Date: 20061018
Docket: IMM-4798-05
Citation: 2006
FC 1240
Ottawa, Ontario, October 18, 2006
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
DUNG
TRAN
Applicant
and
THE MINISTER OF PUBLIC SAFETY
and EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Dung Tran is a citizen of Vietnam and has been returned to that country. An expulsions
officer refused to defer his removal upon request. Mr. Tran seeks judicial
review of that decision.
[2]
Mr. Tran
has a history of serious criminality, on the basis of which he was deemed
inadmissible to Canada. He was ordered removed in
1994. Mr. Tran has made a claim for refugee status and four applications for
landing on humanitarian and compassionate (H&C) grounds, all of which were
denied. A fifth H&C application remains pending. A pre-removal risk
assessment was also negative. Leave for judicial review of that assessment was
denied. Mr. Tran’s removal was then scheduled for March 22, 2005. He sought a
stay of execution of the removal order which was denied on March 21, 2005 by
Justice Yves de Montigny. Mr. Tran failed to appear for removal forfeiting
bonds in the process. A warrant was issued for his arrest.
[3]
Following
his arrest on the warrant, Mr. Tran’s removal was rescheduled for August 15,
2005. While in detention he retained the services of his present counsel who
submitted a request for deferral on July 25, 2005. The expulsions officer
handling the file refused the request on July 29, 2005. On August 12, 2005, a
motion for a stay pending determination of the outstanding H&C application
was dismissed by Justice Yvon Pinard. The applicant was removed on August 15,
2005.
[4]
The
expulsions officer’s July 29, 2005 decision was set out in the standard
refusal letter citing s.48 of the Immigration and Refugee Protection Act, S.C. 2001 C. 27 (IRPA). The letter concludes:
Having considered your request, I
do not feel that a deferral of the execution of the removal order is
appropriate in the circumstances of this case.
[5]
No request
was made of the officer to provide reasons for the decision and the certified
record contains no notes to file to further explain the decision. The officer’s
affidavit explaining her decision was filed by the respondent on the second
stay motion and was part of the record in these proceedings.
PRELIMINARY MATTERS
[6]
As a
preliminary matter, the respondent objected to the filing of an affidavit from
the applicant’s wife, Khanh Vu Tran, sworn August 14, 2006, in so far as it recounted
events that
occurred after
the applicant’s removal. In the course of oral argument, counsel for the
applicant conceded that the impugned content of the affidavit was not properly
admissible within the recognized exceptions to the principle that judicial review of a decision is to be conducted on
the basis of the material that was before the decision maker when it made its
decision: Ontario Assn. of Architects v. Assn. of Architectural
Technologists of Ontario, [2003] 1 F.C. 331, 2002 FCA 218 at para.30, leave
to appeal to S.C.C. refused,
[2002]
S.C.C.A. No. 316.
Accordingly, those portions of the affidavit were given no further
consideration.
[7]
As a
further preliminary matter, the respondent submits that Mr. Tran’s affidavit
sworn August 5, 2006 prior to his removal and filed as part of the application
record has been improperly altered in that the applicant’s spouse and children
were added to the style of cause. In the course of oral argument, counsel for
the applicant advised the Court that this was an error on his part. While
improper, it was not material to the outcome of these proceedings.
ISSUES
[8]
The issues
in this proceeding as they appear to the Court are as follows:
1.
Is this case moot and if so, should the Court exercise its discretion to
consider the merits?
2.
Did the officer deny the applicant procedural fairness by failing to
provide adequate reasons?
3.
Did the officer deny the applicant procedural fairness by fettering her
discretion?
4.
Did the officer err in failing to consider relevant factors such as the
best interests of the child, and the pending H&C claim?
1. Mootness
[9]
On its
face, this application is moot. Mr. Tran has been declared inadmissible and
removed from Canada. The sole authority under
which he could return to this country were the Court to conclude that the
expulsions officer erred in refusing to defer removal appears to be that set
out in s.52 (1) of IRPA which requires authorization by an officer “or in other
prescribed circumstances”. There is no indication that Mr. Tran would be
authorized to return or that there are any prescribed circumstances which might
allow that. Without deciding the question as it was not argued before me, it is
doubtful that the Court has the jurisdiction to direct that this be done in the
circumstances of the present case.
[10]
My
colleague Justice Luc Martineau has recently addressed this question in Figurado
v. Canada (Solicitor General), 2005 FC 347, [2005] F.C.J. No.
458 at paras. 26-27 (QL) [Figurado]. He found, in the context of the judicial review of a
pre-removal risk assessment, that the Court's power to order the return
of an applicant to Canada is expressly limited by s.52(1) of the IRPA.
[11]
While s.52(2) of the IRPA prescribes that the return of a foreign
national at the expense of the Minister is warranted in the case where a
removal order has been subsequently set aside in a judicial review, it does not
apply in the present case.
[12]
The validity of the removal order is not in issue in these
proceedings. Mr. Tran sought deferral pending the outcome of his most recent
H&C application. That application seeks an exemption under s.25 (1)
of the IRPA from the operation of the statute stemming from the finding of
criminal inadmissibility. It does not call into question the validity of the
order. In any event, it was not within the limited scope of the expulsions
officer’s discretion to review the validity of the order.
[13]
The
parties did not come to court prepared to argue the question of mootness as it
was not raised as an issue in their written submissions. As set out by the
Supreme Court in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, [1989]
S.C.J. No. 14 (QL), the Court retains discretion to consider the merits of a
case that fails to meet the “live controversy” test when the circumstances
suggest that the mootness doctrine should not be enforced. In this instance,
the adversarial relationship between the parties remained alive throughout the
hearing, and deciding the merits will have no adverse impact on the use of
judicial resources. As a result, I will exercise my discretion to decide the
merits.
2. Adequacy of
the reasons
[14]
The applicant submits, in essence, that the
officer failed to provide adequate reasons by providing no reasons at all. He
points to the lack of any “notes to file” in the certified record and to the
brevity of the decision letter.
This issue requires a determination of the
content of the duty of fairness that the officer owed the applicant. The
appropriate standard of review of such a determination is correctness: Jang v. Canada (Minister
of Citizenship and Immigration), 2004 FC 486, [2004] F.C.J. No. 600
at para. 9 (QL). The
content of the duty of fairness will always vary depending on the facts, and
must be determined on the circumstances of each case: Ha v.
Canada (Minister
of Citizenship and Immigration), 2004 FCA 49,
[2004] F.C.J. No. 174 at paras. 40-41 (QL).
[15]
If the applicant or his counsel had regarded the
decision-letter as an inadequate explanation for the refusal to defer, a
request should have been made for an explanation. Counsel
acknowledged at the hearing that no request for reasons was made. The
duty of fairness normally requires reasons to be given on the request of the
person to whom the duty is owed and, in the absence of such a request, there
will be no breach of the duty of fairness: Liang v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J.
No.1301 at para.31 (QL) [Liang].
[16]
In Boniowski v. Canada (Minister of Citizenship and
Immigration), 2004 FC 1161, [2004] F.C.J. No. 1397 (QL), I expressed the
view that, given the limited purpose of a removals officer’s function
under s.48 in the statutory scheme, the content of the duty of fairness was
minimal. While it was preferable that notes be kept, the reasons requirement
was fulfilled in a decision letter where the officer indicated that she had
received and reviewed the applicant’s submissions, and her decision was not to
defer removal.
[17]
The function of reasons is to allow an individual
adversely affected by an administrative tribunal’s decision to know the
underlying rationale for the decision: Liang v. Canada
(Minister of Citizenship and Immigration), 2003 FC 1501, [2003] F.C.J. No. 1904 at para. 42 (QL). In the
particular circumstances of this case, the applicant could not have been under
any misapprehension as to the reasons why his request for deferral was being
refused.
3. Procedural
Fairness: fettering of discretion
[18]
The applicant argues that the
officer fettered her discretion by relying on the decision of Justice de Montigny
on the first stay motion with respect to his finding that irreparable harm had
not been established. This submission is based on a statement in the officer’s
affidavit to the effect that there had been no changes since the last time the
matter was set for her to arrange the applicant’s departure. The applicant
submits that the removal officer, therefore, fettered her discretion by
considering that the matter had already been predetermined and ignored new
evidence before her. The applicant submits that the separation of the family
should have been freshly considered, in addition to the health of one of the
applicant’s children for whom the applicant provided on-going support, and the
financial hardship the family would suffer upon separation.
[19]
The
officer’s discretion is limited to considering whether removal is “reasonably
practicable” in the circumstances. Even a limited discretion may be fettered, giving
rise to a breach of procedural fairness, if the officer considers herself bound
to reach a certain conclusion. There is nothing however in the officer’s
affidavit to support such a finding. She
clearly asserts that she came to her own conclusion after considering the request
before her. Her referral to her earlier considerations is reasonable in the
circumstances in light of the fact that she is the same officer that made them.
Further she references both the fact that the circumstances are not different,
and that they also do not justify a deferral in any event.
4. Consideration of relevant factors
[20]
The applicant submits that the
officer should have considered the effects of separation on the applicant’s
family, the health of one child who is developmentally delayed, and the
financial hardship that separation would impose. The applicant asserts that the
officer erred in not considering these factors, particularly in light of
Canada’s international obligations, notably the Convention on the Rights of the
Child, as acknowledged by subsection 3(3)(f) of the IRPA. He cites Martinez
v. Canada (Minister of Citizenship and Immigration), 2003 FC 1341, [2003] F.C.J. No. 1695 (QL) [Martinez] and Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 in support of this contention.
[21]
The applicant further submits that a pending H&C application
is an accepted reason to defer removal. The applicant cites Martinez and
Simoes v. Canada (Minister of Citizenship and Immigration), [2000]
F.C.J. No. 936 (T.D.) (QL) [Simoes] for this proposition. The applicant
highlights that in the present case an H&C application had been filed in
2004, and had not yet been resolved when the officer made her decision.
[22]
I note that the Court in Martinez
at para. 12 recognized that a
removals officer is not required to conduct a full scale humanitarian and
compassionate review and that, in most circumstances, a pending H&C application
will not justify the deferral of a removal. Decisions since Martinez
have also clarified that
international treaties have an interpretive role, however subsection 3(3) (f) of
the IRPA does not domestically incorporate these international obligations: Munar v. Canada (Minister
of Citizenship and Immigration), 2005 FC 1180, [2005] F.C.J. No. 1448 at paras. 27-28 (QL) [Munar].
[23]
Justice Nadon observed in Simoes that Baker
did not require that an expulsions officer conduct a substantive review of
children’s best interests. That was the mandate of the H&C officer. Justice
Nadon further noted that the scope of the
discretion that an expulsions officer may exercise is very limited, and in any
case, is restricted to when a removal order will be executed. In deciding when
it is "reasonably practicable" for a removal order to be executed, a
removal officer may consider various factors such as illness, other impediments
to traveling, and pending H&C applications that were brought on a timely
basis but have yet to be resolved due to backlogs in the system. No one factor
however is determinative.
[24]
In Boniowski, above, I expressed the view at paragraph 20
that:
…an enforcement officer retains a flexible discretion and may take
into account a variety of factors with regards to the timing of removal,
including any problems associated with the removal of a child with their
parents, or whether provisions have been made for leaving a child in the care
of others in Canada when parents are to be removed. However, the purpose of
the legislation is not to provide for a substantive review by removals officers
of the humanitarian circumstances that are to be considered as part of an
applicant's H&C application. [Emphasis added].
[25]
The
factors described by the applicant, namely the effects of separation on the applicant’s family, the health of one
child who is developmentally delayed, and the financial hardship that
separation would impose, fall within the unfortunate but common consequences of
deportation. They do not meet the narrow scope outlined above regarding what
the officer may consider within the scope of his or her discretion.
[26]
In this
instance, the applicant has failed to establish that the officer’s decision was
patently unreasonable. The application is dismissed. No serious questions of
general importance were proposed and none will be certified.
JUDGMENT
IT IS THE JUDGMENT OF THIS COURT that the application is dismissed.
No questions are certified.
“Richard
G. Mosley”
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