Docket: IMM-1345-17
Citation:
2017 FC 979
Ottawa, Ontario, November 1, 2017
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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VADIM SCENIOV
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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]
Mr. Sceniov’s application for permanent residence
under the Spouse or Common-Law Partner in Canada Class was denied as his sponsor
was found to be in default of a previous sponsorship undertaking. He was
directed to report for removal from Canada in March 2017. His request for a deferral
was refused, and it is that decision that is now before the Court on judicial review.
[2]
Mr. Sceniov submits that the decision of the
Inland Enforcement Officer to refuse his deferral request was unreasonable as
the Officer: (1) misapprehended the circumstances relating to the status of his
permanent residence application; (2) undervalued the hardship removal would impose
on him and his family; and (3) failed to properly assess the best interests of
the children. The respondent submits that the Officer’s discretion to grant the
deferral request was limited, that the sponsorship application had been terminated
a year earlier, that the Officer considered the children’s short term interests
and that the hardship assessment was reasonable.
[3]
The application raises the following issue:
Was the Officer’s decision not to defer removal from Canada
unreasonable because the officer:
i.
Misapprehended the circumstances relating to the
status of the sponsorship application? or
ii.
Ignored or failed to properly assess evidence in
assessing hardship?
[4]
Having considered the tribunal record, and the
written and oral submissions of the parties I am unable to conclude that the
intervention of this Court is warranted. The Officer’s decision was reasonable
for the reasons that follow.
II.
Background
[5]
Mr. Sceniov is a citizen of Moldova. He arrived
in Canada in 2008 and initiated a refugee claim. He married his spouse in March
2011. In May 2012 he withdrew his refugee claim, choosing instead to pursue an
in-land spousal sponsorship application.
[6]
His spouse was approved as a sponsor in August
2012, and Mr. Sceniov received stage 1 approval to apply for permanent
residency.
[7]
In January 2016 the respondent sent a letter to
Mr. Sceniov’s spouse advising her that she may not be eligible to sponsor Mr.
Sceniov as there was information indicating she had defaulted on a previous
undertaking. The January 2016 letter advised that she had 30 days to make any
submissions and that her ineligibility may result in the application being
refused.
[8]
In February 2016 the respondent advised Mr.
Sceniov by letter that his application had been refused as he did not have a
valid sponsor. That letter was sent to the same address as the January 2016
letter but was returned to the respondent marked “moved/return
to sender address unknown.”
[9]
In March 2016 the respondent sent a third letter
addressed to Mr. Sceniov stating the spousal application had been transferred
from the respondent’s Vegreville office to the respondent’s Etobicoke office.
[10]
Mr. Sceniov’s representative subsequently submitted
an Access to Information and Privacy [ATIP] request concerning the sponsorship
application. The response, received in April 2016, included the February 2016
letter refusing the application.
[11]
Mr. Sceniov was notified in June 2016 that he
was eligible for a Pre-Removal Risk Assessment [PRRA] and he filed a PRRA
application the following month. A negative PRRA decision issued in December
2016, and was communicated to Mr. Sceniov in person on February 5, 2017. On
March 1, 2017 Mr. Sceniov was directed to report for removal on March 26, 2017.
On February 28, 2017 Mr. Sceniov submitted payment to address his wife’s
default on the previous sponsorship undertaking.
[12]
Mr. Sceniov requested his removal be deferred.
He submitted that confusion existed as to the status of his spousal sponsorship
application: correspondence subsequent to the February 2016 refusal
notification suggested the application was still active and time was required
to confirm the application’s status, or to allow the applicant to re-file if
the application had been terminated. The deferral request also identified issues
of family hardship that would result from removal.
[13]
In refusing the deferral request, the Officer was
not persuaded by submissions concerning confusion about whether the permanent
resident application had been terminated, noting that Mr. Sceniov was responsible
for providing the respondent with a current mailing address. In addressing
hardship the Officer noted it was beyond the authority of a deferral Officer to
perform an adjunct Humanitarian and Compassionate evaluation, that a deferral
of removal is intended to address temporary practical impediments to removal
and is not meant to be a long term reprieve.
[14]
The Officer considered the circumstances of the
children involved, addressed Mr. Sceniov’s contribution to the family and considered
the health challenges of his wife, her father and her grandmother. The Officer concluded that these grounds alone did not warrant
deferral, and dismissed the suggestion that Mr. Sceniov’s separation from his
family could become indefinite if he were not authorized to return to Canada as
speculative.
III.
Standard of Review
[15]
Deferral decisions are reviewed by this Court
against a standard of reasonableness (Baron v Canada (Public Safety and
Emergency Preparedness), 2009 FCA 81 at para 25 [Baron]). In
assessing the reasonableness of an enforcement Officer’s decision the Court is
required to consider whether the decision is justified, transparent and
intelligible and whether it falls within the range of possible acceptable
outcomes that are defensible in respect of the facts and the law (Dunsmuir v
New Brunswick, 2008 SCC 9 at para 47).
IV.
Analysis
[16]
The Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA] requires that removal orders be enforced as soon as possible
(IRPA s 48(2)). As a result a deferral Officer’s discretion to defer removal is
very limited (Baron at para 51).
A.
Did the Officer misapprehend the circumstances
relating to the status of the sponsorship application?
[17]
Mr. Sceniov submits that the March 2016 letter was
the last piece of correspondence in respect of the application and the
Officer’s decision incorrectly states that the February 2016 refusal letter was
the “final letter” sent. This erroneous factual
finding and the Officer’s failure to consider the confusion the March 2016
letter caused renders the decision unreasonable. I disagree.
[18]
The decision reflects that the Officer was aware
that the February 8, 2016 letter had been returned to the respondent and that the
March 22, 2016 letter had been sent. However the Officer notes that Mr. Sceniov
was responsible for keeping “mailing and residential
addresses (which I note are different) up to date with CBSA, IRCC and any other
institution.” It is in this context that the Officer refers to the February
8, 2016 letter refusing the sponsorship application as the final letter. This
statement is neither erroneous nor inconsistent with the facts and circumstances.
[19]
Mr. Sceniov relies on Gurshomov v Canada
(Public Safety and Emergency Preparedness), 2010 FC 1212 [Gurshomov]
to argue that confusion as to the status of the sponsorship is a relevant
consideration an enforcement Officer must address. While I do not disagree, in
this case the Officer reasonably concluded there was no confusion as to the
status of the application.
[20]
The facts in Gurshomov differ
significantly from those here. In Gusrshomov there was ample evidence of
confusion—experienced by both the applicant and the respondent—as to the status
of an H&C application. In addition the applicant in Gusrshomov
immediately initiated a new H&C application after learning that the initial
H&C had been dismissed over a year earlier.
[21]
In this case the Officer acknowledged the
submissions alleging numerous errors on the part of the respondent but concluded
that the refusal decision contained in the “final
letter” dated 8 February, 2016 had been communicated. While submissions
were made to the effect that the March 22, 2016 letter led to confusion, there
was ample information in the record to support the Officer’s conclusion that
this was not the case: (1) Mr. Sceniov’s wife was informed by letter dated
February 8, 2016 that she was ineligible to sponsor her husband and that a
final decision was to be communicated to him; (2) in April 2016 Mr. Sceniov’s
representative become aware of and was in possession of a copy of the refusal
letter; (3) Mr. Sceniov’s wife, in a letter advocating for the deferral of
removal justifies the deferral on the grounds that it will allow her “to submit my sponsorship application urgently.”; and (4)
Mr. Sceniov’s mother-in-law also refers to a “sponsorship
application my daughter… is going to submit urgently.” I am therefore
unable to conclude that the Officer misapprehended the circumstances relating
to the status of the sponsorship application.
B.
Did the Officer ignore or fail to properly
assess evidence of hardship?
[22]
It is argued that the Officer failed to address
the hardship that removal would cause Mr. Sceniov and his family, and ignored
the family’s financial situation, the poor health of other family members and
the best interests of the children [BIOC]. With respect to the children he
argues the circumstances are exceptional as two of the three children have
special needs and he is not only a caregiver but also the family’s breadwinner.
[23]
The assessment of a child’s best interests in
the deferral context differs from that which arises in the context of an
H&C application. In the deferral context an Officer is not required to
carry out a comprehensive BIOC analysis but must be alert, alive and sensitive
to the child’s short term best interests (Uthayakumar v Canada (Public
Safety and Emergency Preparedness) 2007 FC 998 at para 12; Pegito London
v Canada (Citizenship and Immigration), 2015 FC 942 at paras 16 and 17 [London]).
[24]
In this case the Officer acknowledged the
children’s circumstances, including the medical issues the two younger children
suffer from and their special needs. The Officer also acknowledged the role of
Mr. Sceniov in supporting the children financially, emotionally and physically.
The Officer acknowledged that Mr. Sceniov’s departure would impact the children
but also noted that the children would remain in the care of their mother and
would continue to have access to educational, medical and social services.
[25]
Mr. Sceniov argues that this analysis diminished
his role in the family and, relying on London, that the Officer failed
to acknowledge the absence of adequate provisions for the children’s care in
his absence. I am unpersuaded. The children’s circumstances were canvassed and
the Officer was alive and sensitive to the impact of removal on the children. Mr.
Sceniov’s role in caring for the children was considered, but unlike the
situation in London where the “deferral request
confirmed his responsibility as the primary caregiver to the three children”
(London at para 18), Mr. Sceniov was not the primary caregiver for the
children. Rather he is described by both his wife and his mother-in-law as an
important member of the family and as someone who helps with the children. In
fact the discussion of his role in assisting with the more elderly members of his
wife’s family is much more detailed than is the description of his role in
respect of the children. In indicating that the children would remain in the
care of their mother the Officer did, on the facts in this case, address
provisions for their care and adequately addressed their short term best
interests.
[26]
Similarly it was not unreasonable for the Officer
to conclude that the hardship of separation as identified in the deferral
application was an inherent consequence of the removal process and did not rise
to the level that would justify the deferral of his removal.
V.
Conclusion
[27]
The application is denied. The parties have not
proposed a question of general importance for certification and none arises.
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