Docket: IMM-238-17
Citation:
2017 FC 931
Ottawa, Ontario, October 18, 2017
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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RAYMOND ORTIZ
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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
I.
Overview
[1]
This is an application for judicial review of a
decision of a Canada Border Services Agency [CBSA] Enforcement Officer [the
Officer], dated January 16, 2017, refusing the Applicant’s request for deferral
of his removal to the United States.
[2]
As explained in greater detail below, this
application is allowed, because I have concluded that the Officer’s decision,
in its treatment of the evidence and arguments surrounding the effect of the
Applicant’s removal upon his autistic son, does not demonstrate the
transparency and intelligibility necessary to be found reasonable.
II.
Background
[3]
The Applicant, Mr. Raymond Ortiz, is a citizen
of the United States who entered Canada in December 2002. He has three children
with his common-law partner, Anne Kouvas, with whom he has lived since coming
to Canada. Their children are a 13-year-old daughter, Periana, a 7-year-old
son, Graedyn, and a 4-year-old son, Lukas, who was diagnosed in February 2016
with nonverbal autism. Mr. Ortiz is a stay-at-home father and the children’s
principal caregiver. His partner works as a corporate travel agent but has been
on short-term disability since September 2016, suffering from depression,
lupus, fibromyalgia, EDS, scoliosis, and chronic pain.
[4]
In December 2016, Mr. Ortiz was charged with
assaulting his partner and was detained for a short period. On January 5, 2017,
he received a conditional discharge and 12 months’ probation. He subsequently
received a Direction to Report for removal on January 18, 2017 and requested
deferral of removal, citing his family circumstances and an intended
application for permanent residence in Canada on humanitarian and compassionate
[H&C] grounds. This request was refused by the Officer on January 16, 2017,
in the decision which is the subject of this judicial review application. Mr.
Ortiz sought a stay of removal, which was granted by Justice Simpson.
III.
Issues
[5]
As issues supporting his request for judicial
review, the Applicant submits that the Officer’s decision represents a
fettering of discretion and that the Officer used the wrong test in considering
the best interests of the child. The Respondent articulates the issues as
follows:
A.
What is the applicable standard of review?
B.
Has the Applicant established a reviewable
error?
[6]
The arguments raised by the Applicant can be
analyzed under the second issue expressed by the Respondent, in the context of
which I will also address the applicable standard of review.
IV.
Analysis
[7]
My decision to allow this application for
judicial review turns on Mr. Ortiz’s argument that the Officer’s decision does
not demonstrate transparency and intelligibility in its treatment of the
evidence and submissions surrounding the effect that Mr. Ortiz’s removal would
have on his four-year-old son, Lukas.
[8]
The evidence before the Officer from Lukas’s
pediatrician was that Lukas has been diagnosed with Autism Spectrum Disorder
and that he is not able to speak or interact with others, although he is able
to interact to a limited degree with his father, who is his primary caregiver.
Mr. Ortiz’s partner explained in her affidavit not only that Mr. Ortiz has
always been Lukas’s primary caregiver but that Mr. Ortiz best understands what
Lukas is attempting to communicate through his different cries, grunts, and
motions. She also described Lukas’s deterioration during the period his father
was in detention. Friends of their family similarly described Mr. Ortiz’s unique
role in communicating with his son, calming him, and attending to his needs.
[9]
The Officer’s decision refers to considering Lukas’s
medical condition and the pediatrician’s advice that removing Mr. Ortiz would
have a detrimental effect upon Lukas. However, the Officer concluded that Lukas
will have the care of his mother and that he has status in Canada and is
eligible for and receiving care for his condition from a medical professional
such that, while removal of Mr. Ortiz may be difficult for Lukas, the Canadian
medical and social system will provide him with proper care.
[10]
The parties confirmed their agreement at the
hearing of this application that the standard of review, applicable to the Officer’s
consideration of the evidence and arguments submitted in support of the
deferral request, is reasonableness. As such, the Court should intervene only
if the Officer’s decision fails to evidence justification, transparency, and
intelligibility and falls outside the range of possible, acceptable outcomes. The
Applicant’s counsel nevertheless took the position that, given the compelling
evidence as to Mr. Ortiz’s role in Lukas’s care and upbringing, granting the
deferral request was really the only reasonable decision the Officer could have
made. I disagree with this assertion, as the Officer is afforded discretion
and, while the exercise of that discretion must fall within the reasonable range
and the parameters of that range may be influenced by the circumstances of the
particular case, it is nevertheless a range.
[11]
However, while I do not accept the Applicant’s
position that the Officer was obliged to grant the deferral request, I do agree
that the reasons given by the Officer do not demonstrate the required
transparency and intelligibility. While noting the psychiatrist’s opinion that
Mr. Ortiz’s removal would have a detrimental effect, the Officer fails to
engage with the evidence underlying that opinion or the arguments based
thereon. It is not clear how the Officer reached the conclusion that Lukas’s
status as a Canadian and the availability of medical care would address his circumstances
notwithstanding the removal of the individual who is his primary caregiver and
is best able to address his communication challenges.
[12]
In oral argument, the Respondent placed
considerable emphasis on the position that the Officer did not have the
authority to grant the requested deferral because of its potential length. The
Respondent submits that a removal officer’s discretion to defer removal is
limited in scope, intended to be short-term in duration, and restricted to
taking into account special considerations that represent some form of
detrimental harm caused by an impending removal. The Respondent notes that the
Mr. Ortiz’s H&C application had not been submitted by the time of the
deferral request. (Counsel advised at the hearing that it was submitted
approximately two weeks later on February 1, 2017.) Observing that an H&C application
can take 34 months, the Respondent argues that this duration falls outside the
parameters of what can be characterized as a short-term deferral.
[13]
While I accept the Respondent’s characterization
of the Officer’s discretion, I do not consider it to support the Respondent’s
position that the Officer in the case at hand would have been acting outside
the parameters of that discretion if the deferral request had been granted. I have
not been referred to any jurisprudence to the effect that there is a particular
outside limit on the duration of a deferral that an Officer has the discretion
to grant. A deferral until an H&C application has been decided is still
temporary in nature and, as the Applicant points out, there is clearly
jurisprudential support for an Officer’s authority to defer removal pending an
H&C decision (see e.g. Martinez v Canada (Minister of Citizenship and
Immigration), 2003 FC 1341). The imminence or distance of the decision may
be a relevant factor for consideration, but I find no basis to conclude that
the Officer has the authority to defer removal only in the case of imminent
decisions.
V.
Conclusion
[14]
It is therefore my decision to allow this
application for judicial review, such that the Applicant’s request for deferral
of his removal will be returned to another enforcement officer for re-consideration.
The parties raised no question for certification for appeal, and none is
stated.
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