Date: 20100506
Docket: IMM-3357-09
Citation: 2010 FC 500
Ottawa, Ontario, May 6, 2010
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
JOSE
ALBERTO VILLAFUERTE RAMIREZ
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the decision of an enforcement officer
(the Officer) of the Minister of Public Safety and Emergency Preparedness,
dated June 30, 2009, wherein the Officer refused the Applicant’s request for a
deferral of removal.
[2]
For
the reasons set out below the application is dismissed.
I. Background
[3]
The
Applicant is a citizen of Costa Rica. He came to Canada in 2001 and
claimed refugee protection. His claim was rejected in 2002. In 2003, the
Respondent issued a warrant for the Applicant’s arrest, which was effected in
2007. During this period, the Applicant had been charged with assault with a
weapon. The Respondent then initiated removal proceedings and the Applicant
submitted an application to remain in Canada on humanitarian and
compassionate grounds (H&C) and filed a Pre-Removal Risk Assessment (PRRA)
application. The PRRA was rejected in 2009 and his removal was set for July 6,
2009.
[4]
While
in Canada, the
Applicant married a Canadian citizen. He has a Canadian born son who is 2 years
old and a Canadian born daughter who was born on August 13, 2009. The Applicant
also has two children in Costa Rica. The Applicant’s wife
was pregnant with his daughter when the removal order was to be effected. The
Applicant requested that his removal be deferred until a decision was rendered
on his H&C application or in the alternative until his wife gave birth to
their second child, and in consideration of the best interests of his Canadian
born children. He supported this request with letters from his wife, two
doctors, and his local member of parliament. The letters stated that the
Applicant’s possible removal was causing stress to his pregnant wife, that it
would be difficult for the wife to be with their young children without the
Applicant, and that the Applicant would miss valuable bonding time with the
children if the removal was effected.
[5]
The
Officer was not satisfied that a deferral of the execution of the removal order
was appropriate in the circumstances. The Officer divided the reasons for the
decision into two parts. Part one was subtitled “Best Interests of the Canadian
Child” and addressed both the issue and evidence with regard to the wife’s
pregnancy and the best interests of the Canadian-born children. Part two was
subtitled “Pending H&C application” and the Officer considered the impact
of the Applicant’s pending H&C application on the decision to defer
removal.
[6]
On
July 3, 2009, the Applicant’s removal was stayed until his judicial review
application was addressed by this Court.
II. Issue
and Standard of Review
[7]
The
Applicant raises the following issue: did the Officer err in law and in fact in
refusing to defer the removal dated July 6, 2009?
[8]
This
issue will be assessed on a standard of reasonableness (see Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Minister of Citizenship and
Immigration) v. Khosa, 2009 SCC 12; [2009] 1 S.C.R. 339; Baron v. Canada (Minister of
Public Safety and Emergency Preparedness), 2009 FCA 81; 309 D.L.R.
(4th) 411).
III. Analysis
[9]
Removal
orders are governed by Section 48 of the Immigration and Refugee Protection
Act, R.S. 2001, c. 27 (IRPA). Subsections 48(1) and (2) state:
|
Enforceable removal order
48. (1) A removal order is enforceable
if it has come into force and is not stayed.
Effect
(2) If a removal order is enforceable,
the foreign national against whom it was made must leave Canada immediately and it must be
enforced as soon as is reasonably practicable.
|
Mesure de renvoi
48. (1) La mesure de renvoi est
exécutoire depuis sa prise d’effet dès lors qu’elle ne fait pas l’objet d’un
sursis.
Conséquence
(2) L’étranger visé par la mesure de
renvoi exécutoire doit immédiatement quitter le territoire du Canada, la
mesure devant être appliquée dès que les circonstances le permettent.
|
[10]
The
Applicant argues that the Officer erred by refusing to defer removal for three
reasons. First, that there was medical evidence before the Officer that
removing the Applicant prior to the birth of the child would cause severe
stress to his Canadian wife. Second, that removal was not in the best interest
of his Canadian born children as they would miss important bonding time with
their father and that their mother would have to go back to work prior to the
end of her maternity leave. Third, that the Officer should have deferred
removal based on his outstanding H&C application that had been submitted in
April 2007.
[11]
The
Applicant also submits that the Officer made numerous errors in the reasons. These
errors were: twice including material from another decision not related to the
Applicant, incorrectly stating that the Applicant had served three years in
prison in Costa
Rica
for assault, and stating that the Applicant had been convicted of an offence,
assault with a weapon, in Canada. The Applicant actually served five years
probation for the assault in Costa Rica and was charged with an assault in Canada but was
given a peace bond.
[12]
The
Respondent argues that enforcement officers have limited discretion to defer a
scheduled removal date and that in this case it was within the Officer’s
discretion to determine that the Applicant’s circumstances did not warrant
deferral of removal. The Respondent takes the position that any error’s in the
reasons were minor and without consequence.
A. The
Birth
[13]
The
argument with regard to deferring removal based on the birth of his child is
moot. The child was delivered on August 13, 2009. There is no longer a live
issue between the parties with regard to this point and the Court declines to
exercise its discretion to decide the matter on the merits (see Borowski v. Canada (Attorney
General),
[1989] 1 S.C.R. 342; [1989] S.C.J. No. 14).
B. The
Discretion of the Enforcement Officer
[14]
As
set out by Justice Carolyn Layden-Stevenson in Padda v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1081; 33 Imm. L.R. (3d) 134),
when considering the issue of deferring removal, removal is the rule while
deferral is the exception and the discretion that a removal officer may
exercise is very limited (see paragraphs 8 to 9). While compelling individual
circumstances, such as personal safety or health may be considered, the process
is not to be a “mini-H&C” (see Prasad v. Canada (Minister of
Citizenship and Immigration) 2003 FCT 614, [2003] F.C.J. No. 805; John
v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 420; 231 F.T.R. 248).
[15]
In
Wang v. Canada (Minister of Citizenship and Immigration), 2001 FCT
148; [2001] 3 F.C. 682 (T.D.), Justice Denis Pelletier reviewed the
boundaries of the enforcement officer’s discretion. In Baron, above,
Justice Marc Nadon, for the majority of the Court of Appeal, agreed with
Justice Pelletier’s statement of the law and summarized it as follows (at
paragraph 51):
In Reasons which I find myself
unable to improve, he made the following points:
- There are a
range of factors that can validly influence the timing of removal on even the
narrowest reading of section 48, such as those factors related to making
effective travel arrangements and other factors affected by those arrangements,
such as children's school years and pending births or deaths.
- The Minister is bound by
law to execute a valid removal order and, consequently, any deferral policy
should reflect this imperative of the Act. In considering the duty to
comply with section 48, the availability of an alternate remedy, such as a
right to return, should be given great consideration because it is a remedy
other than failing to comply with a positive statutory obligation. In instances
where applicants are successful in their H&C applications, they can be made
whole by readmission.
- 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.
- Cases where the only harm
suffered by the applicant will be family hardship can be remedied by
readmitting the person to the country following the successful conclusion of
the pending application.
[Emphasis in original]
[16]
It
is this definition of an enforcement officer’s discretion that will be applied
to the facts of this case.
C. The
H&C Application
[17]
As
set out in Baron, above, an H&C application does not constitute a
bar to the execution of a valid removal order. At the hearing, the Applicant
brought to my attention the decision in Lisitsa v. Canada (Minister of
Citizenship and Immigration), 2009 FC 599; [2009] F.C.J. No. 1385. In Lisitsa,
the Court stated that while it is absolutely clear that the mere filing of an
H&C application does not result in a requirement to defer a removal, it may
be a different situation where there are special circumstances, such as a
timely filed H&C application which has been in the system for a long period
of time (see paragraphs 31to 35).
[18]
Having
considered the decision in Lisitsa, above, I return to the words of
Justice Nadon of the Court of Appeal in Baron, above. Justice Nadon
highlighted the fact that harm from removal may be remedied by readmitting the
person following a successful H&C application and that this is an important
point when consideration the boundaries of the enforcement officer’s
discretion.
[19]
In
this case, the Officer took into account the length of time the Applicant’s
H&C application had spent in processing, the fact that the Applicant had
not been served a direction to report until recently and had therefore
benefited from a fairly extensive delay in his removal thus far, and that a
final determination on the H&C did not appear to be imminent. The Officer’s
decision was reasonable based on the discretion afforded them.
D. Best
Interests of the Children
[20]
The
jurisprudence of this Court has made it clear that illegal immigrants cannot
avoid the execution of a valid removal order simply because they are parents of
Canadian born children (see Baron, above, at paragraph 57). In John
v. Canada (Minister of
Citizenship and Immigration), above, Justice Judith Snider noted the
very limited role played by enforcement officers in the overall immigration
process. At paragraph 20, Justice Snider stated that there was no clear duty on
the enforcement officer to consider the Best Interests of the Child under Section
48 removal orders:
20 As a result, there
is likely no requirement that the removals officer consider H&C factors,
including the impact of the removal on the Canadian citizen child. Such a duty
on the removals officer, where one already exists at the H&C application
stage, would constitute unnecessary duplication.
[21]
In
this case, the Officer did consider the fact that the children would remain in
the care of their mother. The Officer also noted that the family knew that the
Applicant was under a removal order and that the wife and children had access
to all the social programs and resources available to all Canadians to assist
them. The Officer acted reasonably within the ambit of discretion afforded
them.
[22]
In
this case, the Officer considered the material submitted by the Applicant and I
have not been persuaded that the Officer made a reviewable error in her or his consideration
of the evidence. What the Applicant is asking this Court to reassess the
evidence so as to reach a different conclusion. This is not the role of this
Court on judicial reviews of this kind (see Baron, above, paragraph 60).
The Officer reasonably exercised the narrow discretion afforded to enforcement
officers with respect to granting temporary deferral.
E. The
Errors
[23]
The
Officer clearly made factual errors in the reasons by including passages from
another Officer’s notes and with regard to the Applicant’s criminal record. However,
these matters do not affect the heart of the decision. I note that in Ogiriki
v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 420;
2006 FC 342, Justice Simon Noël held that a decision should be taken as a whole
and stand even if a few "weaknesses" were identified by the Applicant
(see paragraph 13).
[24]
The
parties did not raise an issue for certification and none arose.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. this application is dismissed;
and
2. there is no award for costs.
“ D.
G. Near ”
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