Date: 20100311
Docket: IMM-4097-09
Citation: 2010 FC 277
Ottawa, Ontario, March 11,
2010
PRESENT: The
Honourable Frederick E. Gibson
BETWEEN:
FREDERIK
BALIGNOT REYES
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR
ORDER AND ORDER
Introduction
[1]
These
reasons and this order follow the hearing at Toronto, on the 10th of
February, 2010, of an application for judicial review of a decision of an Enforcement
Officer in the Canada Border Services Agency (the “Officer”), dated the 6th
of August, 2009, wherein the Officer rejected the Applicant’s request for an
administrative deferral of his removal to Manila, Philippines, scheduled for
the 28th of August, 2009.
Background
[2]
The
Applicant is a citizen of the Philippines and of no other
country. He arrived in Canada on the 17th of July, 2002 on a
visitor’s visa valid to the 30th of July, 2002. His status in Canada was extended
to the 16th of January, 2003. Apparently after his status had
expired, the Applicant filed a Convention refugee claim. That claim was denied
on the 3rd of March, 2004. The Applicant sought judicial review of
the denial of his Convention refugee claim. Leave on the judicial review application
was denied on the 3rd of February, 2005.
[3]
On
the 25th of October, 2006, the Applicant submitted a spousal sponsorship
application for permanent residence. On the 23rd of November, 2006,
a call-in notice was sent to the Applicant advising him that he must attend an
interview on the 12th of December, 2006. Although not noted in the
call-in notice, the scheduled interview was a pre-removal interview including
an opportunity to advise the Applicant of his right to initiate a pre-removal
risk assessment. At interview, the Applicant was advised that it was “his luck
day” and he left the interview without being requested to consider initiating a
pre-removal risk assessment, apparently by reason of the outstanding spousal
application, although that reason was apparently not communicated to the
Applicant. The Applicant was required to return for a further interview on the
12th of January, 2007.
[4]
At
the interview on the 12th of January, 2007, the Applicant provided
the Respondent’s officials with copies of his marriage certificate and a
receipt as proof that he had submitted a spousal sponsorship application.
[5]
On
the 2nd of December, 2008, the Applicant’s spousal sponsorship application
was withdrawn at his request as his relationship with his spouse had apparently
broken down.
[6]
On
the 19th of December, 2008, a second spousal sponsorship application
submitted by the Applicant was received by the Respondent.
[7]
A
further call-in-notice was sent to the Applicant and in response he attended an
interview on the 19th of March, 2009. On this occasion, the
Applicant was advised of his right to submit an application for a pre-removal
risk assessment and he availed himself of that opportunity. On the 29th
of June, 2009 the Applicant’s pre-removal risk assessment application was
rejected.
[8]
On
the 16th of July, 2009, a call-in-notice was sent to the Applicant
advising him to attend an interview on the 5th of August, 2009. On
the 22nd of July, 2009, through counsel, the Applicant requested an
administrative deferral of his removal. On the 5th of August, 2009,
at interview, the Applicant was served with his negative pre-removal risk
assessment decision. On the 6th of August, 2009, the refusal to
defer decision, the decision here under review, was made.
[9]
The
Applicant left Canada to return to Manila, the Philippines, on the 28th
of August, 2009, after a motion for a stay of his removal based on this
application for judicial review was denied.
The Decision Under
Review
[10]
The
denial of the Applicant’s request for an administrative deferral of his removal
was based on the allegation that he was not entitled to an administrative
deferral based on the public policy set out in Inland Processing Manual 8, Spouse
or Common-law Partner in Canada Class, Appendix H, by reason of a limitation in
section 5F of that policy. The relevant portions of that policy are set out
below in these reasons.
[11]
In
the decision under review, the Officer wrote:
Mr. Reyes [the
Applicant] submitted his first In-Canada Spousal Application for Permanent
Residence on October 25, 2006. Shortly thereafter, Mr. Reyes was scheduled to
attend a pre-removal interview at the Greater Toronto Enforcement Centre (GTEC)
on December 12, 2006 for PRRA (Pre-Removal Risk Assessment) initiation. During
the interview on December 12, 2006, Mr. Reyes provided a receipt to the
Immigration Officer as proof that he had made a Spousal application before he
was called in for his pre-removal interview. At that time, the Officer
suspended the PRRA initiation and granted Mr. Reyes the one-time administrative
deferral of removal pursuant to the public policy as set out in Appendix H of
IP 8.
Mr. Reyes submitted a
second In-Canada Spousal Application for Permanent Residence on December 19,
2008. On March 19, 2009, Mr. Reyes was scheduled to attend GTEC for a
pre-removal interview. At that interview, the Officer initiated PRRA as Mr.
Reyes had already benefited from the administrative deferral of removal
emanating from his previous spousal application and as such does not qualify
for a second deferral of removal.
[emphasis
added]
IP 8
– Appendix H
[12]
As
noted earlier, Immigration Policy 8 is entitled Spouse or Common-law Partner in
Canada Class. Appendix H to IP 8 is entitled Public Policy Under 25(1) of IRPA
to Facilitate Processing in accordance with the Regulations of the Spouse or
Common-law Partner in Canada Class.
[13]
Paragraph
1. of the Policy, entitled Purpose, reads as follows:
The Minister has
established a public policy under subsection 25(1) of the Immigration and
Refugee Protection Act (IRPA), setting the criteria under which spouses and
common-law partners of Canadian citizens and permanent residents in Canada who
do not have legal immigration status will be assessed for permanent residence.
The objective of this policy is to facilitate family reunification and
facilitate processing in cases where spouses and common-law partners are
already living together in Canada.
[emphasis
added]
[14]
Paragraph 3, under the heading “Policy” states in part:
“CIC [Citizenship and
Immigration Canada] is committed to family reunification and facilitating
processing in cases of genuine spouses and common-law partners already living
together in Canada. CIC is also committed to preventing the hardship
resulting from the separation of spouses and common-law partners together in Canada, where
possible.
...
[15]
That paragraph continues:
A25 [section 25 of
IRPA] is being used to facilitate the processing of all genuine
out-of-status spouses or common-law partners in the Spouse or Common-law Partner
in Canada class where an undertaking has been submitted. Pending H&C
spousal applications with undertakings will also be processed through this
class. ... [emphasis
added]
[16]
Paragraph 4, under the heading Public Interest, provides in
part:
The Minister has
determined that it is in the public interest to assess all foreign nationals,
regardless of status (in spousal or common-law relationships with Canadian
citizens or permanent residents), under the provisions of the Spouse or
Common-law Partner in Canada class if they meet the following:
·
Have made an application for permanent residence either on H&C grounds
or via the Spouse or Common-law Partner in Canada class;
...
[17]
Paragraph 5F of the Policy, under the heading Administrative
Deferral of Removal, provides in part as follows:
The Canada Border
Services Agency has agreed to grant a temporary administrative deferral of
removal to applicants who qualify under this public policy. The deferral
will not be granted to applicants who:
...
·
Have already benefited from an administrative deferral of
removal emanating from an H&C spousal application;
...
For those applicants
who are receiving a pre-removal risk assessment (PRRA), the administrative
deferral for processing applicants under this H&C public policy will be in
effect for the time required to complete the PRRA ... . Applicants who have
waived a PRRA or who are not entitled to a PRRA will receive an administrative
deferral of removal of 60 days.
...
[emphasis added]
It is
these elements of the Appendix H – Public Policy that give rise to the issue
here before the Court.
The Issues
[18]
Counsel for the Respondent has raised, as a preliminary
issue, the question of mootness, given the fact that the Applicant in fact
left, or was removed from, Canada prior to the hearing of this application for judicial review.
[19]
Counsel for the Applicant raises only one issue in his
Memorandum of Fact and Law, that issue being stated in the following terms:
Whether the Removal
Officer erred in law by finding that the Applicant had already benefited from a
previous administrative deferral of removal under the Public Policy emanating
from a previous SCLPIC [Spouse or Common-law Partner in Canada Class]
application, and thus refusing to grant an administrative deferral of removal
under the Public Policy.
[20]
The Court is satisfied that a third issue arises on this
application for judicial review if the Applicant is successful, that being,
what is an appropriate remedy in favour of the Applicant if this application
for judicial review were granted? I will turn to the issues in the order in
which I have listed them.
Analysis
Mootness
[21]
It was not in dispute that the overriding authority on
mootness is Borowski v. Canada (Attorney General). The test for mootness
involves a two-stage analysis. The question at the first stage is whether the
Court’s decision would have any practical effect on resolving some live
controversy between the parties. Where the issues between the parties have
become “academic” or the “tangible and concrete dispute has disappeared”, the
proceedings are technically moot.
[22]
The second stage focuses on whether, notwithstanding that
the matter is technically moot, the Court should exercise its discretion to
decide the case. The Court’s exercise of discretion should be guided by the
three policy rationales underlying the doctrine of mootness: the presence of
an adversarial context; the concern for judicial economy; and the need for the
Court to be sensitive to its role as the adjudicative branch in our political
framework.
[23]
Counsel for the Respondent urges that an application for
leave and judicial review of a decision refusing to defer removal is
technically moot in two situations: first, where the basis for the deferral
request is resolved prior to deciding the application for leave and judicial
review; and second, where the Court grants no stay of removal and the applicant
is removed prior to
deciding the application
for leave and judicial review.
[24]
Counsel for the Respondent urges that both situations are
applicable here. He notes that the basis for a deferral request is resolved
since the Applicant left Canada in late August, 2009 and secondly, here, as earlier noted, there was an
application to this Court for a stay of removal based upon this application for
judicial review and the Court denied that application. The Applicant’s
In-Canada Spousal Sponsorship application was itself refused on the 9th
of November, 2009, after this application was instituted.
[25]
Counsel for the Applicant urges that this application for
judicial review is not moot since there remains a “live controversy” between
the parties, that being essentially the second issue on this application for
judicial review that is described above.
[26]
Counsel for the Applicant further urges that, in any event,
if this application for judicial review is moot, the Court should nonetheless
exercise its discretion to decide the case because there is indeed the presence
of an adversarial context which outweighs any concern for judicial economy and
any need for the Court to be sensitive to its role as only the adjudicative
branch in our political framework.
[27]
I am satisfied that the issue of exercise of the Court’s
discretion is, generally speaking, determined in favour of the applicant in the
majority reasons of the Federal Court of Appeal in Baron v. Canada (Minister
of Public Safety and Emergency Preparedness),
and that I should exercise my discretion to hear the substance of this
application for judicial review because, indeed, there continues to exist an
adversarial context between the parties and determination of that adversarial
context outweighs the concern for judicial economy, and at the same time
dealing with the substance of this application is properly within the
adjudicative function of this Court.
Had the Applicant
Benefited from a Previous Administrative Deferral Under the Spouse or
Common-law Partner in Canada Class Policy at the Time the Decision here Under
Review Was Made
[28]
It is trite law that, under subsection 48(2) of the Immigration
and Refugee Protection Act,
where a removal order is enforceable against a foreign national such as the
Applicant, he or she must leave Canada immediately and the order must be
enforced as soon as is reasonably practical. The discretion of a Removals
Officer such as the decision-maker whose decision is here at issue is extremely
narrow. In Baron, supra, the Federal Court of Appeal
characterized the discretion of an Enforcement Officer considering a request
for deferral by citing from Wang v. Canada (Minister of Citizenship and Immigration) where
Justice Pelletier wrote:
In order to respect
the policy of the Act which imposes a positive obligation on the Minister,
while allowing for some discretion with respect to the timing of a removal,
deferral should be reserved for those applications where failure to defer will
expose the applicant to the risk of death, extreme sanction or inhumane
treatment. With respect to H&C applications, absent special
considerations, such applications will not justify deferral unless based upon a
threat to personal safety.
[29]
Counsel for the Applicant, while acknowledging that none of
the circumstances described in the foregoing quotation apply, nonetheless urged
that the Removals Officer erred in a reviewable manner in failing to respect
the Spouse or Common-Law Partner in Canada Class policy which provided, he
urged, a public interest stay, since the Applicant was the subject of a Spouse
or Common-law Partner in Canada Class application that was outstanding when the
request to defer came before the Officer and that that deferral applied to the
Applicant since none of the conditions under which such a deferral would not be
granted under the policy applied. In particular, counsel for the Applicant
urged that the Applicant had not previously benefited from an administrative
deferral emanating from an “H&C grounds” application for permanent
residence but rather from a “Spouse or Common-law Partner in Canada Class
application for permanent residence”. The policy at issue provides that a
deferral will not be granted to persons such as the Applicant who earlier
benefited from an administrative deferral of removal emanating from an “H&C
Spousal Application”.
[30]
With great respect, I reach a different conclusion from
that urged by counsel for the Applicant. I acknowledge that the language of
the policy at issue leaves something to be desired. For ease of reference, I
repeat the relevant language here: “The Minister has determined that it is in the
public interest to assess all foreign nationals, regardless of status (in
spousal or common-law relationships with Canadian citizens or permanent
residents) under the ... policy if they meet one of ...” two conditions
including if they have made an application for permanent residence either “...
on H&C grounds or via the Spouse or Common-law Partner in Canada Class;”.
The deferral does not apply to an applicant who has already benefited from an
administrative deferral for removal emanating from an H&C Spousal
Application. I am satisfied that the reference to an “H&C Spousal
Application” is a reference to an application for permanent residence via the
Spouse or Common-law Partner in Canada Class, which is the class under which
the Applicant’s first application for permanent residence was made and not to
simply an application for permanent residence on H&C grounds.
[31]
What is at issue here is an interpretation of ministerial
policy, not an interpretation of legislation or subsidiary legislation. I am
satisfied that the appropriate principle of interpretation
here is to interpret the
policy and its provisions in a manner that best coincides with the purpose and
objective of the policy, as stated in the policy itself. I am satisfied that
the limitation on the administrative deferral provided for by the policy should
apply, and is capable of being applied without doing a disservice to the
terminology of the policy, to circumstances such as those that apply to the Applicant
at the time his request for deferral from a Removals Officer was denied.
[32]
In the result, I find that there is no merit in this
application for judicial review.
Remedy
[33]
In light of my determination that I must dismiss this
application for judicial review, the issue of remedy itself is moot. I will,
nonetheless, turn briefly to that issue.
[34]
In the Applicants Memorandum of Fact and Law, the Applicant
seeks the following remedies:
1. An order quashing and setting aside the decision
of the Officer that is under review and remitting the matter of the Applicant’s
application for a deferral of removal back to a different panel or Officer;
2. An order declaring the removal of the Applicant
on the 28th of August, 2009 to have been unlawful or invalid; and
3. Finally, an order requiring the Respondent “...
to undertake all costs and efforts to return the Applicant to Canada forthwith so
that he might remain in Canada while his Spouse or Common-law Partner in Canada
Class application for landing that was pending at the time the Applicant’s
Memorandum was filed is determined.
[35]
Subsection 18.1(3) of the Federal Courts Act sets out the powers of this
Court on an application for judicial review. The reliefs sought on behalf of
the Applicant are not fully consistent with that provision of law. Further,
given the fact that the Applicant is no longer in Canada and that his Spouse or Common-law Partner in Canada Class application has
now been determined against him, they appear, in part at least, to not be in
keeping with common sense. Reconsideration of the Applicant’s application for
a stay of removal is outdated. Return of the Applicant at the Respondent’s
expense is not contemplated as a remedy under subsection 18.1(3) and is also
outdated unless the decision on the Applicant’s Spouse or Common-law Partner in
Canada Class application is reopened by reason of the judicial review that is
pending with respect to that decision. A declaration that the removal of the
Applicant, if indeed he was removed and did not leave voluntarily on the 28th
of August, 2009, is within the contemplation of subsection 18.1(3). Finally,
costs on an application for judicial review in an immigration matter requested
by counsel for the Applicant at hearing may only be awarded where “special reasons” exist. I am not satisfied that
special reasons here exist.
Conclusion
[36]
For the foregoing reasons, this application for judicial
review will be dismissed. At the close of hearing, counsel were advised of the
foregoing result. They were consulted on the issue of certification of a
question. Counsel for the Applicant requested an opportunity to formulate a
question or questions. A brief interval was allowed for that purpose. During
that interval, counsel advised the Court that he will not be proposing a
question or questions for certification. At the same time, he did propose
questions in the event that the Court, of its own motion, determined to certify
a question or questions. Counsel for the Respondent proposed no question and
urged against certification of a question. The Court is satisfied that this
matter turns entirely on its relatively unique facts. In the circumstances,
the Court itself is satisfied that no serious question of general importance
arises that would be determinative on an appeal from the decision herein. No
question will be certified.
ORDER
THIS COURT ORDERS that this application for
judicial review is dismissed. No question is certified.
“Frederick
E. Gibson”
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