Emergency Preparedness), 2011 FC 1138, at para 46, [2011] FCJ No 1392 (QL);
Uthayakumar v Canada (Minister of Public Safety and Emergency Preparedness),
2007 FC 998, at para 7, [2007] FCJ No 1318 (QL)).
[32]
Ms. Tovar submits that she was not told what the
CBSA interview of September 17, 2013 with a CBSA officer was for. When the
removal officer informed her of the negative PRRA decision and of the removal
date, she claims she requested a deferral, handing in a copy of her new
permanent residency application as a member of the Spouse or Common-law Partner
Class.
[33]
The removal officer would have browsed quickly
through the new permanent residence application and returned it to Ms. Tovar. Ms.
Tovar claims that in so doing, the removal officer did not consider her special
circumstances and the best interest of Mr. Peralta’s two children, thereby
fettering her discretion under section 48 of the Act. She adds that the death
of the biological mother of the two girls just two months before the interview
was a special circumstance that should have been considered. The documentation
handed to the removal officer during the interview also included the death
certificate of the biological mother of the two children, the lease agreement
establishing that the blended family lives under the same roof and pictures to
establish the truthfulness of the relationship between the girls and Ms. Tovar.
[34]
Deferral was allegedly sought until a decision
is made on Ms. Tovar’s new permanent residence application.
[35]
The Respondent, Minister of Public Safety and
Emergency Preparedness, contends that Ms. Tovar never asked for deferral of the
removal order and that therefore, there is no decision for this Court to
review. It claims that when the removal order was stayed, the Court did not
have the benefit of the affidavit from the removal officer who was the only
individual who could refute Ms. Tovar’s assertions but who was not available at
the time to swear an affidavit.
[36]
The Court is put in the difficult position of
having to choose between two inconsistent versions of what took place on
September 17, 2013. In the affidavit she swore on November 21, 2013, the
removal officer stated that at no point during the interview, did Ms. Tovar ask
that her removal be deferred, that the contents of the spousal permanent
residence application be reviewed or that these documents be kept. She also
stated that at no point during the interview did Ms. Tovar indicate that she
considered deferral due to the best interest of the children although Ms. Tovar
did indicate that her common-law partner had two children who lived with them.
[37]
The removal officer further stated that at no
point during the interview did Ms. Tovar indicate that there were any reasons
why she now fears returning to Mexico.
[38]
The removal officer filed her interview notes as
an exhibit to her affidavit and indicated that if any such request would have
been made to her by the Applicant during the interview or any fear of returning
to Mexico expressed by her, it would have been recorded in the notes.
[39]
The two conflicting affidavits were made a month
apart and they are both contemporaneous to the removal interview. In Charles
v Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC
1096, [2012] FCJ No 1236 (QL), Justice David G. Near, as he was then, faced a similar
set of conflicting evidence and he preferred the affidavit of the removal
officer. One of the key factors in his decision was that a request for
deferral of a removal order is a significant item to which a removal officer who
is familiar with the removal process would be attuned and which would therefore
normally be recorded in the notes entered into the system (Charles, above,
at paras 21-22).
[40]
Here, the removal officer, according to her
affidavit, reviewed the permanent residence application materials with a view
to determining whether Ms. Tovar was entitled to a 60 day administrative
deferral under the Public Policy of section 25(1) of the Act regarding in-land
permanent residence applications based on compassionate and humanitarian
considerations. She determined that Ms. Tovar was not entitled to this
administrative deferral, explained why and returned the materials to Ms. Tovar.
[41]
The removal officer’s affidavit does not explain
why Ms. Tovar handed the permanent residence application materials to the
officer. In her notes, the removal officer indicated that Ms. Tovar did not
speak or ask any questions during the interview (“cliente ne parle pas et ne pose aucune
question”).
[42]
In such context, and not having the benefit of
cross-examinations on affidavit, I am inclined to prefer the removal officer’s
version of events. I am further inclined to prefer her version of events as Ms.
Tovar has not been fully forthcoming by not disclosing the fact that she was no
longer living with Mr. Navarro while his application for permanent residence,
and hers as a dependent of Mr. Navarro, were still being processed. The
burden was on Mr. Tovar to establish that she had made an oral request for
deferral, at least one in the nature she now claims to have made. That burden
was not met, with the result that, as the Minister of Public Safety and
Emergency Preparedness contends, there is no decision to review in IMM-6239-13.
[43]
In any event, there may be very little practical
effects to Mr. Tovar’s failure to have the removal order set aside as a new
date for her removal will have to be set, providing therefore Ms. Tovar with
the possibility to present a fresh request for deferral. This lack of
practical effect has prompted some Members of the Court to question the
appropriateness of exercising the Court’s discretion in favour of reviewing removal
orders when removal has been stayed (Palka v Canada (Minister of Public
Safety and Emergency Preparedness), 2008 FC 342, 71 Imm LR (4th) 239; Higgins
v Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC
377, 64 Imm LR (3d0 98; Vu v Canada (Minister of Citizenship and
Immigration), 2007 FC 1109, [2007] FCJ No 1431 (QL); Surujdeo v Canada
(Minister of Public Safety and Emergency Preparedness), 2008 FC 76, [2008]
FCJ No 1431 (QL); Madani v Canada (Minister of Public Safety and Emergency
Preparedness), 2007 FC 1168, 66 Imm LR (3d0 156; Maruthalingam v Canada
(Minister of Public Safety and Emergency Preparedness), 2007 FC 823, 63 Imm
LR (3d) 242; Solmaz v Canada (Minister of Public Safety and Emergency
Preparedness), 2007 FC 607, [2007] FCJ No 819 (QL); Kovacs v Canada
(Minister of Public Safety & Emergency Preparedness), 2007 FC 1247, 68
Imm LR (3d) 218; Amsterdam v Canada (Minister of Citizenship and
Immigration), 2008 FC 244, [2008] FCJ No 303 (QL)).
[44]
Be that as it may, I find that Ms. Tovar has not
established having made an oral request for deferral. Therefore, her judicial
review application against the removal order is dismissed.
C.
Proposed Question for Certification
[45]
Ms. Tovar proposes the following question for
certification:
Is a PRRA
officer conducting an assessment pursuant to s.113 (c) of the IRPR acting
within its mandate when deciding to hold a risk assessment in order to await
the result of a permanent resident application?
a. Does such PRRA officer owe a duty in fairness to:
i. to inform the foreign national that the risk
assessment is being held to await the result of the permanent resident
application? Or
ii. to inform the foreign national of the officer's
decision to re-activate the risk assessment?
b. Does a failure by a PRRA officer to inform the
foreign national that the risk assessment is being held to await the result of
the permanent resident application or to inform the foreign national of the
officer's decision to re-activate the risk assessment, constitute a breach of
the principles of fairness.
[46]
The test for certification consists in finding
whether there is a serious question of general importance and of broad
significance which would be dispositive of the appeal and which transcends the
interests of the parties to the litigation (Zazai v Canada (Minister of
Citizenship and Immigration) 2004 FCA 89 at para 11, 318 NR 365; Canada
(Minister of Citizenship and Immigration) v Liyanagamage (1994), 176 NR 4,
at para 4, [1994] FCJ No. 1637 (QL)).
[47]
Ms. Tovar contends that as the decision to hold
the determination of her PRRA application was not based on the risk
determination itself but on the result of the outcome of an independent
permanent residence application, it is important to know whether the PRRA
officer erred in law.
[48]
In IMM-6238-13, the Minister of Citizenship and
Immigration opposes Ms. Tovar’s request, claiming, inter alia, that the
questions proposed by Ms. Tovar would not be dispositive of the appeal. I
agree. As the Respondent points out, even if the Court were to find that the
PRRA officer was under some kind of duty to inform Ms. Tovar that her PRRA
application was being held in abeyance, the outcome of the said application
would have been the same as Ms. Tovar’s claim relating to the emergence of a
new risk has no basis whatsoever in the particular circumstances of this case.
[49]
The present matter is very much fact specific
and does not lend itself, therefore, to certification.
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