Date: 20050906
Docket: IMM-7071-04
Citation: 2005 FC 1210
Ottawa, Ontario, Tuesday, this 6th day of September 2005
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
SEOKUMARI SAMAROO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSONJ.
[1] Ms. Samaroo is a citizen of Guyana, who arrived in Canada as a visitor on September 19, 1997. Her visitor status expired on September 19, 1998 (after one extension) and since then she has remained in Canada without lawful status. A removal order was issued against her and, prior to her removal from Canada, Ms. Samaroo was notified that she could apply for a Pre-Removal Risk Assessment ("PRRA"). She did so, but her PRRA application was received after the expiration of the deadline. As a result, Ms. Samaroo was not entitled to a statutory stay of removal while her PRRA application was considered.
[2] On August 11, 2004, Ms. Samaroo, accompanied by a consultant, went to an interview with an Expulsion Officer ("officer") of the Canadian Border Services Agency. Ms. Samaroo was told to report for removal to Guyana on August 14, 2004. Ms. Samaroo then retained a lawyer, who sent a letter dated August 11, 2004, requesting that the officer defer her removal so as to allow an outstanding humanitarian and compassionate application and the outstanding PRRA application to be determined. That request was denied. Ms. Samaroo brings this application for judicial review of the decision refusing to defer her removal.
[3] Ms. Samaroo has remained in Canada since August 14, 2004 pursuant to a stay of removal issued by a judge of this Court.
[4] There are no notes on file or other form of reasons given by the officer for the refusal. The officer has sworn in an affidavit filed in this proceeding that:
By letter dated August 11, 2004, Applicant's counsel requested deferral of removal from Canada. However, the Applicant had not provided an authority to disclose information form and as such I was unable to consider the request due [to] restrictions placed on me by the Privacy Act.
[5] The purpose of the Privacy Act, R.S.C 1985, c. P-21 is stated in section 2, and it is to protect the privacy of individuals with respect to personal information about themselves held by a government institution, and to provide individuals with a right of access to that information. The Privacy Act authorizes the use of personal information under the control of a government institution for the purpose for which it was obtained, even without the consent of the individual to whom the information relates. (See subsection 7(a) of the legislation.)
[6] The letter which sought the deferral of removal did not seek disclosure of any personal information concerning Ms. Samaroo. Rather, the letter provided information to the officer for the purpose of allowing the officer to consider whether to defer removal. In that circumstance, I fail to see how the Privacy Act restricted the officer from considering the request for deferral. Assuming, without deciding, that the officer's ultimate decision whether to defer removal would fall within the definition of "personal information" found in the Privacy Act, the officer still would not have been prevented from making the decision, and then communicating it to Ms. Samaroo personally. The officer could also have disclosed it to Ms. Samaroo's counsel if she had, by that point, submitted the required form authorizing the release.
[7] By relying upon the Privacy Act as the ground for refusing to consider the request for deferral, the officer interpreted the Privacy Act incorrectly and based the decision on an irrelevant consideration. On any standard of review, such an error warrants setting the decision aside.
[8] Before parting with this application, I note that, pursuant to section 12 of the Immigration and Refugee Protection Regulations, SOR/2002-227 ("Regulations"), the officer might have been entitled to refuse the application because Ms. Samaroo had failed to perfect it by providing the information required in paragraphs 10(2)(c.1) and (c.2) of the Regulations. However, that is not the basis upon which the officer has sworn she made her decision.
[9] It follows that the application for judicial review will be allowed, and the decision of the officer not to defer removal will be set aside. I see no purpose in remitting the matter for redetermination because the direction to report for removal has been overtaken by events. If this poses any difficulty, counsel may correspond with the Registry of the Court with respect to any necessary variation of this order.
[10] Counsel posed no question for certification and I agree that no question arises on this record.
[11] By the consent of the parties, the style of cause is amended as set out in the order which follows.
ORDER
[12] THIS COURT ORDERS THAT:
1. The decision of the Expulsion Officer dated August 12, 2004 is hereby set aside.
2. The style of cause is amended so as to remove the Minister of Citizenship and Immigration as respondent and to substitute in his stead the Minister of Public Safety and Emergency Preparedness.
"Eleanor R. Dawson"
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7071-04
STYLE OF CAUSE: SEOKUMARI SAMAROO
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 16, 2005
REASONS FOR ORDER
AND ORDER: DAWSON, J.
DATED: SEPTEMBER 6, 2005
APPEARANCES:
Stella Iriah Anaele FOR THE APPLICANT
Gordon Lee FOR THE RESPONDENT
SOLICITORS OF RECORD:
Barrister & Solicitor FOR THE APPLICANT
North York, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
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