Docket: IMM-4759-15
Citation:
2016 FC 888
Ottawa, Ontario, August 2, 2016
PRESENT: The
Honourable Mr. Justice Gascon
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BETWEEN:
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DANIEL NEWMAN
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Applicant
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And
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THE MINISTER OF
PUBLIC SAFETY
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AND EMERGENCY
PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
The applicant, Mr. Daniel Newman, is a citizen
of the Czech Republic. Mr. Newman left his country years ago, prior to a
competency hearing requested by his parents who were trying to institutionalize
him against his will. He made unsuccessful refugee claims in four different
countries, before coming to Canada in January 2008. Mr. Newman is currently
residing in Toronto, where he spends his days volunteering for a number of
organizations.
[2]
Since his arrival, Mr. Newman has had a long
history of dealings with the Canadian immigration authorities, starting with a Convention
refugee claim initiated in 2008 and culminating in the issuance, in October
2015, of a decision by an Inland Enforcement Officer [the Officer] of the
Canada Border Services Agency [CBSA] refusing to defer the execution of a
removal order against him. The removal of Mr. Newman to the Czech Republic was
scheduled for October 26, 2015 but it was stayed by this Court until the
determination of Mr. Newman’s underlying application for leave and judicial
review.
[3]
This is Mr. Newman’s application for judicial
review of the Officer’s decision. Mr. Newman contends that, in his
decision, the Officer fettered his discretion by refusing to consider the
exceptionally compelling circumstances of his case, and that the decision is
thus unreasonable. He asks this Court to quash the Officer’s decision and to
order that a different CBSA enforcement officer reconsider his request for
deferral.
[4]
The sole issue to be determined is whether it
was reasonable for the Officer to refuse to defer the execution of the removal
order issued against Mr. Newman. For the reasons that follow, I conclude that Mr.
Newman’s application for judicial review must be dismissed. Having considered
the decision, the evidence before the Officer and the applicable law, I find no
basis for overturning the Officer’s findings. The decision thoroughly reviewed
the evidence and it falls within the range of possible, acceptable outcomes
based on the facts and the law. I come to this conclusion with some reluctance
considering the challenging situation of Mr. Newman and his various contributions
to the Canadian society. However, I am bound to apply the law as enacted by
Parliament and interpreted by the Courts. Given the reasonableness standard of
review and considering the applicable provisions of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA], I must defer to the
Officer’s decision.
II.
Background
A.
Factual context
[5]
Mr. Newman’s immigration history in Canada can
be summarized as follows. His Convention refugee claim was refused by the
Refugee Protection Division [RPD] of the Immigration
and Refugee Board of Canada in August 2010. At the time, the RPD determined
that Mr. Newman was neither a Convention refugee nor a person in need of
protection pursuant to sections 96 and 97 of IRPA. Mr.
Newman’s application for leave and judicial review of the negative RPD decision
was subsequently denied by this Court in March 2011.
[6]
Mr. Newman also submitted an application for
permanent residence on humanitarian and compassionate [H&C] grounds in
October 2010, as well as a Pre-Removal Risk Assessment [PRRA] application in
June 2011. His PRRA and H&C applications were both rejected in December
2012. Mr. Newman filed an application for leave and judicial review of the
negative H&C decision in February 2013. The judicial review was granted by
this Court and the negative H&C decision was sent back for redetermination
in August 2014 (Newman v Canada (Citizenship and Immigration), 2014 FC 803).
However, the redisposition of Mr. Newman’s H&C application was refused in
February 2015, and his subsequent application for leave and judicial review of
this negative H&C decision was refused at the leave stage in August 2015.
[7]
The removal of Mr. Newman was then scheduled for
October 26, 2015. In the meantime, in September 2015, Mr. Newman had submitted
a second H&C application, which remains pending. The Officer denied Mr.
Newman’s request to defer his removal but his deportation order was stayed on
the eve of his scheduled departure, as Mr. Justice Shore considered that
Mr. Newman’s H&C application raised an unusual set of circumstances
justifying the suspension of his removal (Newman v Canada (Minister of Public
Safety and Emergency Preparedness), IMM-4759-15 (FC) (25 October 2015) [the
Order]).
B.
The Officer’s decision
[8]
In his three-page decision, the Officer started
by outlining Mr. Newman’s immigration case file. The Officer then mentioned
that Mr. Newman is under an enforceable removal order. As is typically done by
CBSA enforcement officers in this type of decision, the Officer referred to subsection
48(2) of IRPA, which states that CBSA has an obligation to enforce removal
orders as soon as possible. The Officer indicated that CBSA customarily
proceeds with removal as soon as the order becomes enforceable and added that
an enforcement officer has little to no discretion to defer removal.
[9]
The Officer noted that Mr. Newman had requested
a deferral for two months pending a decision on his second H&C application,
claiming that, even though his application was submitted recently, a decision on
it is potentially imminent. The Officer observed that Mr. Newman also
submitted that a removal prior to the decision on his second H&C
application will negatively impact it. But the Officer stated that an H&C
application does not automatically give rise to a stay of removal, nor does it
pose an impediment to removal. He considered the evidence on the processing
time of H&C applications but found that affidavits from counsel to show
that a decision on Mr. Newman’s application is imminent were “anecdotal and insufficient.” The Officer was also
satisfied that Mr. Newman’s pending H&C application will be processed even
after his scheduled removal from Canada.
[10]
The Officer then stated that it is beyond his
authority to conduct an adjunct H&C application. However, he nonetheless “reviewed the specific considerations brought forward in the
deferral request,” namely the submissions supporting Mr. Newman’s degree
of establishment in Canada, his H&C application and counsel’s submissions
that a decision could be made earlier than in the established timeframes. The
Officer stressed that he is not mandated to conduct an assessment of the merits
of Mr. Newman’s pending H&C application nor can he review the strength of H&C
factors presented by counsel, such as the management of Mr. Newman’s diagnosed schizophrenia
and his contribution to the community and various charity organizations.
[11]
The Officer concluded that in the context of a
request to defer removal, “[his] limited discretion is
centered on evidence of serious detrimental harm resulting from the enforcement
of the removal order” and that insufficient evidence has been adduced
that Mr. Newman would face serious risk to his person if he is returned to the
Czech Republic.
C.
The standard of review
[12]
It is established case law that the standard of
review applicable to the decision of an enforcement officer to refuse a
deferral of removal is reasonableness (Baron v Canada (Public Safety
and Emergency Preparedness), 2009 FCA 81 [Baron] at para 25; Sorubarani
v Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC
382 [Sorubarani] at para 13; Ortiz v Canada (Minister of Public
Safety and Emergency Preparedness), 2012 FC 18 at para 39). The
parties do not dispute that.
[13]
When reviewing a decision
on the standard of reasonableness, the analysis is concerned with the existence
of justification, transparency and intelligibility within the decision-making
process, and the Officer’s findings should not be
disturbed as long as the decision “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 [Dunsmuir]
at para 47). In conducting a reasonableness review of factual findings, it is
not the role of the Court to reweigh the evidence or the relative importance
given by the decision-maker to any relevant factor (Kanthasamy v Canada
(Minister of Citizenship and Immigration), 2014 FCA 113 at para 99). Under
a reasonableness standard, as long as the process and the outcome fit
comfortably with the principles of justification, transparency and
intelligibility, and the decision is supported by acceptable evidence that can
be justified in fact and in law, a reviewing court should not substitute its
own view of a preferable outcome (Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland Nurses] at para 16).
[14]
The reasons are to be
read as a whole, in conjunction with the record (Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 53; Dunsmuir at para 47). To
determine the reasonableness of a decision, not only must the Court review the
reasons but it can also look at the underlying record (Newfoundland
Nurses at para 15). That said, a judicial review is
not a “line-by-line treasure hunt for error” (Communications, Energy and Paperworkers
Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34 at
para 54). The Court should approach the reasons with a view to “understanding, not to puzzling over every
possible inconsistency, ambiguity or infelicity of expression” (Canada
(Citizenship and Immigration v Ragupathy, 2006 FCA 151 at para 15).
III.
Analysis
[15]
Mr. Newman submits that the Officer’s decision
is unreasonable as the Officer fettered his discretion by refusing to consider
the “exceptionally compelling circumstances of this
case.” Mr. Newman complains about the fact that the Officer dealt with
the heart of his request, namely his H&C application, in one single paragraph,
and failed to properly consider the special circumstances that make up Mr.
Newman’s H&C application. Relying on various decisions such as Poyanipur
v Canada (Minister of Citizenship and Immigration), [1995] FCJ No
1785 [Poyanipur], Mr. Newman submits that the Officer’s discretion is
wide and includes the ability to consider “a broad
range of circumstances” (Poyanipur at para 9). By refusing to analyze
his compelling individual circumstances, argues Mr. Newman, the Officer unlawfully
fettered his discretion (Katwaru v Canada (Minister of Public Safety
and Emergency Preparedness), 2008 FC 1045 [Katwaru] at paras
30-35; Hardware v Canada (Minister of Citizenship and Immigration), 2005
FC 88 [Hardware] at para 14; Prasad v Canada (Minister of Citizenship
and Immigration), 2003 FCT 614 [Prasad] at para 32).
[16]
Mr. Newman adds that, as emphasized by Mr. Justice
Shore in the Order, his H&C application contains evidence which “could not be more clear and unequivocal” and that an
H&C officer has yet to consider the “exceptional or
special circumstances that encompass this case.”
[17]
I cannot agree with Mr. Newman’s arguments and with
his submission that the Officer’s decision falls outside the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law” (Dunsmuir at para 47). Instead,
I conclude that the Officer’s decision fits well within the boundaries of
reasonableness.
A.
The Officer’s decision is reasonable
[18]
Removal officers have a narrow discretion and
their authority to defer the execution of a removal order exists only in very
limited circumstances arising just prior to the removal date. This was
acknowledged by the Federal Court of Appeal in Baron, where Mr. Justice
Nadon stated that “it is trite law that an enforcement
officer’s discretion to defer removal is limited” (Baron at para
49). Deferral is to be reserved for those cases where “failure
to defer will expose the applicant to the risk of death, extreme sanction or
inhumane treatment” (Baron at para 51; Wang v Canada (Minister
of Citizenship and Immigration), [2001] 3 FC 682 [Wang] at
para 48). An enforcement officer may also exercise his or her discretion to
defer when issues relating to the timing of the execution of the deportation
order arise, such as factors relating to travel arrangements or fitness to
travel, illness, a child’s school year, or a pending birth or death (Baron
at para 51; Simoes v Canada (Minister of Citizenship and Immigration),
[2000] FCJ No 936 [Simoes] at para 12). I also emphasize that subsection
48(2) of IRPA expressly states that a removal order must be enforced “as soon as possible.” The Minister has no authority
to refuse to execute the order.
[19]
Furthermore, no matter how compelling or
sympathetic an applicant’s H&C application may be, CBSA enforcement officers
are under no duty to investigate H&C factors put forth by an applicant as
they are not meant to act as last minute H&C tribunals. The obligation to
conduct an H&C assessment properly rests with an officer deciding an
H&C application. It is well established that a removal officer is not
required to conduct a preliminary or mini H&C analysis and to assess the
merits of an H&C application (Shpati v Canada (Minister of Public Safety
& Emergency Preparedness), 2011 FCA 286 [Shpati] at para 45; Munar
v Canada (Minister of Citizenship & Immigration), 2005 FC 1180 at para
36; Prasad at para 32).
[20]
Mr. Newman essentially complains about the fact
that the Officer did not look deeply enough at the merits of his H&C
application. This is not a ground to find the Officer’s decision unreasonable.
On the contrary, the Officer’s decision not to engage in such an exercise was
reasonable in light of his limited discretion on requests for deferral of
removal. I would add that the Court’s view of the strength of Mr. Newman’s
H&C application, as articulated by Mr. Justice Shore in the Order, does not
render the Officer’s decision not to defer unreasonable. Instead, I find that
it was open for the Officer not be swayed by the H&C application forwarded
to him by Mr. Newman, including the letters of support, volunteer letters,
donation receipts, letters from social workers and letters from businesses.
This evidence is not related to the factors that the Officer had to consider in
deciding on the deferral of removal, namely issues relating to the logistics or
timing of the deportation, to the personal safety of Mr. Newman back in the
Czech Republic or to the harm likely to result from his impending removal.
[21]
It may well be that Mr. Newman’s second H&C
application could be found compelling on its merits by the relevant Canadian
immigration authorities or by this Court, but this is not what the Officer had
to decide at this stage. Nor is it what I have to determine in this application
for judicial review.
[22]
In addition, there is no dispute that the mere
existence of a pending PRRA or H&C application is not, in and of itself, a
bar to the execution of a valid removal order (Shpati at paras 34-42;
Baron at para 50; Prasad at para 32). The filing of such an
application, at a late stage in the removal process, is not per se an
impediment to removal (Baron at para 53).
[23]
All of the Officer’s findings are supported by
evidence on the record and constitute reasonable interpretations by the
Officer. None of the factors raised by Mr. Newman are sufficient to establish that the Officer’s decision does not fall within the scope of
reasonableness. While they are short, the Officer’s
reasons are not generic and they clearly considered Mr. Newman’s particular
request, circumstances and evidence. For instance, the Officer noted Mr.
Newman’s entire immigration history, including the history of his H&C
applications, the exact grounds for a deferral, counsel’s statement regarding
why he thought a decision of the newly filed H&C application was imminent
and Mr. Newman’s establishment, management of his schizophrenia and his
contributions to the community. I am satisfied that the reasons provide the justification,
transparency and intelligibility required of a reasonable decision, and the
resultant determination is in accordance with the limited discretion of the
Officer in the deferral of removal orders.
B.
There are no “special considerations” justifying
deferral
[24]
Mr. Newman’s concerns with the Officer’s
decision revolve around the Officer’s statement that, in a request to defer
removal, “[his] limited discretion is centered on
evidence of serious detrimental harm resulting from the enforcement of the
removal order” and that insufficient evidence has been adduced that Mr.
Newman would face serious risk to his person if he is returned to the Czech
Republic. The essence of Mr. Newman’s argument is that, through this statement,
the Officer unreasonably interpreted the law and misapplied the principles
stemming from the Federal Court of Appeal in Baron.
[25]
I disagree and, since Mr. Newman insisted on
this point in his representations before this Court, I will address this issue
in more detail.
[26]
The boundaries of an enforcement officer’s
discretion to defer a removal are narrow and they have been circumscribed in Baron
when Mr. Justice Nadon conveniently summarized the guiding principles
established by Mr. Justice Pelletier in Wang, in the context of a motion
to stay a removal order (Baron at para 51). In Wang, Mr. Justice
Pelletier had made the following points at paragraph 48 of his reasons:
- 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.
[Emphasis in original.]
[27]
In Shpati, Mr. Justice Evans, speaking
for the Federal Court of Appeal, referred to Baron and repeated the
statement that “[w]ith respect
to H&C applications, absent special considerations, such applications will
not justify deferral unless based upon a threat to personal safety” (Shpati at para 43).
[28]
What do the Baron decision and its
progeny establish regarding the circumstances in which, in the context of
H&C applications, an enforcement officer may be justified to exercise his
or her discretion to defer the execution of a removal order? In my view, those
circumstances can be regrouped in three categories. First, in all cases
(including where an H&C application is at stake), an enforcement officer
may consider logistical or practical factors influencing the timing of removal
(such as travel arrangements, illness or health issues, the end of a child’s
school year, imminent births and deaths, etc.). Arguably, the imminence of a
decision on an H&C application, if adequately supported by evidence, would
fit in that more technical or timing category (Sorubarani at paras
28-29). Second, H&C applications can justify a deferral when they are “based upon a threat to personal safety.” Third, even
where there is no threat to personal safety or no practical or timing concern,
H&C applications can still justify a deferral when “special
considerations” are present.
[29]
Mr. Newman argues that these “special considerations” can and should include the
strength or compelling nature of the underlying H&C application. I do not
share this reading of the Baron decision and I do not agree that, in the
context of an enforcement officer’s decision, the “special
considerations” have the expanded scope that Mr. Newman claims they
carry. It is true that, in referring to H&C applications, Baron (and
the Wang case it relies on) goes beyond the sole threats to personal
safety. However, the “special considerations”
referred to by Messrs. Justices Nadon and Pelletier do not exist in a
vacuum and must be understood in the specific context of the Baron and Wang
decisions, namely requests made to an
enforcement officer for a deferral pending the determination of an H&C
application.
[30]
Those special considerations must therefore be looked
at bearing in mind the limited discretion granted to enforcement officers on
requests for deferral of removal. Obviously, they must be other than simply the
basis for the H&C claim, or else all H&C applications would have “special
considerations.”
[31]
This Court has recognized that those special considerations which may warrant
deferral in the face of an H&C application can include situations where an
H&C application was brought on a timely basis but has not yet been
determined by the immigration authorities due to a backlog in the system (Laguto
v Canada (Citizenship and Immigration), 2013 FC 1111 at paras 31 and 34; Guan
v Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC
992 at para 41; Williams v Canada (Minister of Public Safety and Emergency
Preparedness), 2010 FC 274 at para 36). I pause to observe that this
situation could arguably be considered as belonging to the more general category
of practical and logistical issues related to the timing of removal
orders which, in all instances, may justify the exercise of an enforcement
officer’s discretion to defer removal (Shpati at para 44; Sorubarani
at para 25; Simeos at para 12).
[32]
The very failure to look at the reasons for a
late H&C application was also found to be an omission to properly address a relevant consideration and thus
one where “special considerations” arose (Gurshomov v Canada (Public
Safety and Emergency Preparedness), 2010 FC 1212 at paras 16-18).
[33]
In other instances, both prior to and after Baron,
decisions from this Court have recognized that particular circumstances arising
in the context of H&C applications can amount to a “special
consideration” reasonably supporting a deferral of removal. For example,
this Court has referred to “exigent personal
circumstances” as a ground to justify a deferral of removal, singling
out situations involving children and the impact of the removal on their health
or medical condition (Kampemana v Canada (Public Safety and Emergency
Preparedness), 2015 FC 1060 at para 34; Shase v Canada (Public Safety
and Emergency Preparedness), 2011 FC 1257 at paras 15-19; Ramada v
Canada (Solicitor General), 2005 FC 1112 [Ramada] at para 3). The
Court also pointed out to “compelling individual
circumstances” such as personal safety or health issues (Hardware
at para 14, Prasad at para 32; Ramada at para 3). The existence
of family violence and an abusive relationship was also found to be a factor
potentially covered by the “special considerations”
(Blackwood v Canada (Public Safety and Emergency Preparedness), 2013 FC 567
at para 37).
[34]
The list is not exhaustive and, while they do
and can take many incarnations, those special considerations or compelling
personal circumstances justifying a deferral of removal in the context of
H&C applications all share one common theme. Leaving aside cases raising pure
timing issues or the untimely treatment of pending H&C applications by
Canadian immigration authorities, those special considerations amount to
personal exigencies which, in one way or another, have some relation to the
adverse effects or detrimental harm expected to be caused by the impending
removal, and which an applicant is required to demonstrate in order to obtain a
deferral from an enforcement officer. Stated otherwise, while the special
considerations established by Baron can go beyond the strict threat to
personal safety, they cannot be divorced from the detrimental harm expected to result
from or closely linked to the impending removal, and they must be traced back
to an element of harm attributable to or associated with the imminent removal being
challenged.
[35]
When considered in the context of requests for
deferral and through the prism of section 48 of IRPA, as they properly should, those
“special considerations” therefore cannot simply
encompass any or all factors contained or provided in support of an H&C
application, or even less so the H&C application itself. It is well
accepted that enforcement officers are not positioned to evaluate all the
evidence that might be relevant in an H&C application (Ramada at para 7) or its merits, and that
a pending H&C application does
not in itself constitute one of the special considerations which could allow
the enforcement officer to defer a removal (Shpati at para 45;
Ponce Moreno v Canada (Public Safety and Emergency Preparedness), 2010 FC
494 at para 19). An enforcement officer has neither the general duty, nor the
discretion to consider various H&C factors in determining whether to defer
removal (Mkhonta v Canada (Minister of Public Safety and Emergency
Preparedness), 2015 FC 991 at para 26).
[36]
Against the backdrop of an enforcement officer’s
decision on a request for deferral and the limited discretion bestowed to the
officer, I thus conclude that the special considerations arising in an H&C
context are limited to those elements evoking some form of harm linked to the
removal from Canada. In other words, a condition or a situation alleged in an
H&C application would not be sufficient to constitute one of the “special considerations” mentioned in Baron if
it does not translate into some form of detrimental harm caused by the impending
removal.
[37]
The cases cited by Mr. Newman (Prasad at
para 32; Hardware at para 14; Katwaru at para 31) do not broaden the
Officer’s discretion in that respect. Not only were these decisions all issued
prior to Baron, but they in fact simply stand for the proposition that
an enforcement officer must have regard for “compelling
individual circumstances, such as personal safety or health issues.” This
is consistent with this notion that circumstances must relate to some form of impending
harm, and with what the Officer actually said regarding the scope of his
discretion in reviewing Mr. Newman’s request (namely that his “limited discretion was centered on evidence of serious
detrimental harm resulting from the enforcement of the removal order as
scheduled”).
[38]
Here, the Officer found that there were no
special circumstances amounting to serious detrimental harm linked to Mr.
Newman’s removal. In light of section 48 of IRPA, the case law and the limited
discretion conferred to removal officers, it was clearly not unreasonable for
the Officer to so conclude. The Officer has not overlooked any important factor
nor has he seriously misapprehended the circumstances of Mr. Newman. If a
decision-maker’s decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and the law, the Court is not
allowed to intervene even if its assessment of the evidence might have led it
to a different outcome. Under the reasonableness standard, as long as the
process and the outcome fit comfortably with the principles of justification,
transparency and intelligibility, a reviewing court should not substitute its
own view of a preferable outcome. This is clearly the case here.
IV.
Conclusion
[39]
For the reasons detailed above, the Officer’s decision
to refuse the deferral of Mr. Newman’s removal represented a reasonable
outcome based on the law and the evidence before the Officer. Therefore, I must
dismiss Mr. Newman’s application for judicial review. Neither
party has proposed a question of general importance for me to certify, and I
agree there is none.
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