Date: 20041028
Docket: IMM-686-04
Citation: 2004 FC 1493
Ottawa, Ontario, this 28th day of October, 2004
Present: The Honourable Mr. Justice Simon Noël
BETWEEN:
OLOLADE OLUYEMI LABIYI, OMOTOKE TOBI LABIYI,
ATINUKE ABOLANLE LABIYI, ADEFISAYO ENITAN ABISOYE AKINSANYA,
AYOMIDE TEMITOPE LABIYI
Applicants
and
THE SOLICITOR GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a verbal decision made by an Enforcement Officer (Melinda Granter), acting in her capacity as Supervisor for Citizenship and Immigration Canada (Canada Border Services Agency) (the "CIC Enforcement Officer") dated January 23, 2004 whereby she declined her discretion to defer the Applicants' removal and would proceed with the removal of the Applicants from Canada. The Applicants seek:
(a) an order that CIC do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) an order to declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of CIC.
[2] There is also a motion of the Respondent asking to amend the style of cause by replacing the Respondent the Minister of Citizenship and Immigration with the Solicitor General of Canada.
ISSUE
[3] The main issue is whether the CIC Enforcement Officer made an error of law when she decided not to defer removal because the decision had been previously made by the Director of Citizenship and Immigration on November 25th, 2003 and therefore she did not have the authority to overturn that decision.
BACKGROUND
[4] The principal Applicant in this matter is Ololade Oluyemi Labiyi (Mrs. Labiyi or the "principal Applicant"), a citizen of Nigeria, born in 1961. There are four other Applicants in this matter, all daughters of the principal Applicant, ranging in age from five to 18, each of which is also a citizen of Nigeria. Mrs. Labiyi and her daughters (collectively, the "Applicants") are members of the Yoruba tribe.
[5] The Applicants entered Canada as visitors on September 19, 2001 pursuant to visitors' visas and made a claim to be Convention refugees on October 26, 2001.
[6] The Applicants' claim was heard before a single member panel of the Immigration and Refugee Board of Canada (the "IRB") on July 30, 2002. The Applicants alleged a well-founded fear of persecution on account of their membership in a particular social group: Yoruba women subject to the practice of female genital mutilation ("FGM") in Nigeria. On September 9th, 2002, the IRB denied the Applicants' Convention refugee claim, finding the principal Applicant to not be credible.
[7] On November 18, 2002, the application for Leave and Judicial Review of the decision of the IRB was dismissed.
[8] On November 30, 2002, deemed Deportation Orders were issued against the Applicants.
[9] Following a Notification for Pre-Removal Risk Assessment ("PRRA") on December 11, 2002, the Applicants filed an application for a PRRA on December 23, 2002.
[10] At the beginning of June 2003, the Applicants submitted applications for permanent residency on humanitarian and compassionate grounds (the "H & C applications" and "H & C grounds"). These H & C applications were based on the risk of FGM to which the principal Applicant's daughters would be subjected in the event of their return to Nigeria, as well as the risk of serious psychological harm to the principal Applicant and her eldest daughter. As of today, there has been no response given to the H and C Applications.
[11] The Applicants' PRRA was denied on June 5, 2003. The application for Leave and Judicial Review of the PRRA decision was dismissed on October 21, 2003.
[12] On November 25, 2003, counsel for the Applicants contacted the Director of the Canada Immigration Centre in Calgary, Robert Ferguson (Mr. Ferguson, or the "Director") and asked if the Applicants could be allowed to remain in Canada pending the outcome of the H & C applications. The Director responded that the Applicants would not be permitted to remain in Canada until their H & C applications were determined.
[13] Arrangements were subsequently made by CIC in January 2004 to remove the Applicants from Canada on February 2, 2004.
[14] On January 23, 2004, counsel for the Applicants contacted the CIC Enforcement Officer, Melinda Granter ("Ms. Granter") by telephone and requested she defer removal arrangements. The CIC Enforcement Officer declined to consider deferring the Applicants' removal on the grounds that the matter had previously been decided by the Director in November 2003. The details of this conversation were not presented to the Court, but a letter signed by Ms. Granter, dated July 26, 2004, and submitted by the Respondent with this application, reads:
"I, Melinda Granter, an Enforcement Officer, acting as a supervisor for Canada Border Services Agency (Citizenship and Immigration, verbally informed Mr. Sherrit on 23 January, 2004 that I could not defer the removal of the Applicants which had already been scheduled. The decision was made by the Director of Citizenship and Immigration in November 2003 and that I did not have the authority to overturn that decision."
[15] On January 26, 2004, the Applicants formally requested in writing that CIC defer removal until after the assessment of the H & C applications.
[16] On January 30, 2004, the Federal Court granted an Order staying the execution of the removal orders until the application for leave for judicial review had been reviewed.
DECISION UNDER REVIEW
[17] As mentioned above, on January 23, 2004, the CIC Enforcement Officer declined to consider deferring the Applicants' removal on the grounds that the matter had previously been decided by the Director in November 2003.
SUBMISSIONS
The Applicants
[18] The Applicants make two main arguments:
(a) The CIC Enforcement Officer erred in law by refusing to exercise her discretion to consider deferring the Applicants' removal; and
(b) The CIC Enforcement Officer's decision to not consider deferring the Applicants' removal was not reasonable in the circumstances.
[19] The Applicants concede that the decision to defer an applicant's removal is a discretionary one; however, in light of the nature of the H & C applications still pending at the time the deferral was sought, and the risks that Mrs. Labiyi's daughters would run in regards to FGM as well as the risk of serious psychological harm that Mrs. Labiyi and her eldest daughter were likely to suffer were they to return to Nigeria, this was a special case where the CIC Enforcement Officer should have exercised her discretion and deferred removal.
[20] The Applicants submit that although they were the subject of a negative PRRA, the CIC Enforcement Officers are not similarly constrained by the rules of s.113(a) of the IRPA; especially in light of the fact that the PRRA Officer ruled the bulk of evidence newly-submitted by the Applicants showing a substantial risk of FGM in Nigeria was inadmissible.
[21] Finally, the Applicants submit that although the Applicants' counsel had previously discussed this matter with the Director, Mr. Ferguson, on or before November 25, 2003, no formal request was ever made to Mr. Ferguson at that time or any other time, and no evidence was ever submitted to him in support of this request. The Applicants are of the opinion that the Director never made an actual decision on the matter of the deferral, but merely indicated that the Applicants had already been afforded sufficient reviews by CIC. In light of this, the Applicants submit that Ms. Granter erred on January 23, 2004 when she refused to consider whether she might appropriately defer removal.
The Respondent
[22] The Respondent's main argument is that since Ms. Granter, the CIC Enforcement Officer, was bound to follow the decision of her supervisor Mr. Ferguson, who had already made a decision in response to the Applicants' request to defer removal, there is no discretionary decision capable of judicial review in this case. The Respondent concedes that while CIC Enforcement Officers do have a limited discretion to defer removal, this discretion could not be exercised in this case since the Director had already made a decision in this matter.
[23] The Respondent points out that the time to bring an application for judicial review would have been immediately following the decision of the Director in November 2003. In other words, it is not Ms. Granter's refusal to reconsider which the Applicants should be requesting a review, but Mr. Ferguson's initial decision to not defer removal. The Respondent submits that should this Court determine that Ms. Granter should have reconsidered the request to remove deferral, it will mean that applicants may request deferrals an unlimited number of times until the decision they are hoping for is reached.
[24] Finally, the Respondent claims that the Applicants are attempting to review the decision of the PRRA Officer by making the same allegations of risk and of improper tribunal decisions on this application. The Respondent states that these decisions are all subject to res judicata.
ANALYSIS
[25] As per subparagraph 48(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("I.R.P.A."), CIC Enforcement Officers have a very limited discretion to determine whether requests to defer removal should be entertained. This discretion belongs to the Minister but in practice is exercised by CIC Enforcement Officers. The Minister has the obligation to see that the requirements of I.R.P.A. are respected, including the execution of removal orders. A CIC Enforcement Officer is not an appeal forum obligated to reassess a situation, but rather has a duty to review and assess circumstances which could impact on a removal. These circumstances must be special and of an exceptional nature. Our Courts have recognize this role in the past. (See Wang v. Canada (Minister of Citizenship and Immigration) (2001), 204 F.T.R. 5 (F.C.T.D.).)
[26] A request to defer removal was refused by Mr. Ferguson on November 25th, 2003.
Unfortunately, we do not know exactly how the conversation between counsel for the Applicants and Mr. Ferguson proceeded. A second request was made by counsel for the Applicants on January 23rd, 2004 to Ms. Granter. Again the evidence is limited as to the reasons for such request. The letter dated January 26th, 2004 that was forwarded to Ms. Granter does include reasons. In summary, it indicates that the H & C applications have not yet been dealt with, and contains new information concerning the risk to the lives and health of the Applicants, with which no immigration officer had yet dealt.
[27] Ms. Granter did not appear to be concerned with reviewing these reasons to determine whether a reconsideration of the original decision should be undertaken before she refused to consider deferring the removal but simply stated that she did not have the authority to defer the removal because her Director had already made a decision.
[28] I note that the Director's decision was made close to eight (8) weeks before Ms. Granter's decision of January 23rd, 2004. As time passes, events occur and new situations happen. Although CIC Enforcement Officers have a limited discretion, the discretion they have is in fact there in order to allow them to assess whether special circumstances exist to warrant a re-examination of the applicant's file. In the current situation, it does not appear that any such assessment was made. A reading of the decision of Ms. Granter does not refer to the reasons given by the Applicants in support of their request for deferral; it only mentions that the decision had already been made and that she did not have the authority to change it.
[29] It is not merely because a decision has been previously made that a CIC Enforcement Officer loses his or her power to reassess a situation. If there are, in fact, special and exceptional reasons presented, a CIC Enforcement Officer has an obligation and a duty to assess these reasons and then make a decision whether to exercise his or her discretion. This has not been done in this case and is therefore an error in law.
[30] Without the slightest consideration of factors to determine whether an Applicant's situation has changed enough to warrant revisiting an earlier decision on deferral, it does not seem possible for a CIC Enforcement Officer to properly exercise discretion in choosing whether to consider deferring removal. Therefore, in this case, judicial review is granted.
[31] The Court was told that CIC Enforcement Officers will get numerous requests if there is such an obligation to review even those decisions previously made. Again, I repeat that the circumstances to warrant a re-examination must be special and exceptional.
[32] Counsel for both parties were asked if they had questions for certification to propose but each declined.
ORDER
THIS COURT ORDERS THAT:
- The CIC Enforcement Officer's decision of January 23rd, 2004, to not consider deferral of the Applicants' removal is set aside and referred back for determination in accordance with the law applicable by a different CIC Enforcement Officer.
- The style of cause in this matter be amended, replacing the Respondent "The Minister of Citizenship and Immigration" with "The Solicitor General of Canada";
- No question is to be certified.
"Simon Noël"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-686-04
STYLE OF CAUSE: OLOLADE OLUYEMI LABIYI ET AL v.
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: CALGARY, ALBERTA
DATE OF HEARING: October 13, 2004,
REASONS FOR : The Honourable Mr. Justice S. Noël
DATED: October 28, 2004
APPEARANCES:
Mr. G. Michael Sherritt FOR APPLICANT
Mr. Rick Garvin FOR RESPONDENT
SOLICITORS OF RECORD:
Sherritt Greene
Calgary, Alberta FOR APPLICANT
Morris Rosenberg, Deputy Attorney General of
Canada (Edmonton Regional Office)
Edmonton, Alberta FOR RESPONDENT
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