Date: 20111018
Docket: A-451-10
Citation: 2011 FCA 286
CORAM: SEXTON
J.A.
EVANS
J.A.
STRATAS
J.A.
BETWEEN:
MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Appellant
and
ZEF SHPATI
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
A. INTRODUCTION
[1]
Is the
Federal Court or an immigration enforcement officer the principal
decision-maker when foreign nationals request the deferral of their removal
from Canada pending the disposition of an
application for judicial review of a negative Pre-Risk Removal Assessment
(PRRA)?
[2]
That is
the question underlying the present appeal by the Minister of Public Safety and
Emergency Preparedness (Minister) of a decision of the Federal Court, reported
as Shpati v. Canada (Minister of Public Safety and Emergency Preparedness),
2010 FC 1046. In that decision, Justice Harrington (Judge) granted an
application for judicial review by Zef Shpati and declared invalid an
enforcement officer’s refusal to defer his removal from Canada.
[3]
The
Minister says that, in the absence of a statutory stay, the Federal Court is
normally the proper forum for individuals seeking to stay their removal, by
showing that they meet the tripartite test for granting an interlocutory
injunction: the existence of a serious question to be decided in the pending
judicial review proceeding, irreparable harm to the applicant if a stay is not
granted, and the balance of convenience.
[4]
The Minister
notes that section 48 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA) obliges a person subject to an enforceable removal
order to leave Canada immediately and requires that the order be enforced as
soon as is reasonably practicable. He argues that these provisions indicate
that the scope of an enforcement officer’s discretion to defer removal is
narrow.
|
48. (1) A removal order is enforceable
if it has come into force and is not stayed;
(2) If a removal order is enforceable, the
foreign national against whom it was made must leave Canada
immediately and it must be enforced as soon as is reasonably practicable.
|
48. (1) La mesure de renvoi est
exécutoire depuis sa prise d’effet dès lors qu’elle ne fait pas l’objet d’un
sursis.
(2) L’étranger visé par la
mesure de renvoi exécutoire doit immédiatement quitter le territoire du
Canada, la mesure devant être appliquée dès que les circonstances le
permettent.
|
[5]
On the other hand, Mr Shpati argues that enforcement
officers should normally defer removal pending the disposition of an application
for judicial review of a negative PRRA if satisfied that the application was
timely and made in good faith. Otherwise, he says, an individual’s statutory
right to seek judicial review of a negative PRRA determination would be
rendered nugatory. This is because, once an individual is removed from Canada, the judicial review of the
PRRA becomes moot, and the PRRA itself cannot be reassessed. Moreover, Mr
Shpati submits that it would be inefficient to bifurcate deferral decisions
between the Federal Court and immigration officials by limiting the scope of
enforcement officers’ discretion under section 48 as suggested by the Minister.
[6]
In my
opinion, the Minister’s view is more consistent than that of Mr Shpati with the
text of section 48, the scheme of the IRPA, and the jurisprudence. For the
reasons that follow, I would allow the Minister’s appeal and dismiss Mr Shpati’s
application for judicial review of the enforcement officer’s refusal to defer
his removal.
B. FACTUAL BACKGROUND
[7]
Zef Shpati
is a national of Albania, where he spent twenty-five
years in a labour camp. After escaping from Albania in 1991 he was identified by the United
Nations High Commissioner for Refugees as a person of concern and was issued
travel documents to the United
States, where he
was re-settled, and he and his family became permanent residents.
[8]
In March
or April 2005, Mr Shpati was deported to Albania from the United States for immigration fraud,
namely, attempting to smuggle his sister-in-law into the country on his wife’s
Green Card. In May, he left Europe for Canada and applied for Convention refugee status
on his arrival. Finding Mr Shpati not to be credible, a panel of the Refugee
Protection Division of the Immigration and Refugee Board (Board) dismissed his
claim on March 16, 2006. A year later, the Federal Court (2007 FC 237) upheld
the Board’s decision.
[9]
In September
2006, Mr Shpati applied for permanent residence from within Canada on humanitarian and
compassionate grounds (H&C). This application was refused on January 28,
2009.
[10]
In June
2009, he also applied for a PRRA, which automatically stayed his removal: Immigration
and Refugee Protection Regulations, SOR/2001-227, section 232 (Regulations).
In a decision dated October 1, 2009, the PRRA officer rejected the
application. He concluded that Mr Shpati was unlikely to be at risk of torture,
persecution, death, or cruel and unusual treatment or punishment if returned to
Albania. As a result, the statutory
stay of removal lapsed and Mr Shpati could be removed from Canada: Regulations, paragraph 232(c).
[11]
On December
21, 2009, Mr Shpati applied to the Federal Court for leave and for judicial
review of the PRRA and the H&C decision. On February 4, 2010, he requested
an enforcement officer to defer his removal (then apparently scheduled for
February 26, 2010) pending the Court’s disposition of his judicial review
applications. The request was refused on March 8, 2010, and Mr Shpati was
advised that he was expected to report for removal on March 22, 2010. He
applied for leave and for judicial review of the denial of the deferral as
well. This is the decision that has led to the present appeal and is described
more fully below.
[12]
On March
17, 2010, the Judge heard motions brought by Mr Shpati for a stay of his
removal pending the Court’s determination of his applications for leave and for
judicial review of the PRRA, the H&C decision, and the enforcement
officer’s refusal to defer his removal. In a decision, dated April 7, 2010
(2010 FC 367), the Judge granted the motion to stay the refusal to defer on the
basis of the tripartite test. He dismissed the other two motions as moot.
C. DECISION OF THE ENFORCEMENT
OFFICER
[13]
The
enforcement officer started his careful reasons for decision by noting that the
statutory obligation imposed by section 48 of the IRPA to execute a removal
order “as soon as is reasonably practicable” gives officers “little discretion
to defer removal”. He then addressed each of the submissions made on Mr
Shpati’s behalf.
[14]
Turning
first to the submission that Mr Shpati’s removal should be deferred because of the
outstanding applications for leave and for judicial review of the PRRA and the H&C
decision, he said:
I note that the enforcement of Mr Shpati’s removal order does not negate
him the right to have his PRRA/H&C reassessed, if judicial review is
granted by the Federal Court.
[15]
He then
correctly noted that the IRPA stays removals in certain circumstances, which did
not apply in Mr Shpati’s case. Absent a statutory stay, “immigration
proceedings are not automatically suspended where pending court applications
exist”, although an applicant may apply to the Federal Court for a temporary
stay of the execution of a removal order. Consequently, he declined to defer Mr
Shpati’s removal on the basis of his outstanding judicial review applications
to the Federal Court.
[16]
Second, the
officer found that deferral was not warranted because of a serious risk of harm
to Mr Shpati if he were returned to Albania.
The enforcement officer noted that the Board, and the PRRA and H&C officers,
had already assessed risk and found that he was not a refugee or a person in
need of protection. And, since the officer was not satisfied that “any new or
personalized risk exists”, the allegations of risk on return did not warrant
deferring Mr Shpati’s removal.
[17]
Third, he declined
to defer removal because either Mr Shpati was established in Canada, or the best interests of his
wife and children in the United
States so
required.
D. FEDERAL COURT DECISION
[18]
The Judge
heard the judicial review of the enforcement officer’s refusal to defer,
together with the judicial review applications relating to the PRRA and the H&C
decision. He upheld the PRRA decision, but set aside the H&C decision for
lack of adequate reasons, and remitted it for re-determination. Once the Judge had
rendered these decisions, Mr Shpati’s application for judicial review of the
enforcement officer’s refusal to defer his removal pending the Federal Court’s
disposition of the applications to review the PRRA and the H&C decision arguably
became moot.
[19]
However, the
Judge decided to hear the application for judicial review of the deferral
decision in the circumstances of the present case, whether or not it was moot (paras.
31 and 36). He reasoned (at para. 31) that there was still a live controversy
between the parties because Mr Shpati wished to remain in Canada pending the re-determination
of his H&C application. The Judge stated that, even if the application to
review the refusal of a deferral were granted, he could not remit the matter to
the officer to re-decide because the Court had already judicially reviewed the
PRRA and H&C decisions. However, he said, a declaration that the refusal to
defer was invalid would be an available remedy.
[20]
This was
the remedy that the Judge granted, having found (at para. 47) that
… the enforcement officer
erred in law in stating that if successful in his PRRA, Mr Shpati would be
entitled to return to Canada.
The Judge stated that, in so concluding, the officer must
have overlooked Perez v. Canada (Minister of Citizenship and Immigration), 2009 FCA 171, 82 Imm. L.R.
(3d) 167 (Perez), where it was held that if a person leaves Canada after
a negative PRRA decision, whether voluntarily or not, an application for
judicial review of that decision becomes moot and the PRRA itself cannot be
reassessed.
[21]
Earlier in
his reasons (at para. 42), the Judge had repeated and endorsed the following
statement in his reasons for decision in the stay motions:
Although an application for
leave and for judicial review of a negative PRRA does not automatically result
in a stay, I find it difficult to accept that Parliament intended that it was
“reasonably practicable”, for an enforcement officer, who is not trained in
these matters, to deprive an applicant of the very recourse Parliament had
given him.
[22]
As for the
scope of the enforcement officer’s discretion to defer removal, the Judge
stated (at para. 45):
… an enforcement officer has
not been empowered to opine on decisions already rendered on PRRA or H&C
applications with risk elements. Nor is he or she in a position to opine on
whether an applicant will be successful in an application for leave and for
judicial review already filed. I accept that the officer has jurisdiction to
defer removal on the basis that a decision will soon be rendered by the Court.
However, it is also open to the officer to refuse, leaving it to the applicant
to seek a stay from a judge of this Court.
[23]
The Judge noted
(at para. 44) that he had also dealt with the scope of the officer’s discretion
to defer in paragraph 47 of his reasons for granting the stay motions, where he
had said:
Nor do I rule out the
possibility that an enforcement officer may defer in circumstances in which new
events have occurred after the negative PRRA decision, such as natural
disasters in the form of tsunamis or earthquakes or political upheavals such as
“coup d’états.”
[24]
The Judge
certified the following two questions, proposed by the Minister, pursuant to IRPA,
paragraph 74(d):
a.
When a
foreign national has a negatively determined PRRA, has filed an application for
leave and judicial review of that PRRA decision, but continues to maintain the
same allegation of risk in a request to defer removal, does an enforcement
officer have the discretion to defer removal on that basis alone or must a
judicial stay based on the PRRA application for leave and for judicial review
be sought in Federal Court?
b. Does the potential mootness of
an applicant’s PRRA litigation upon removal warrant a deferral of removal
pending resolution of this same litigation?
[25]
No
questions were certified regarding the Judge’s dismissal of Mr Shpati’s
judicial review of the PRRA, or his setting aside of the H&C decision and
its pending re-determination. They are therefore not considered in this
appeal.
E. ISSUES AND
ANALYSIS
Issue 1: Standard of
review
[26]
The
Minister observed that the Judge seems not to have articulated the standard of
review applicable to the enforcement officer’s refusal to defer Mr Shpati’s
removal. I agree.
[27]
In my
view, the officer’s decision under section 48 is reviewable on a standard of
reasonableness because it involves either the exercise of discretion, or the
application to the facts of the words of section 48, “as soon as is reasonably practicable”.
However, any question of law on which the officer based his decision (such as
the scope of the statutory authority to defer) is reviewable on a standard of
correctness: Patel v. Canada (Citizenship and Immigration), 2011 FCA 187 at paras. 26-27.
Enforcement officers have no delegated legal power to decide questions of law.
[28]
Since
the issue in this appeal is whether the officer’s decision was either unreasonable
or based on an erroneous view of the law, the Court effectively steps into the
shoes of the Judge of the Federal Court who heard Mr Shpati’s application for judicial
review: see, for example, Acid Prairie Rain Coalition v. Canada (Minister of
Fisheries and Oceans), 2006 FCA 31; Canada Revenue Agency v. Telfer,
2009 FCA 23.
Issue 2: Did the
enforcement officer err in law by failing to take into account the fact that Mr
Shpati’s application for judicial review of the PRRA was potentially moot if he
was removed before it was decided?
[29]
Contrary
to the view expressed by the Judge (at para. 47), the officer did not state
that if Mr Shpati were successful in his application for judicial review of the
PRRA, “he would be entitled to return to Canada.” What the enforcement officer wrote was
more nuanced:
… the enforcement of Mr
Shpati’s removal order does not negate him the right to have his PRRA/H&C
reassessed, if judicial review is granted by the Federal Court.
In my respectful opinion, the
refusal to defer should not have been set aside as erroneous in
law on the basis of this
statement.
[30]
First,
even though an applicant’s removal from Canada renders her or his application
for judicial review of a PRRA moot, the Court may nonetheless exercise its
discretion to hear it on the basis of the factors set out in Borowski v. Canada
(Attorney General), [1989] 1 S.C.R. 342. If the Court decides to hear the application
despite its mootness and subsequently sets aside the PRRA decision, the
Minister could permit the applicant to return to Canada pending the re-determination of the PRRA.
In these circumstances, the PRRA application would not be moot. Hence, the
officer’s statement of the law could be characterized as elliptical and
incomplete, rather than as demonstrating that he misunderstood the law.
[31]
Second, the
written submissions to the enforcement officer by Mr Shpati’s counsel
requesting that his removal be deferred pending the determination of the applications
of leave and for judicial review made no mention of the implications of
Perez. Not surprisingly, therefore, the officer’s reasons for refusing to
defer focus principally on the fact that, absent a stay by the Federal Court or
a statutory stay, an application for judicial review of a PRRA does not automatically
stay a removal. I see no error in this statement of the law. Thus, even if the
enforcement officer did misstate the law as found by the Judge, it is not clear
to me that the impugned sentence in the officer’s reasons was the basis of his refusal
to defer Mr Shpati’s removal because of the outstanding judicial review
application.
[32]
The
materiality of the officer’s alleged error of law is further reduced by his conclusion
that, in view of the prior negative decisions by the Board, and by the PRRA and
H&C officers, and in the absence of information about a new risk, the
officer was not satisfied that Mr Shpati’s removal should be deferred because
he would be at risk if returned to Albania. The officer also concluded that
neither Mr Shpati’s establishment in Canada
nor the best interests of his children warranted a deferral.
[33]
Hence, if
one looks beyond the officer’s reasons to the outcome of the process, I am not
persuaded that his decision falls outside the range of those reasonably open to
him on the facts and the law.
[34]
This, in
my opinion, is sufficient to dispose of the appeal. However, in case I am
wrong, and in order to attempt to reduce uncertainty in the law, it is
appropriate for this Court to address the issue raised in the certified
question: does the potential mootness of the pending PRRA litigation warrant
deferral of removal?
[35]
In my view,
the answer to this question is no. If it were otherwise, deferral would be
virtually automatic whenever an individual facing removal had instituted
judicial review proceedings in respect of a negative PRRA. This would be
tantamount to implying a statutory stay in addition to those expressly prescribed
by the IRPA, and would thus be contrary to the statutory scheme.
[36]
Indeed, counsel
for Mr Shpati were not prepared to go this far. Their position and, perhaps,
that of the Judge (at para. 42) was that the potential mootness of the PRRA
litigation was not determinative in every case, but that it is an error of law
for an enforcement officer not to take it into account when determining requests
for the deferral of removal pending the disposition of judicial review
proceedings challenging a PRRA.
[37]
I disagree
with this argument. First, the potential mootness of the PRRA litigation would
be a factor whenever an enforcement officer is asked to defer a removal pending
the determination of a judicial review of a negative PRRA. As a result, it
would be formalistic to insist that officers’ reasons must refer to it in every
case as a condition precedent of the validity of their decision.
[38]
Second, the
potential mootness of the underlying judicial review application resulting from
the removal of the applicant does not necessarily constitute irreparable harm
to the applicant under the tripartite test so as to warrant the grant of a
judicial stay: El Ouardi v. Canada (Solicitor General), 2005 FCA 42 at
para. 8; Palka v. Canada (Minister of Public Safety
and Emergency Preparedness)
2008 FCA 165 at para. 20. However, the Judge’s decision granting Mr Shpati’s
motion for a stay seems to have given rise to divergent views in the Federal
Court: see paras. 37-40 of his reasons for the decision that is the subject of
the present appeal.
[39]
If
mootness does not in itself amount to irreparable harm for the purpose of the
tripartite test for the grant of a judicial stay of removal, I see no reason
why enforcement officers should always be legally required to consider it when determining
a request for deferral pending the disposition of PRRA litigation.
[40]
Consequently,
in my opinion, the enforcement officer in the present case could refuse to
defer Mr Shpati’s removal from Canada
without considering the implications of Perez, especially since the
submissions made to the officer on Mr Shpati’s behalf made no mention of Perez
and the potential mootness of the pending applications for leave and for
judicial review. Potential mootness is a consideration that the Federal Court
is better placed to take into account when weighing all the factors relevant
under the tripartite test for determining a motion for a judicial stay.
Issue 3: When
determining a request for removal, is an enforcement officer required to consider
the risk to the applicant if his removal were not deferred pending the
disposition of PRRA litigation?
[41]
As already
noted, the officer rejected Mr Shpati’s argument on risk by pointing out that
the Board had rejected his claim for refugee status, a decision upheld by the
Federal Court, and that his PRRA application had also been dismissed. The
officer further stated that he was refusing to defer on the ground of risk
because Mr Shpati had produced no evidence of some new (that is, post-PRRA)
risk to which he would be exposed it returned to Albania. I infer from this that if Mr Shpati had
such evidence, the officer would have considered whether it warranted deferral
and exercised his discretion accordingly.
[42]
In my
view, this is an accurate statement of the law. It is consistent with the
position adopted by this Court in Baron v. Canada (Minister of Public Safety and Emergency
Preparednes),
2009 FCA 81, [2010] 2 F.C.R. 311 (Baron). Baron concerned an enforcement
officer’s power to defer removal pending the determination of an H&C
application. The present case is analogous to Baron in that there is no
statutory stay of removal pending the determination of either an H&C
application or a judicial review application with respect to a negative PRRA.
[43]
In Baron
(at para. 51), Justice Nadon indicated the kinds of new risk that an
enforcement officer may consider when deciding whether to defer a removal. Paraphrasing
Justice Pelletier, then of the Federal Court, in Wang v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 148, [2001] 3 F.C. 682, also a case
dealing with a request to an enforcement officer for a deferral pending the determination
of an H&C application, Justice Nadon said:
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.
[44]
When, as
in the present appeal, an officer is requested to defer removal after a
negative PRRA, any risk relied on must have arisen after the PRRA. In addition
to new risk of harm, other personal exigencies have been held to warrant a
deferral because removal at that time would not be reasonably practicable: see,
for example, Simoes v. Canada (Minister of Citizenship and Immigration) (2000), 7 Imm. L.R.
(3d) 141 (F.C.T.D.) at para. 12; Ramada v. Canada (Solicitor General), 2005 FC 1112, 53 Imm. L. R. (3d)
74 at para. 3 (requests for deferral pending H&C decisions).
[45]
It is not
possible to provide a complete list of the considerations capable of rendering
removal not “reasonably practicable”. However, both the primary statutory duty
to remove, and the language chosen by Parliament to confine enforcement
officers’ discretion (« les circonstances le permettent » in the French
version of the text), indicate that the range is relatively narrow. Their
functions are limited, and deferrals are intended to be temporary. Enforcement
officers are not intended to make, or to re-make, PRRAs or H&C decisions.
[46]
In
response to the above analysis, Mr Shpati argues that enforcement officers must
be able to defer removal on the basis that a pending application for leave and
for judicial review was made in good faith. Otherwise, he says, applicants
would be effectively denied the benefit of the statutory right of judicial
review conferred by section 18.1 of the Federal Courts Act, R.S.C. 1985,
c. F-7, because PRRA litigation is potentially moot after their removal. He
says that the right to apply for judicial review of a decision of a “federal
board, commission or other tribunal” under section 18.1 includes decisions of
an enforcement officer under section 48. In addition, the judicial review
provisions in IRPA, section 72 apply to all decisions taken under the Act.
[47]
This may have
been what the Judge had in mind when he said (at para. 42) :
Although an application for
leave and for judicial review of a negative PRRA does not automatically result
in a stay, I find it difficult to accept that Parliament intended that it was
“reasonably practicable”, for an enforcement officer, who is not trained in
these matters, to deprive an applicant of the very recourse Parliament had
given him.
[48]
I do not
agree with this argument. First, because good faith in this context is a very
low threshold, a deferral would tend to be granted in most cases where an
applicant had made an application for judicial review of a negative PRRA. The
adoption of Mr Shpati’s argument would be almost tantamount to providing a statutory
stay on removal in a situation which is not one of those expressly provided by
the IRPA, and would therefore be inconsistent with the scheme enacted by
Parliament and section 48 in particular.
[49]
Second, the
fact that an individual’s removal renders PRRA litigation potentially moot does
not abrogate that person’s right under section 18.1 to make an application for
judicial review of the enforcement officer’s refusal to defer because the Court
may exercise its discretion to hear the matter despite its mootness.
Nonetheless, removal does make it more difficult for an applicant to obtain
redress. However, the answer to this is that an applicant can always apply to
the Federal Court for a stay of removal pending the disposition of the judicial
review application.
[50]
Hence,
limiting the scope of the enforcement officer’s discretion in the manner set
out in these reasons does no violence to the integrity of the Federal Court’s
jurisdiction under section 18.1 and accords with the policy of the IRPA that
foreign nationals must leave Canada immediately after a departure order becomes
enforceable and that the order must be executed as soon as is reasonably practicable.
[51]
The
Federal Court can often consider a request for a stay more comprehensively than
an enforcement officer can a deferral. This may result in a degree of
bifurcation between the Federal Court and enforcement officers. However, in my
opinion, it is the decision-making scheme that Parliament has enacted.
F. CONCLUSIONS
[52]
For the
above reasons, I would allow the Minister’s appeal, dismiss Mr Shpati’s
application for judicial review, and answer the certified questions as follows:
Question 1: When a foreign
national has a negatively determined PRRA, has filed an application for leave
and judicial review of that PRRA decision, but continues to maintain the same
allegation of risk in a request to defer removal, does an enforcement officer
have the discretion to defer removal on that basis alone or must a judicial
stay based on the PRRA application for leave and for judicial review be sought
in Federal Court?
Answer: An enforcement
officer may temporarily defer removal when the foreign national provides
evidence that events after the PRRA expose the applicant to a risk of serious personal
harm if returned. Otherwise, the applicant may seek a judicial stay in the
Federal Court.
Question 2: Does the potential
mootness of an applicant’s PRRA litigation upon removal warrant a deferral of
removal pending resolution of this same litigation?
Answer: The potential
mootness of an applicant’s PRRA litigation does not, in and of itself, warrant
a deferral of removal.
“John M. Evans”
“I
agree
J.
Edgar Sexton J.A.”
“I
agree
David
Stratas J.A.”
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