Docket: IMM-2350-18
Citation: 2019 FC 548
Ottawa, Ontario, April 30, 2019
PRESENT: The Honourable Mr. Justice Boswell
| BETWEEN:
|
| XIA LI
|
| Applicant
|
| and
|
| THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
|
| Respondent
|
JUDGMENT AND REASONS
[1]
The Applicant, Xia Li, is a 30-year-old citizen of China who arrived in Canada in 2013 and claimed refugee protection based on her fear of persecution due to her Christian beliefs. After her second pre-removal risk assessment [PRRA] was refused, the Canada Border Services Agency [CBSA] served her with a Direction to Report for removal from Canada scheduled for May 23, 2018. Eight days before her scheduled removal, the Applicant submitted a request to CBSA to defer her removal.
[2]
An Inland Enforcement Officer at CBSA [the Officer] refused the Applicant’s request to defer her removal in a decision dated May 18, 2018. Following this refusal, the Applicant applied for leave and for judicial review of the Officer’s decision pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c-27 [IRPA]. She also sought and obtained from this Court on May 23, 2018, a stay of her removal from Canada pending final disposition of her application for leave and for judicial review. In this judicial review application, the Applicant requests an order not only quashing the Officer’s decision but also staying her removal from Canada for a time to be determined by the Court as it sees fit in the circumstances of this case.
I.
Background
[3]
In January 2014, the Refugee Protection Division [RPD] of the Immigration and Refugee Board granted the Applicant’s refugee claim sur place, finding that she was a genuine practitioner of Christianity in Canada and would face prosecution if returned to China because of her Canadian practice. However, the Minister appealed to the Refugee Appeal Division [RAD] and in June 2014 the RAD set aside the RPD’s decision. The Applicant sought leave for judicial review of the negative RAD decision, but this Court denied her request for leave in July 2015.
[4]
The Applicant gave birth to her son, Aaron Li, in April 2015. Aaron’s biological father does not parent or support him and is not in touch with the Applicant. Aaron is cared for by his mother, and when she attends work, by members of her church’s congregation.
[5]
In October 2015, the Applicant requested permanent residence from within Canada based on humanitarian and compassionate grounds [H&C]. This request was refused in December 2016. The Applicant applied for a PRRA in May 2016, but this was rejected in November 2016. The Minister consented to the Applicant’s H&C and PRRA applications being reconsidered in May 2017, but both of these reconsidered applications were refused in August 2017. Later in August, CBSA determined that the Applicant was removal ready and directed her to attend a pre-removal interview on September 19, 2017.
[6]
In 2017 the Applicant met her current husband, Lei Li, a Canadian citizen, and they married on January 29, 2018. A few days before the marriage, the Applicant discovered she was pregnant and three days later it was determined that she had miscarried.
[7]
On March 19, 2018, the Applicant’s husband submitted a spousal sponsorship application to sponsor the Applicant as a permanent resident. A few days after making this application, a psychologist diagnosed the Applicant with major depressive disorder, single episodic severe, with anxious distress. A month or so later, CBSA served the Applicant with a Direction to Report for removal. CBSA denied her request to defer her removal in a decision dated May 18, 2018. The present application for judicial review impugns the CBSA’s decision.
II.
The Officer’s Decision
[8]
The Officer noted at the outset of the decision that an enforcement officer has little discretion when granting a deferral, and if a deferral is granted it must not impede the enforcement of a removal order as soon as possible.
[9]
The Officer acknowledged the Applicant’s request to defer her removal based on her outstanding spousal sponsorship application. The Officer noted that this application had not been submitted until shortly before the Applicant was served with the Direction to Report for removal, and that removal arrangements began in September 2017. In the Officer’s view, the sponsorship application had not been submitted in a timely manner, and there was no evidence showing that a decision on the application was imminent. The Officer added that there was no evidence to show the Applicant could not be sponsored from outside of Canada.
[10]
The Officer referenced a Citizenship and Immigration policy that, while some individuals in the spousal sponsorship process receive the benefit of a temporary administrative deferral of removal, these are only individuals who apply before they are deemed to be removal ready. In the Applicant’s case, the Officer noted that she had been deemed removal ready at the end of August 2017.
[11]
The Officer further noted that the Applicant’s risks had been assessed by the RPD, the RAD and in the PRRA process, and that she had benefited from a full H&C application. The Officer then considered the best interests of the Applicant’s child, stating that:
I have considered the best interest of the child involved…. I also considered the letters and photos submitted to this office. I’m alert, alive and sensitive to the child’s situation. I note that the father of the child abandoned Mrs. Xia Li and her son and the child has a stepfather now, who is a father figure. I also considered that Mrs. Xia Li has difficulties raising her child and relies on members of her church to care for the child. …. Insufficient evidence was submitted that Aaron Li will have to renounce Canadian citizenship or that he will not receive [a] Chinese Household Register when he comes to China. Moreover, I note that Aaron Li will be travelling with his mother who knows the language, culture and customs in China. I also note that the child will have the love and support of his mother which will attenuate the period of adjustments for him. Furthermore, I note that Aaron is still very young and therefore likely to adjust to his new circumstances more easily and naturally. Based on all the above, I don’t believe the counsel submitted sufficient evidence to warrant a deferral of removal from Canada.
[12]
The Officer also considered issues related to Chinese policies about sterilization of single mothers, payments of social compensation, and violating family planning policies, noting that “many of the submitted statements are speculative in nature”
and that “some of the submitted articles are dated and do not represent the current situation in China”
. The Officer noted there was no evidence the Applicant would be separated from her husband indefinitely.
[13]
The Officer then considered the Applicant’s mental health, stating that:
While I acknowledge that Mrs. Xia Li may have some psychological issues and she was diagnosed with depression and anxiety and she would like to stay in Canada, insufficient evidence was submitted … to show that her condition would preclude her from travelling by air. …Dr. Pilowsky states that “Although she continues to experience suicidal ideation, she maintained that the love of her son deters her from acting on these thoughts”. This shows me that while having some psychological issues, Mrs. Xia Li is capable of functioning independently and caring for her child in her circumstances. Insufficient evidence was submitted to … to show that Mrs. Xia Li would not be able to care for her child in China or that she won’t be able to deal with her psychological issues in China.
[14]
The Officer concluded by saying there was insufficient evidence to show the Applicant would suffer undeserved or disproportionate hardship if returned to China.
III.
Preliminary Issues
[15]
The Applicant has included documentation which was not before the Officer and is not in the certified tribunal record [CTR]; namely, a Response to Information Request from July 2017 about the treatment of “illegal”
or “black”
children born outside China’s family planning policy. I agree with the Respondent that this article should not be considered in reviewing the Officer’s decision and I have disregarded it in rendering my decision.
[16]
There are also some deficiencies in the Applicant’s Record, such as an incomplete copy of the decision under review, mislabelled exhibits, no copy of the deferral request, and incomplete copies of the PRRA decisions. These deficiencies, however, are minor and do not impair the Court’s ability to review the Officer’s decision because the CTR is complete and, as such, there is no procedural unfairness to the Respondent.
IV.
Analysis
[17]
The primary issue which requires the Court’s attention is whether the Officer’s decision not to defer the Applicant’s removal was reasonable.
[18]
An enforcement officer’s decision whether to defer an individual’s removal from Canada is afforded deference and is reviewed on the standard of reasonableness (Baron v Canada (Public Safety and Emergency Preparedness), 2009 FCA 81 at para 25 [Baron]; Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at para 43 [Lewis]).
[19]
The reasonableness standard tasks the Court with reviewing an administrative decision for “the existence of justification, transparency and intelligibility within the decision-making process”
and determining “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). Those criteria are met if “the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes”
(Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16).
A.
The Scope of a Removal Officer’s Discretion
[20]
An enforcement officer’s discretion to defer removal is narrow. As stated by the Federal Court of Appeal in Baron: “It is trite law that an enforcement officer’s discretion to defer removal is limited”
(para 49). In Baron, Justice Nadon cited Wang v Canada (Minister of Citizenship and Immigration), [2001] 3 FCR 682 at para 48 [Wang], where it was said 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 in circumstances and where deferral might result in the order becoming inoperative”
(see also Lewis at para 54).
(1)
Pending H&C Application
[21]
An enforcement officer has a limited ability to address H&C grounds raised in the context of a request for deferral of a removal order. Both this Court and the Federal Court of Appeal have noted that, “absent special considerations”
an outstanding application for permanent residence on H&C grounds is not a bar to execution of a valid removal order unless there is a threat to personal safety (Baron at para 50; Wang at para 45; Lewis at paras 56 and 57; Arrechavala de Roman v Canada (Public Safety and Emergency Preparedness), 2013 FC 478 at para 25; and Simoes v Canada (Minister of Citizenship and Immigration), 187 FTR 219 at para 12 [Simoes]).
[22]
In Canada (Public Safety and Emergency Preparedness) v Shpati, 2011 FCA 286 at para 45, 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 [Munar], the Court observed that enforcement officers are not required to undertake a full substantive review of the humanitarian circumstances considered as part of an H&C assessment because: “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”
.
[23]
More recently, in Newman v Canada (Public Safety and Emergency Preparedness), 2016 FC 888 [Newman], the Court stated that:
[19] … 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 [citations omitted].
[24]
In view of the foregoing, it can be said that a pending H&C application may justify a deferral of removal only if there are either “special considerations”
or a threat to personal safety. As noted by the Court in Newman, “special considerations”
are broader than a threat to personal safety, but do not “include the strength or compelling nature of the underlying H&C application”
(at para 29); “special considerations must therefore be looked at bearing in mind the limited discretion granted to enforcement officers on requests for deferral of removal. …they must be other than simply the basis for the H&C claim, or else all H&C applications would have ‘special considerations’”
(at para 30).
(2)
Best Interests of a Child
[25]
The extent to which an enforcement officer must address the best interests of a child [BIOC] is limited. In Baron, Justice Nadon stated that: “an enforcement officer has no obligation to substantially review the children’s best interest before executing a removal order”
(para 57). In Munar, Justice de Montigny found that the “obligation of a removal officer to consider the interests of Canadian-born children must rest at the lower end of the spectrum”
(para 38). In contrast to an immigration officer who must weigh the long-term BIOC in the context of an H&C application, an enforcement officer has to consider only the short-term BIOC such as whether “to defer removal until a child has terminated his or her school year, if he or she is going with his or her parent”
(para 40).
[26]
In Canada (Minister of Citizenship and Immigration) v Varga, 2006 FCA 394 at para 16, Justice Evans stated: “Within 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)”
.
[27]
More recently, in Kampemana v Canada (Public Safety and Emergency Preparedness), 2015 FC 1060 at para 34, [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 Lewis the Court of Appeal concluded that: “under the existing case law, enforcement officers may look at the short-term best interests of the children whose parent(s) are being removed from Canada, but cannot engage in a full-blown H&C analysis of such children’s long-term best interests”
(para 61).
[28]
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 (Joarder v Canada (Minister of Citizenship and Immigration), 2006 FC 230 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).
(3)
Pending Spousal Sponsorship Application
[29]
A removals officer cannot defer removal simply because there is a pending spousal sponsorship application. As the Court in Forde v Canada (Public Safety and Emergency Preparedness), 2018 FC 1029, stated:
[38] … in Lewis … the Court observed that “it is only where a timely H&C application is still pending due to a backlog in processing that a deferral may be warranted” (emphasis added): Lewis, above, at para 81; Baron, above, at para 49. The Court in Lewis explained that were it otherwise, a person subject to a removal order could forestall his or her removal from Canada by filing an H&C application shortly before a scheduled removal, thereby creating “a large loophole” in the IRPA: Lewis, above, at para 80.
[39] The same logic would apply to pending spousal sponsorship applications.
[40] To permit a person to avoid removal from Canada by filing a spousal sponsorship or an H&C application shortly before the scheduled removal, or indeed well after being notified that he or she is subject to removal, would be contrary to the principles articulated in Lewis and the jurisprudence cited therein. Pursuant to that case law, a removals officer is not entitled to defer removal where a decision on an outstanding application is unlikely to be imminent: [citations omitted]. Moreover, a removals officer does not have the discretion to defer removal to an indeterminate date: [citations omitted]. Rather, the “special considerations” that may warrant deferral must be associated with the impending or imminent removal being challenged and cannot be more than temporary in nature: [citations omitted]. In this context, the word “temporary” cannot be construed as including a deferral of indeterminate or lengthy duration.
B.
Was the Officer’s Decision Reasonable?
[30]
In this case, it was reasonable for the Officer not to defer the Applicant’s removal simply because there was a pending spousal sponsorship application. Immigration, Refugees and Citizenship Canada received the application on March 19, 2018. CBSA served the Applicant with a Direction to Report some seven weeks later on May 2, 2018. The Officer noted that removal arrangements had started in September 2017 and there was no evidence showing that a decision on the sponsorship application was imminent. In these circumstances, the Officer reasonably determined not to defer removal on this basis.
[31]
It was unreasonable, however, for the Officer not to assess and engage with the fact that removal itself would trigger or cause further psychological harm to the Applicant. The Officer failed to consider the implications of this harm faced by the Applicant.
[32]
The psychologist found the Applicant had been rendered “psychologically fragile”
. She opined in her report dated March 23, 2018, that if the Applicant were returned to China:
…her psychological condition would deteriorate. Forcing her to confront her homeland… would be devastating …[and] the absence of support and/or protection from her family members would serve to aggravate her deterioration.
…Ms. Li’s psychological conditions …highlight the potential for psychological deterioration in the event that she is ordered to return to China.
…if Ms. Li were granted permission to remain in Canada, … she will be able to finally move forward with her recovery….
[33]
In my view, the Officer misconstrued the evidence concerning the Applicant’s mental health. Although the Officer acknowledged that the Applicant “may have some psychological issues”
, the Officer nonetheless stated that “insufficient evidence”
had been submitted “to show that her condition would preclude her from travelling by air”
. The psychological evidence did not speak to the Applicant’s ability to travel by air but, rather, to the harm she would face if not granted a deferral of removal. The Officer’s determination in this regard is not reasonable because it evinces a misapprehension of the fact that removal itself would trigger or cause further psychological harm to the Applicant.
[34]
The Officer’s unreasonable assessment of the psychological evidence is such that the Applicant’s application for judicial review will be allowed.
C.
Should there be a Directed Verdict?
[35]
In addition to an order quashing the Officer’s decision, the Applicant has requested an order staying her removal from Canada for a time to be determined by the Court as it sees fit in the circumstances of this case. This latter request is in the nature of one for a “directed verdict”
.
[36]
The authority of the Court to issue what amounts to a directed decision arises from the language of paragraph 18.1(3) (b) of the Federal Courts Act, RSC 1985, c F-7, which provides that the Court may on judicial review “…quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate… a decision, order, act or proceeding of a federal board, commission or other tribunal”
[emphasis added].
[37]
It is generally recognized that the Court should exercise considerable restraint in issuing directions that amount to a directed decision because it gives rise to concerns about the Court accomplishing indirectly what it is not authorized to do directly - namely, substituting its own decision for that of the administrative decision-maker by compelling the decision-maker to reach a specific conclusion (Turanskaya v Canada (Minister of Citizenship and Immigration), [1995] FCJ No 1776 at para 6 (affirmed [1997] FCJ No 254).
[38]
Although directions the Court may issue when setting aside a tribunal’s decision can include directions in the nature of a directed verdict, “this is an exceptional power that should be exercised only in the clearest of circumstances…. Such will rarely be the case when the issue in dispute is essentially factual in nature”
Rafuse v Canada (Pension Appeals Board), 2002 FCA 31 at para 14.
[39]
More recently, the Federal Court of Appeal stated in Canada (Citizenship and Immigration) v Yansané, 2017 FCA 48, that:
[18] … We must never lose sight of the fact that such directions or instructions depart from the logic of a judicial review, and that their abusive or unjustified use would go against Parliament’s desire to give specialized administrative organizations the responsibility for ruling on questions that often require expertise that common law panels are lacking. This is especially the case for eligibility and weighing of evidence, which are central to the mandate of administrative decision-makers.
[40]
The Supreme Court of Canada observed in Giguère v Chambre des notaires du Québec, 2004 SCC 1, that:
66 A court of law may not substitute its decision for that of an administrative decision-maker lightly or arbitrarily. It must have serious grounds for doing so. A court of law may render a decision on the merits if returning the case to the administrative tribunal would be pointless: [citations omitted] … Such is also the case when, once an illegality has been corrected, the administrative decision - maker’s jurisdiction has no foundation in law: … The courts may also intervene in cases where, in light of the circumstances and the evidence in the record, only one interpretation or solution is possible, that is, where any other interpretation or solution would be unreasonable: … It is also accepted that a case may not be sent back to the competent authority if it is no longer fit to act, such as in cases where there is a reasonable apprehension of bias: [citations omitted].
[41]
Despite these observations, it is firmly established in the jurisprudence that there are occasions when the Court may issue directions amounting to a directed verdict. For example, the Federal Court of Appeal remarked in Turanskaya v Canada (Minister of Citizenship and Immigration), [1997] FCJ No 254, that:
6 The “directions” which the Trial Division is authorized to give under paragraph 18.1(3) (b) will vary with the circumstances of a particular case. If, for example, issues of fact remain to be resolved it would be appropriate for the Trial Division to refer a matter back for a new hearing before the same or differently constituted panel depending on the circumstances….”
[42]
In Ali v Canada (Minister of Employment and Immigration), [1994] 3 FC 73 [Ali], Justice Reed noted that the Federal Court of Appeal in Punniamoorthy v Canada (Minister of Employment & Immigration, [1994] FCJ No 104, asked itself various questions when addressing a request to render a judgment with directions:
19 The type of questions which the Court of Appeal asked itself were: Is the evidence on the record so clearly conclusive that the only possible conclusion is that the claimant is a Convention refugee? Is the sole issue to be decided a pure question of law which will be dispositive of the case? Is the legal issue based on uncontroverted evidence and accepted facts? Is there a factual issue which involves conflicting evidence which is central to the claim?
[43]
In Xie v Canada (Minister of Employment and Immigration), 75 FTR 125 [Xie], Justice Rothstein opined that:
17 … A reading of subsection 18.1(3) shows that there is nothing in the subsection that indicates that the Court has the jurisdiction to substitute its opinion for that of the tribunal whose decision is under judicial review, and make the decision that the tribunal should have made. If Parliament had intended the Court to substitute its decision for that of the board, commission or tribunal whose decision is under judicial review, it could easily have put words in the Act to that effect. … As such words do not appear in the Act in respect of judicial reviews to the Federal Court, I am of the view that this Court does not have jurisdiction to substitute its decision for that of the tribunal in a judicial review.
18 While the Court does have jurisdiction to refer a matter back for redetermination in accordance with such directions as it considers appropriate, it seems to me that the Court should only issue directions to a tribunal in the nature of a directed verdict, where the case is straightforward and the decision of the Court on the judicial review would be dispositive of the matter before the tribunal. While such cases undoubtedly will arise, as a general rule, the Court should leave to tribunals, with their expertise in the matters over which they have jurisdiction, the right to make decisions on the merits based on the evidence before them.
[44]
Although Ali and Xie are not contradictory, there is a difference in emphasis between the two cases: Ali says a directed decision is appropriate where (in the Court’s view) the evidence on the record is so clearly conclusive that only one result or outcome is possible; whereas Xie suggests that, because it is the tribunal that has statutory authority to make the decision, the Court should only issue directions to a tribunal in the nature of a directed verdict where the case is straightforward and the decision of the Court on the judicial review would be dispositive of the matter before the tribunal.
[45]
This Court has been reluctant to issue directed decisions where factual matters are central to the decision and there is ambiguity in the evidence (Singh v Canada (Citizenship and Immigration), 2010 FC 757 at para 53; Xin v Canada (Citizenship and Immigration), 2007 FC 1339 at para 6; McIlvenna v Bank of Nova Scotia (Scotiabank), 2017 FC 699 at para 62; and Asslafi v Canada (Citizenship and Immigration), 2018 FC 586 at para 27).
[46]
In Canada (Citizenship and Immigration) v Tennant, 2018 FCA 132 [Tennant], Justice Stratas dismissed a motion by the respondent to remove a notice of appeal from the court file and close the court file where no question had been certified under paragraph 22.2(d) of the Citizenship Act, RSC 1985, c C-29. In so doing, he called into question the authority to issue a directed verdict, noting that:
[28] … the reasons of the Federal Court speak of something called a “directed verdict”—a remedy not listed under section 18.1 of the Federal Courts Act. Perhaps what was meant was mandamus, which is a listed remedy: [citations omitted]. But mandamus—the requiring of an administrative decision-maker to take positive action—is granted only where certain relatively rarely occurring prerequisites are met: [citations omitted]. And under mandamus, it is the Minister that performs the required administrative action, not the Court.
[29] These issues and all other issues said to affect the validity of the Federal Court’s judgment will be for the hearing panel to decide.
[47]
The appeal in Tennant was heard on February 13, 2019, but a decision in the matter remains pending.
[48]
Although directed verdicts have been granted in various immigration matters - including: a citizenship application (Fisher-Tennant v Canada (Citizenship and Immigration), 2018 FC 151 at paras 34-35), an H&C application (Kargbo v Canada (Citizenship and Immigration), 2011 FC 469 at paras 24 to 27), and a temporary resident visa application (Rudder v Canada (Citizenship and Immigration), 2009 FC 689 at para 37) - this is not a case to issue a directed verdict.
[49]
The Applicant’s request for an order staying her removal from Canada for a time to be determined by the Court does not involve exceptional or compelling circumstances. This matter is not one in which the uncontested evidence on the record is so conclusive that there is only one possible conclusion or outcome. Returning this matter back to a different inland enforcement officer would not be pointless because a different officer may assess the Applicant’s request to defer her removal differently than the Officer did in this case; the request could be granted upon redetermination. I decline, therefore, to issue an order staying the Applicant’s removal from Canada.
V.
Conclusion
[50]
The Applicant’s application for judicial review is allowed. The Officer unreasonably assessed the psychological evidence that removal itself would trigger or cause further psychological harm to the Applicant.
[51]
Neither party raised a serious question of general importance; so, no such question is certified.
[52]
The correct Respondent to this application for judicial review is the Minister of Public Safety and Emergency Preparedness by virtue of subsection 4(2) of the IRPA. In view of the Court’s Order dated May 23, 2018, the Court reiterates that the style of cause is amended to name the Minister of Public Safety and Emergency Preparedness in lieu of the Minister of Citizenship and Immigration.
Email this Content