Docket: IMM-712-14
Citation:
2015 FC 560
Ottawa, Ontario, May 4, 2015
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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SHEIKH NAUSHEER
ALLY
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
Sheikh Nausheer Ally [the Applicant] has
brought an application for judicial review under s 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the IRPA] of a
decision by a removals officer [the Officer] dated January 31, 2014. The Officer refused to defer the Applicant’s
removal from Canada.
[2]
For the following reasons, the application for
judicial review is dismissed.
II.
Background
[3]
The Applicant is a citizen of Guyana. He first entered Canada in August, 1988 and was granted permanent residence. He subsequently
received two convictions for robbery and served a sentence of 16 months in the
early 1990s.
[4]
In October, 1994 a deportation order was made
against the Applicant on the ground of serious criminality. An appeal of the
deportation order and a subsequent application for judicial review to this
Court were both dismissed.
[5]
In December, 1994 the Applicant married his
spouse. The Applicant’s first daughter, who has Down syndrome, was born in
September, 1995. In February, 1997 the Applicant was removed to Guyana while his spouse was pregnant with their second child. The Applicant’s son was born
in July, 1997. The Applicant and his spouse were divorced in July, 2000,
ostensibly to enable the spouse to qualify for increased government benefits.
[6]
In September, 2008 the Applicant re-entered Canada illegally and resumed living with his former wife and their children. The couple had
a third child in June, 2013.
[7]
The same month, the Applicant was detained by
police and a deportation order was issued. In January, 2014 the Applicant
applied for permanent residence, sponsored by his spouse [the spousal
sponsorship application]. The Applicant requested consideration on humanitarian and
compassionate [H&C] grounds. He also allegedly applied for a pardon to overcome his criminal
inadmissibility.
[8]
On January 20, 2014 the Applicant received a
direction to report for removal. On January 28, 2014 he submitted a request to
defer removal pending the determination of his spousal sponsorship application
or, in the alternative, pending the birth of his fourth child (who was due in
September, 2014). He argued that it was in the best interests of his spouse and
children that his removal be deferred, and that he would be at risk if he was
returned to Guyana.
[9]
On January 31, 2014, the Applicant’s deferral request
was denied. The Applicant was granted a stay of removal on February 12, 2014
pending determination of this application for judicial review.
III.
The Officer’s Decision
[10]
The Officer found that neither the Applicant’s application
for a pardon nor his spousal sponsorship application was made in a timely way.
[11]
With respect to the application for a pardon,
the Officer concluded that there was insufficient evidence to support the
Applicant’s claim that in 2010 he retained an immigration consultant who
accepted payment but did nothing in return. The Officer noted that the Applicant
waited three years after he discovered that his application had not in fact been
submitted before he hired an organization called Pardons Canada to help advance
his application. The Officer estimated that the Parole Board of Canada would
not decide the application until November, 2014 at the earliest, and therefore no
decision on the pardon application was imminent.
[12]
With respect to the spousal sponsorship
application, the Officer concluded that the Applicant waited approximately five
years after illegally returning to Canada, and six months after he was notified
that he could apply for a Pre-Removal Risk Assessment (PRRA), before commencing
the process. The Officer again found that no decision on the spousal
sponsorship application was imminent, as the initial assessment alone would
take up to nine months and the file could then be referred to a local office of
Citizenship and Immigration Canada for further review. Furthermore, the Officer
noted that the Applicant was not eligible for spousal sponsorship due to his
criminal convictions, nor could he benefit from an administrative deferral
because he had filed his spousal application more than six months after he was
deemed “removal-ready”. The Officer found that a
deferral of removal pending the Applicant’s spousal sponsorship application was
unwarranted.
[13]
The Officer then considered whether a deferral
of the Applicant’s removal from Canada was justified based on a consideration
of the best interests of the Applicant’s spouse and children. The Officer
acknowledged that the removals process could be difficult for all concerned;
however, the Applicant’s spouse and children are Canadian citizens who have
access to a wide range of social and public services. They also have the support
of family members and close friends. The Officer concluded that there was
insufficient evidence to demonstrate that the Applicant’s spouse and children
would face exceptionally difficult circumstances that would justify a deferral
of his removal.
[14]
Finally, the Officer found that there was no new
or significant personalized risk to the Applicant to justify a deferral of his
removal. The Applicant did not allege that he had been subjected to any risk to
his personal safety, risk to his health, denial of access to services, or that
he suffered discrimination in his employment. The Officer noted that the Applicant
had not submitted an application for a PRRA, and that any risk referred to in
the deferral request was speculative and was not supported by the Applicant’s
experience when he previously resided in Guyana.
IV.
Issue
[15]
The central issue raised by the Applicant in
this application for judicial review is whether the Officer’s analysis of the
best interests of the children was reasonable.
V.
Analysis
[16]
The decision of a removals officer is subject to
review in this Court against the standard of reasonableness (Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 [Baron]
at para 25). The Court must consider whether the decision is justified,
transparent and intelligible, and whether it falls within a range of possible,
acceptable outcomes that are defensible in respect of the facts and law (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47).
[17]
The Respondent argues that the Applicant does
not come before the Court with “clean hands”,
due to his prior criminal convictions and his illegal re-entry into Canada following his deportation. In Baron, Justice Nadon said the following about
the application of the “clean hands” doctrine in
this context:
[65] Thus, if the conduct
of the person seeking a deferral of his or her removal either discredits him or creates a precedent which encourages
others to act in a similar way, it is entirely open to the enforcement officer
to take those facts into consideration in determining whether deferral ought to
be granted. Neither enforcement officers nor the courts, for that matter,
should encourage or reward persons who do not have “clean hands”.
[18]
In Baron, Justice Nadon also explained
the limits of a removal officer’s discretion to defer:
[…] my colleague Pelletier J.A., then a
member of the Federal Court Trial Division, had occasion in Wang v. Canada
(M.C.I.), [2001] 3 F.C. 682 (F.C.), in the context of a motion to stay the
execution of a removal order, to address the issue of an enforcement officer's
discretion to defer a removal. After a careful and thorough review of the
relevant statutory provisions and jurisprudence pertaining thereto, Mr. Justice
Pelletier circumscribed the boundaries of an enforcement officer's discretion
to defer. In Reasons which I find myself unable to improve, he made the
following points:
- There are a range of factors that
can validly influence the timing of removal on even the narrowest reading of
section 48, such as those factors related to making effective travel
arrangements and other factors affected by those arrangements, such as
children's school years and pending births or deaths.
- The Minister is bound by law to
execute a valid removal order and, consequently, any deferral policy should
reflect this imperative of the Act. In considering the duty to comply with
section 48, the availability of an alternate remedy, such as a right to return,
should be given great consideration because it is a remedy other than failing
to comply with a positive statutory obligation. In instances where applicants
are successful in their H&C applications, they can be made whole by
readmission.
- In order to respect the policy of
the Act which imposes a positive obligation on the Minister, while allowing for
some discretion with respect to the timing of a removal, deferral should be
reserved for those applications where failure to defer will expose the
applicant to the risk of death, extreme sanction or inhumane treatment. With
respect to H&C applications, absent special considerations, such
applications will not justify deferral unless based upon a threat to personal
safety.
- Cases
where the only harm suffered by the applicant will be family hardship can be
remedied by readmitting the person to the country following the successful
conclusion of the pending application.
[19]
This case bears some similarity to Ahmedov v Canada (Minister of Public Safety and Emergency Preparedness), 2013 FC 730, 435 FTR 253
[Ahmedov], where a stay of removal was granted pending the birth of the
applicant’s child. In that case, Justice Gagné held as follows:
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.
[20]
In this case the Applicant’s fourth child was
due in September 2014. Unfortunately, the pregnancy ended in miscarriage. Based
on Ahmedov and the cases cited therein, I am satisfied that this aspect
of the application for judicial review is moot and no useful purpose would be
served by considering its merits.
[21]
With respect to the remainder of the Applicant’s
arguments, in Munar v Canada (Minister of Citizenship and Immigration),
[2005] FCJ No 1448 (QL), [2006] 2 FCR 664 at paras 40-41 [Munar], Justice
de Montigny observed that removals officers lack jurisdiction to perform the
full substantive analysis of the best interests of the child that is required
in an application for permanent residence on H&C grounds. Rather, removals
officers should consider only the short-term best interests of the child. Examples
provided by Justice de Montigny include whether deferral would enable the child
to finish a term or school year, or would ensure that adequate care has been
arranged if the child will not accompany the parent facing removal.
[22]
In Canada (Minister of Citizenship and
Immigration) v Varga, 2006 FCA 394 at para 16, the Federal Court of Appeal stated:
Within the narrow scope of removal officers’
duties, their obligation, if any, to consider the interests of affected
children is at the low end of the spectrum, as contrasted with the full
assessment which must be made on a H&C application under subsection 25(1).
[23]
Similarly, in Fernandez v Canada (Minister of Citizenship and Immigration), 2012 FC 1131 at para 46), Justice O'Keefe wrote
that “enforcement officers are not positioned to
evaluate all the evidence that might be relevant in an H&C application”.
While they should treat the “immediate interests [of
affected children] fairly and with sensitivity”, they are not required
to review those interests comprehensively before enforcing a removal order.
[24]
I am satisfied that the Officer’s decision in
this case was reasonable and that he was alert, alive and sensitive to the
short-term best interests of the Applicant’s children. It is clear that the
Officer considered the information provided by medical professionals regarding
the Applicant’s daughter with Down syndrome. She is now 19. The Applicant’s son
is a teenager. The Officer noted the presence of support from family members,
friends, and social services available to all Canadians. The Applicant may
pursue his applications for a pardon and spousal sponsorship from outside the
country. If he is successful, then the separation from his spouse and children
will be temporary.
[25]
Given the highly circumscribed jurisdiction of a
removals officer to conduct an analysis of the best interests of the child when
considering a deferral application, I reject the Applicant’s assertion that the
Officer made his decision without regard to the evidence presented or that the
decision was otherwise unreasonable.
[26]
The Applicant’s lack of “clean
hands” also supports the Officer’s exercise of discretion in this case.
VI.
Conclusion
[27]
For the foregoing reasons, the application for
judicial review is dismissed.
[28]
Both parties made submissions regarding the
certification of a question for appeal regarding the scope of a removal
officer’s consideration of the best interests of the child. I agree with the
Respondent that the law in this area is settled (see Munar and the cases
cited therein), and accordingly no question for certification arises in this
case.
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