Docket: IMM-1756-16
Citation:
2017 FC 482
Vancouver, British Columbia, May 9, 2017
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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VINESH KAPOOR
SCHLEICHER
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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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Respondent
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JUDGMENT AND REASONS
[1]
The Applicant, a long time permanent resident of
Canada found inadmissible due to serious criminality, seeks judicial review of
the decision of an Inland Enforcement Officer [the Officer] of the Canada
Border Services Agency [CBSA], dated April 28, 2016, which refused to defer his
removal to Fiji.
[2]
For the reasons that follow, this application is
dismissed. The Officer considered the evidence on the record and reasonably
found that it was not sufficient to warrant the exercise of his limited
discretion to defer the Applicant’s removal.
I.
The Background
[3]
The Applicant came to Canada in 1972 at the age
of nine with his mother and siblings. He married a Canadian citizen in 2007 and
they have one daughter, born on January 17, 2010.
[4]
The Applicant’s criminal history dates back to
1988. However, the criminal convictions which resulted in a finding of
inadmissibility pursuant to s. 36 of the Immigration and Refugee Protection
Act, SC 2001, c 27 [the Act] occurred more recently. The Applicant was
convicted in August 2014 of one count of robbery and two counts of attempted
robbery under s. 344 of the Criminal Code, RSC 1985, c C-46. He pled
guilty to these charges and was sentenced to three years and six months in
jail, with 18 months credit for pre-trial detention.
[5]
The Applicant also faces additional charges in
Alberta, some of which have been resolved and others of which the Crown intends
to stay upon the Applicant’s removal from Canada.
[6]
As a result of the finding of inadmissibility, a
deportation order was issued on May 21, 2015. The Applicant applied for a
Pre-Removal Risk Assessment [PRRA] in July 2015, which was considered and
refused on August 19, 2015. The PRRA officer found that the Applicant had not
provided sufficient evidence to establish, on a balance of probabilities, that
he would face personalized risk of serious harm and, therefore, he was not a
person in need of protection. The Applicant did not apply for judicial review
of the PRRA decision.
[7]
The Applicant then applied for permanent
residence on humanitarian and compassionate [H&C] grounds on August 26,
2015. In his H&C application, he described, among other things: his status
as a permanent resident of Canada for 33 years; his lack of any ties to Fiji
having never returned there; his past employment; his drug addiction and
efforts to address it; his criminal convictions and sentences; his expression
of remorse; and, the impact of his possible deportation on his young daughter
and on his wife, who has taken on the role of single parent and who has health
problems, cannot work, and is now “financially
destitute”.
[8]
With respect to the impact on his daughter, his
H&C submissions state that his current incarceration has had a “deep emotional impact” which would be compounded by
his removal. He adds that his removal would cause “catastrophic
disruption to his family”, referring to his elderly mother, his wife,
and his daughter.
[9]
More specifically, with respect to the best
interests of his daughter, the submissions state that, “great
emotional and developmental harm will arise to the child should Mr. Schleicher
be removed from Canada. It is in the best interest of Mr. Schleicher’s Canadian
daughter that he not be removed from Canada and that he be permitted to raise
her in Canada”.
[10]
At the same time that he made his H&C
application, the Applicant requested a deferral of his removal pending the
determination of his H&C claim. The submissions of his Counsel consisted of
a letter requesting that the H&C application and submissions, which were
enclosed, be considered in the determination of the deferral.
[11]
The request for deferral of removal was refused
on October 27, 2015, because no removal date had yet been set due to the
Applicant’s outstanding criminal charges in Alberta.
[12]
The Applicant made a second deferral request on
April 26, 2016, following receipt of a notice of removal that was scheduled for
May 2, 2016. The Applicant did not provide supporting documents with the second
request; rather, he directed the Officer to rely on the information that he had
submitted with his initial request. The second deferral request noted that the
Applicant’s six-year-old daughter would be affected by any decision made. It
also stated that: compelling circumstances existed to justify a stay of the
removal order; that “under the circumstances …severe
harm would arise to Mr. Schleicher’s daughter should he be removed”;
that removal would be “against the short and long term
interests of the child, particularly as Mr. Schleicher has deepened his
relationship with his daughter since being removed to Alberta from British
Columbia and in light of the recent case law, specifically Kanthasamy v
Canada (Citizenship and Immigration), 2015 SCC 61”; and finally,
that the child had recently begun seeing a child psychologist who would issue a
report on how the Applicant’s removal would impact her. The letter stated that
this report would be provided as supplementary material in support of the
pending H&C application. The Applicant’s Counsel requested an immediate
decision.
[13]
On April 28, 2016, the Officer refused to defer
the Applicant’s removal. The April 28, 2016 decision is the subject of this application
for judicial review.
II.
The Decision Under Review
[14]
The Officer noted the submissions as set out
above. The Officer also noted that documents had not been provided in support
of the second request for deferral and that he would consider the information
that had been submitted with respect to the first deferral request. The Officer
listed the documents considered, which included the Applicant’s H&C
application, affidavits from the Applicant’s wife and another friend, various
country condition documents and media articles regarding Fiji.
[15]
The Officer noted, among other things, the
Applicant’s criminal history that had led to the finding of inadmissibility and
subsequent deportation order, the outstanding charges the Applicant faced in
Alberta, which would be stayed upon the Applicant’s removal from Canada, and
the results of the PRRA decision.
[16]
The Officer noted that he had limited discretion
under s. 48 of the Act, which requires that a removal order be enforced as soon
as possible. He added that a removals officer does not generally have the
jurisdiction to consider H&C factors, but does have a limited discretion to
consider “compelling or special circumstances,
including the short-term interests of children involved”.
[17]
The Officer also noted that filing an H&C
application does not affect the validity of a valid removal order and that
there is no statutory stay of removal pending the determination of an H&C
application. The Officer added that the processing times for H&C
applications range from 30 – 42 months and, based on the fact that the
Applicant had submitted his H&C in August 2015, estimated that the H&C
application might not be determined for an additional 24- 34 months. The
Officer observed that the Applicant was not making a short-term deferral
request.
[18]
With respect to the best interests of the child
[BIOC], the Officer noted that he had considered the submissions made in the
August 2015 H&C application. The Officer also considered that the letter
from the Applicant’s Counsel indicated that the Applicant’s daughter was seeing
a child psychologist and that a report would be forthcoming as a supplementary
submission to the H&C application.
[19]
The Officer found that the Applicant had failed
to provide any documentary evidence in support of his assertions about the
effect his removal would have on his daughter. The Officer considered that the
child had only begun to see a psychologist one week before the second deferral
request (which was submitted on April 26, 2016 and determined on April 28,
2016) and, as a result, the psychological findings were unknown, as was the
timing of the report.
[20]
With respect to the Applicant’s other
submissions in support of deferring his removal, the Officer noted that the
Applicant’s risk had been assessed in the PRRA. The Officer found that
documentary evidence regarding incidents of discrimination in Fiji occurred
prior to the Applicant’s PRRA and several of the same reports had been
submitted to and considered by the PRRA officer. Therefore, the allegations and
documents in support had already been dealt with by the appropriate officer.
The Officer acknowledged that the Applicant might face discrimination upon return
to Fiji, but concluded that insufficient evidence had been submitted to
establish, on a balance of probabilities, that the Applicant would face
personalized risk of serious harm if returned to Fiji.
[21]
The Officer concluded that based on the totality
of the evidence, a deferral of removal was not warranted.
III.
The Standard of Review
[22]
Discretionary decisions of removals officers are
reviewed on the reasonableness standard (Baron v Canada (Minister of Public
Safety and Emergency Preparedness), 2009 FCA 81 at para 25, [2010] 2 FCR
311 [Baron]; Escalante v Canada (Minister of Public Safety and
Emergency Preparedness), 2016 FC 897 at para 13, [2016] FCJ No 859 (QL)).
[23]
The reasonableness standard focuses on “the existence of justification, transparency and
intelligibility within the decision-making process” and considers “whether 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 at para 47, [2008] 1 S.C.R. 190).
[24]
In Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 14-15,
[2011] 3 S.C.R. 708 [Newfoundland Nurses], the Supreme Court of Canada
elaborated on the requirements of Dunsmuir, noting that the reasons are
to “be read together with the outcome and serve the
purpose of showing whether the result falls within a range of possible
outcomes.” In addition, where necessary, courts may look to the record “for the purpose of assessing the reasonableness of the
outcome”.
IV.
The Issues
[25]
The Applicant raised several arguments in his
written memorandum. They were narrowed in oral argument to focus on whether the
Officer’s decision is reasonable.
[26]
The Applicant submits that the Officer erred by
failing to exercise his discretion to defer removal pending the determination
of the H&C application, given the compelling circumstances.
[27]
The Applicant further submits that, although the
Officer was not required to conduct a full H&C analysis, the Officer had a
duty to consider the short-term best interests of the child and that this
consideration should have been guided by the Supreme Court of Canada’s decision
in Kanthasamy v Canada (Minister of Citizenship and Immigration), 2015
SCC 61, [2015] 3 S.C.R. 909 [Kanthasamy]. The Applicant submits that Kanthasamy
has modified the scope of a removal officer’s discretion in deferring removal
where the best interests of children are at stake and governs the approach to
the consideration of those interests.
V.
The Applicant’s Submissions
[28]
The Applicant argues that officers have the
discretion to defer the removal of an individual despite a valid deportation
order and pending the determination of an H&C application. The H&C
considerations, particularly the best interests of the child, constitute compelling
circumstances to justify a deferral (Ortiz v Canada (Minister of Public
Safety and Emergency Preparedness), 2012 FC 18 at paras 43-46, [2012] FCJ
No 11 (QL)).
[29]
The Applicant acknowledges that it is not the
role of an officer considering a deferral of removal to conduct a full H&C
analysis. However, faced with the compelling circumstances set out in the
Applicant’s H&C application, the Officer was required to consider whether
these circumstances justified deferring his removal until such time as his H&C
application could be determined.
[30]
The Applicant submits that the circumstances are
clearly compelling, particularly the impact on his daughter in the context of
the other circumstances, including that: his wife has health issues and is
unable to work; his other family members depend on him; he was the sole
financial provider for his wife and daughter prior to his incarceration; he has
spent the vast majority of his life in Canada; and, he has no ties to Fiji.
[31]
The Applicant argues that Kanthasamy has
broadened the scope of an officer’s discretion when considering BIOC, including
in the context of a deferral request where there is a pending H&C
application. He submits that an officer must conduct a meaningful preliminary
assessment of the merits of an H&C application and, if there is a
possibility that a child’s short-term interests may be prejudiced by removal,
defer removal to permit the H&C to be determined by the appropriate
decision-maker. The Applicant submits that this preliminary assessment must
apply the Kanthasamy principles, including the Supreme Court of Canada’s
reiteration that “[c]hildren will rarely, if ever, be
deserving of any hardship” (at para 41).
[32]
The Applicant submits that the Officer did not
conduct a meaningful preliminary assessment in light of Kanthasamy The
failure to consider the hardship that would befall the Applicant’s daughter, he
argues, when coupled with the other evidence on the record of the compelling
circumstances in his case, renders the refusal to defer his removal
unreasonable.
VI.
The Respondent’s Submissions
[33]
The Respondent submits that the law is clear
that a removal officer’s discretion to defer removal is limited and Kanthasamy
has not changed the scope of this discretion. Kanthasamy addressed how
H&C applications should be considered where BIOC issues are raised. It did
not address the considerations relevant to a deferral of removal.
[34]
The Respondent submits that Officers have no
jurisdiction to conduct substantive reviews of H&C factors, as this would
usurp the role of the H&C decision-maker and turn the removals stage into a
“‘pre H&C’ application” (Simoes v Canada
(Minister of Citizenship and Immigration) (2000), 187 FTR 219 at para 11,
[2000] FCJ No 936 (QL)).
[35]
The Federal Court of Appeal has established that
an officer has limited discretion in enforcing removals. The existence of an
H&C application does not constitute a bar to the execution of a valid
removal order (Baron, above at paras 49-51).
[36]
The Respondent points to several decisions of
this Court post-Kanthasamy, which confirm that the law remains
unchanged; removal officers are only mandated to consider the short-term BIOC
in the context of determining whether compelling circumstances exist to warrant
deferral (See for example, Animodi v Canada (Minister of Public Safety and
Emergency Preparedness), 2016 FC 845 at para 21; Yuris v Canada
(Minister of Citizenship and Immigration), 2016 FC 1333 at paras 9-10,
15-16, [2016] FCJ No 1380 (QL); Nguyen v Canada (Minister of Public Safety
and Emergency Preparedness) 2017 FC 225 at paras 11-14, [2017] FCJ No 203
(QL)).
VII.
The Officer’s Discretion to Defer Removal is
Limited
[37]
In Dheer v Canada (Minister of Public Safety
and Emergency Preparedness), 2016 FC 1194 at para 12-13, [2016] FCJ No 1485
(QL), in the context of a motion for a stay of a removal order, Justice Roy
succinctly noted:
[12] The removal officer is not without any
discretion when a removal order is to be enforced. However, the Federal Court
of Appeal in Baron v Canada (Minister of Public Safety and Emergency
Preparedness), 2009 FCA 81, [2010] 2 FCR 311 [Baron], is a binding
authority for the proposition that “[i]t is trite law that an enforcement
officer’s discretion to defer removal is limited.” (para 49). Nadon J.A., with
the support of Desjardins J.A., found at para 50:
[50] I further opined that the mere
existence of an H&C application did not constitute a bar to the execution
of a valid removal order. With respect to the presence of Canadian-born
children, I took the view that an enforcement officer was not required to undertake
a substantive review of the children's best interests before executing a
removal order.
That approach found echo in the reasons of
Blais J.A. (as he then was) who wrote that “H&C
applications are not intended to obstruct a valid removal order”. (para 87)
[13] A different bench of the Federal Court
of Appeal reached the same conclusion in Shpati v Minister of Public Safety
and Emergency Preparedness, 2011 FCA 286, [2012] 2 FCR 133, where Evans
J.A., on behalf of the Court, ruled that “enforcement officers are not intended
to make, or to remake, PRRAs or H&C decisions” (para 45). This is in effect
what the Applicants argue should have been done by the removal officer. They
speak of the better life the children would enjoy in Canada and of the family
life that should be enhanced and cherished. That leads to the conclusion “that
the humanitarian application that they have submitted should be studied before
any deportation” (Memorandum of facts and law, para 13). Unfortunately for the
Applicants, such is not the state of the law. These are not
considerations that are to be taken into account at the stage of removal.
[My emphasis]
[38]
In Baron, Justice Nadon cited Wang v
Canada (Minister of Citizenship and Immigration), [2001] 3 FCR 682 at para
48, 2001 FCT 148 [Wang], where the Federal Court of Appeal found that
deferral of removal orders “should be reserved for
those applications or processes where the failure to defer will expose the
applicant to the risk of death, extreme sanction or inhumane treatment”.
At paragraph 51 of Baron, Justice Nadon endorsed the reasons and the
range of factors set out in Wang that may be relevant to a decision to
defer removal, including that:
• 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]
[39]
The Applicant argues that “special considerations” or compelling circumstances
can be, and in this case are, set out in the pending H&C application and
that this justifies deferral. The Applicant points to Ortiz, above at
para 45, where Justice O’Keefe stated that removal officers can consider “compelling circumstances such as H&C considerations”.
However, that phrase must be considered in the context of the passages that
precede and follow it. These passages clearly reflect Justice O’Keefe’s
articulation and application of the prevailing jurisprudence, including that “an outstanding H&C application, absent special
considerations, is not sufficient on its own to justify delay unless there is a
threat to personal safety” (Ortiz, above at para 43) and that the
scope of a removal officer’s considerations in assessing a deferral request is
limited (Ortiz, above at para 44, citing Wang, above). Justice O’
Keefe then goes on at paragraphs 45-46 to state that:
[45] Removal officers are not positioned to
evaluate all the evidence that might be relevant in an H&C application (see
Ramada above, at paragraph 7). However, they can consider whether
there are good reasons to delay removal, such as a person’s ability to travel,
the need to accommodate other commitments such as school obligations or
compelling circumstances such as H&C considerations (see Ramada
above, at paragraph 3). They can also consider whether the consequences of
removal can be remedied by readmission after an outstanding application is
approved (see Wang above, at paragraph 48).
[46] In terms of affected children, their
immediate interests should be treated fairly and with sensitivity (see Joarder
v Canada (Minister of Citizenship and Immigration), 2006 FC 230, [2006] FCJ
No 310 at paragraph 3). However, removal officers have “no obligation to
substantially review the children's best interest before executing a removal
order” (see Baron above, at paragraph 57).
[Emphasis added]
[40]
Justice O’Keefe’s reference to what a removal
officer can consider to justify removal does not, in my view, expand the
officer’s discretion, but rather confirms that compelling circumstances “such as” H&C considerations could justify
deferral. In other words, H &C considerations may be compelling, but that
is a determination to be made based on the evidence.
[41]
The fact of a pending H&C application is
not, on its own, a special consideration justifying a deferral. Such an approach
would be inconsistent with the law, which requires valid removal orders to be
executed as soon as possible and does not provide for a stay of removal pending
the determination of an H&C application.
[42]
More recently, in Danyi v Canada (Minister of
Public Safety and Emergency Preparedness) 2017 FC 112, [2017] FCJ No 156
(QL) [Danyi], Justice Boswell addressed similar arguments and reviewed
the jurisprudence and noted at para 30:
[30] Moreover, in Canada (Public Safety
and Emergency Preparedness) v Shpati, 2011 FCA 286 at para 45, [2012] 2 FCR
133, the Court of Appeal stated that enforcement officers’ “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.” In Munar
v Canada (Minister of Citizenship and Immigration), 2005 FC 1180 at para
36, [2006] 2 FCR 664 [Munar], the Court observed that enforcement
officers “cannot be required to
undertake a full substantive review of the humanitarian circumstances that are
to be considered as part of an H&C assessment. Not only would that result
in a ‘pre-H&C’ application,’ to use the words of Justice Nadon in Simoes,
but it would also duplicate to some extent the real H&C assessment.”
[43]
The recent jurisprudence confirms that the
principles enunciated in Baron and Wang continue to apply. Recent
jurisprudence has also considered the scope of a removal officer’s
consideration of BIOC within the assessment of special circumstances.
[44]
As noted by the Respondent, the Federal Court of
Appeal decision in Canada (Minister of Citizenship and Immigration) v Varga,
2006 FCA 394, [2007] 4 FCR 3, remains applicable. At paragraph 16 of that
decision, Justice Evans stated that “[w]ithin the
narrow scope of removals 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 an H&C
application under subsection 25(1).”
[45]
In Danyi, above at paras 34-35, Justice
Boswell considered the nature of the assessment of BIOC that is called for in
the context of a deferral of removal, noting that:
[34] More recently, in Kampemana v Canada
(Public Safety and Emergency Preparedness), 2015 FC 1060 at para 34, [2015]
FCJ No 1119 [Kampemana], the Court confirmed that while enforcement
officers “must consider the immediate and short-term interests of the children
and treat these fairly and with sensitivity”, they “are not required to review
the best interests of any children comprehensively before enforcing a removal
order.” Likewise, in Ally v Canada (Citizenship and Immigration), 2015
FC 560 at para 21, [2015] FCJ No 547, the Court concluded that enforcement
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” and they “should consider only the short-term
best interests of the child.”
[35] The jurisprudence has established that
enforcement officers are required to consider the short-term best interests of
a child in a fair and sensitive manner (see: Joarder at para 3; Kampemana
at para 34). It is also clear that: “while the best interests of the children
are certainly a factor that must be considered in the context of a removal
order, they are not an over-riding consideration” (Pangallo v Canada (Public
Safety and Emergency Preparedness), 2014 FC 229 at para 25, 238 ACWS (3d)
711).
[46]
In summary, the jurisprudence has established
that: the discretion of a removals officer is limited; the consideration of
H&C factors is limited to compelling circumstances, including the
short-term best interests of a child; and, while the short-term best interests
of a child must be considered in a fair and sensitive manner, it is not a full
substantive analysis as in the H&C determination and, in comparison, is at
the low end of the spectrum, and is not an overriding consideration.
[47]
In the present case, the Officer did not err in
finding that his discretion to defer removal was limited and that his
jurisdiction to consider H&C factors should focus on whether there are
compelling circumstances, including the short-term best interests of a child,
to justify a deferral of removal. The issue is whether the Officer considered
the short-term best interests of the child and exercised his limited
jurisdiction reasonably.
VIII.
The Impact of Kanthasamy
[48]
In Kanthasamy, the Supreme Court of
Canada addressed how section 25 of the Act should be interpreted. Section 25
provides that an exemption from some findings of inadmissibility and from other
criteria or obligations of the Act may be granted on the basis of humanitarian
and compassionate considerations, “taking into account
the best interests of a child directly affected”.
[49]
I agree with the Respondent that Kanthasamy
does not change the scope of a removal officer’s limited discretion to defer
removal. However, I am of the view that Kanthasamy is not necessarily
limited to determinations pursuant to section 25 and would provide guidance to
decision-makers who consider humanitarian and compassionate factors, including
the best interest of the child, in analogous contexts.
[50]
That said, several of the passages in Kanthasamy
relied on by the Applicant to argue that the Officer erred in his consideration
of the short-term best interests of the child in light of Kanthasamy
overstate the impact of the decision and must be put in context.
[51]
The Applicant notes that Kanthasamy
confirmed that children are rarely deserving of any hardship, suggesting that “any hardship” should be sufficient to justify
deferral of removal. This language of “any hardship”
originated in Hawthorne v Canada (Minister of Citizenship and Immigration),
2002 FCA 475 at para 9, [2003] 2 FC 555 (FCA) [Hawthorne], which also
provided guidance for the assessment of the best interests of a child in an
H&C application. The principle that a child is rarely deserving of any
hardship is not disputed, but “any hardship”
does not provide a new threshold for determining an H&C application. In Kanthasamy,
the Supreme Court of Canada acknowledged that some hardship was inevitable.
[52]
At paragraph 41 of Kanthasamy, the
Supreme Court focussed on Mr. Kanthasamy’s particular circumstances, given that
he was the applicant and was a child (under the age of 18) at the relevant
time. The Court stated:
[41] It is difficult to see how a child can
be more “directly affected” than where he or she is the applicant. In my view,
the status of the applicant as a child triggers not only the requirement that
the “best interests” be treated as a significant factor in the analysis, it
should also influence the manner in which the child’s other circumstances are
evaluated. And since “[c]hildren will rarely, if ever, be deserving of any
hardship”, the concept of “unusual and undeserved hardship” is presumptively
inapplicable to the assessment of the hardship invoked by a child to support
his or her application for humanitarian and compassionate relief: Hawthorne,
at para. 9. Because children may experience greater hardship than adults faced
with a comparable situation, circumstances which may not warrant humanitarian
and compassionate relief when applied to an adult, may nonetheless entitle a
child to relief: see Kim v. Canada (Citizenship and Immigration), [2011]
2 F.C.R. 448 (F.C.), at para. 58; UNHCR, Guidelines on International
Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951
Convention and/or 1967 Protocol relating to the Status of Refugees,
HCR/GIP/09/08, December 22, 2009.
[Emphasis added]
[53]
I do not agree with the Applicant that the
possibility of a child experiencing “any hardship”
is determinative of the child’s short-term best interests within the limited
discretion of the removal officer to defer removal of the child’s parent
pending the determination of an H&C application.
[54]
The Supreme Court’s guidance in Kanthasamy,
above at para 23, sets out the need to consider all relevant factors and calls
for a more liberal interpretation of H&C considerations, but it also
acknowledges that some hardship is inevitable:
[23] There will inevitably be some hardship
associated with being required to leave Canada. This alone will not generally
be sufficient to warrant relief on humanitarian and compassionate grounds under
s. 25(1) : see Rizvi v. Canada (Minister of Citizenship and Immigration),
2009 FC 463, at para. 13 (CanLII); Irimie v. Canada (Minister of Citizenship
and Immigration) (2000), 10 Imm. L.R. 206 (F.C.T.D), at para. 12. Nor was
s. 25(1) intended to be an alternative immigration scheme: House of Commons,
Standing Committee on Citizenship and Immigration, Evidence, No. 19, 3rd Sess.,
40th Parl., May 27, 2010, at 15:40 (Peter MacDougall); see also Evidence, No.
3, 1st Sess., 37th Parl., March 13, 2001, at 9:55 to 10:00 (Joan Atkinson).
[55]
In Kanthasamy, the Supreme Court explained
that what will warrant relief under section 25 will vary depending on the facts
and context of each case. Officers making such decisions must substantively
consider and weigh all of the relevant facts and factors before them (at para
25). A significant aspect of Kanthasamy is the Court’s clear direction
to avoid imposing a threshold of unusual, undeserved or disproportionate harm
and to “give weight to all relevant humanitarian and
compassionate considerations in a particular case” (Kanthasamy,
above at para 33) [emphasis in original]. Officers must be alert, alive and
sensitive to the best interests of the child; simply stating that the interests
have been considered is not enough. The child’s best interests must be well
identified and examined in light of all the evidence (Kanthasamy, above
at paras 35-39).
[56]
In the present case, the Officer considered the
Applicant’s submissions in support of his request for deferral, including the
best interests of his daughter. There is no suggestion in the decision that the
Officer imposed a threshold of undue, undeserved or disproportionate harm or
that the Officer did not consider all the relevant facts and factors on the
record in assessing the short-term best interests of the child. Kanthasamy
does not impose an obligation on the Officer to seek out additional information
about the child’s short–term best interests. The Officer reviewed all the
evidence that was available to him.
IX.
The Officer’s Decision is Reasonable
[57]
The H&C submissions (in support of the
H&C application filed in August 2015) were the same submissions relied on
by the Applicant to support his request for deferral, along with the letter
from his Counsel. In accordance with the guidance of Newfoundland Nurses,
at para 15, I have reviewed the record to better inform my assessment of the
reasonableness of the Officer’s decision. The record reveals that very little
information was provided regarding the child’s best interests, whether in the
long- or short-term. There were assertions regarding the re-established
relationship between the Applicant and his daughter and that the Applicant’s
incarceration had a deep emotional impact on his wife and daughter, which would
be exacerbated by his removal. These same statements appeared in the
Applicant’s affidavit and in his wife’s affidavit. In addition, there was one
paragraph in the request for deferral which specifically referred to the best
interests of the child and stated that “great emotional
and developmental harm will arise…” and that “it
is in the best interest of [his daughter] that he not be removed from Canada
and that he be permitted to raise her in Canada”.
[58]
In Nguyen, Justice Boswell considered the
reasonableness of a decision refusing to defer removal and submissions, similar
to the submissions in the present case regarding a failure to consider BIOC.
Justice Boswell noted:
[23] The burden upon an applicant of
adducing evidence with respect to the BIOC in the context of an H&C
application applies equally in the context of a request for deferral of a removal
order. In this regard, the Court in Omidsorkhabi v Canada (Public Safety and
Emergency Preparedness), 2015 FC 954 at para 15, [2015] FCJ No 980, stated:
“removal officers have very limited discretion to defer removal…The burden is
on the Applicant to provide the necessary evidence and justification for his
request.” Furthermore, it has been established that: “it is up to the person
relying on the best interests of the child to adduce proof supporting his or
her allegations. Vague conjectures are not sufficient” (see Mondelus v
Canada (Public Safety and Emergency Preparedness), 2011 FC 1138 at para 76,
[2011] FCJ No 1392).
[59]
Similarly, in the present case, the burden was
on the Applicant to provide evidence to support his assertions regarding the
short-term best interests of the child. I acknowledge the Applicant’s Counsel’s
submission that the Applicant’s incarceration and the family’s financial
situation made it difficult for the Applicant to garner supporting evidence.
However, the Applicant made two deferral requests a year apart, both aided by
Counsel; yet, the record does not include any supporting information about the
impact on the child.
[60]
As noted by the Officer, the promise of a report
from a psychologist, at some point in the future, for the purpose of
supplementing the pending H&C application, does not assist in supporting
the deferral request. The Applicant did not adequately support his assertions
regarding the best interests of his child. The Officer considered the little
evidence provided with respect to the child, which amounted to assertions, and
the other related submissions made regarding separation from his family. The
Officer reasonably found that, based on the record, there was insufficient
evidence regarding the effect of the applicant’s removal on his daughter.
[61]
It is not for the Court to reweigh the evidence
or to speculate about the impact the father’s removal will have on his child.
[62]
As noted in Baron, above at para 69:
“… one of the unfortunate consequences of a
removal order is hardship and disruption of family life. However, that clearly
does not constitute irreparable harm. To paraphrase the words of Pelletier
J.A., found at paragraph 88 of his Reasons in Wang, supra, family
hardship is the unfortunate result of a removal order which can be remedied by
readmission if the H&C application is successful.”
[63]
The Officer’s overall finding that, based on the
totality of the evidence, a deferral of removal was not warranted, is
reasonable.
X.
No Question is Certified
[64]
The Applicant initially proposed that the
following question be certified:
Has the Supreme Court of Canada’s decision
in Kanthasamy v Canada modified the scope and nature of a removal
officer’s authority when considering the best interest of a child directly
affected by a decision in relation to the child’s parent’s request for deferral
of removal where there is an underlying pending application for permanent
residence grounds based on humanitarian and compassionate considerations.
[65]
Following further submissions, the Applicant
agreed that there were two steps to the Officer’s analysis and that the first
step, which focuses on the Officer’s limited discretion to defer removal, was
not affected by Kanthasamy. At the second step, the question is whether
the Officer’s consideration of the short-term best interests of a child may be
affected by Kanthasamy. Hence, the proposed question would focus on
whether the interpretation and guidance of the Supreme Court of Canada
regarding H&C assessments and the best interests of the child apply in contexts
other than section 25 of the Act.
[66]
Although it is my view that the principles in Kanthasamy
would guide determinations of H&C factors and the best interests of a child
in other analogous contexts and that the resolution of this issue would bring
some clarity and further guidance to removal officers, the determination of the
question would not be dispositive of the current application. As noted, there
is no indication in the decision that the Officer erred in his assessment of
the short-term best interests of the child. The Officer’s finding was based on
the insufficient evidence provided by the Applicant to establish that the
child’s short-term best interests would be affected and overall, that the
totality of the evidence did not warrant deferral.
[67]
As a result, the proposed question will not be
certified.
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