Date: 20100629
Docket: IMM-5351-09
Citation: 2010 FC 706
Ottawa, Ontario, June 29, 2010
PRESENT: The Honourable Mr. Justice Mainville
BETWEEN:
MARIO
IVAN RIVERO RAMIREZ
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
concerns an application brought pursuant to sections 72 and following of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”) by Mario
Ivan Rivero Ramirez (the “Applicant”) whereby he is seeking judicial review of
a decision of enforcement officer D. Puzeris (the “enforcement officer”) dated
October 26, 2009 refusing to defer the Applicant’s removal from Canada.
[2]
This
application is dismissed for the reasons set out below.
Background
[3]
The
Applicant entered Canada on January 18, 2007 and shortly thereafter made
a claim for refugee protection which was subsequently rejected on July 16, 2008
by the Refugee Protection Division of the Immigration and Refugee Board on the
basis that an internal flight alternative was available to him in Mexico. Leave
seeking a judicial review of this decision was denied.
[4]
The
Applicant then submitted a pre-removal risk assessment application on February
26, 2009. By decision dated April 14, 2009 the pre-removal risk assessment was
found to be negative.
[5]
On
June 9, 2009, the Applicant was required to report for removal for August 10,
2009. In the interim, on July 23, 2009, an application for permanent residence
under the spouse or common law partner in Canada class was
submitted on behalf of the Applicant. It should be noted that the Applicant
married a Canadian citizen on June 6, 2009 with whom he had previously fathered
two children in Canada on June 25, 2008 and July 20, 2009 respectively.
The August 10, 2009 removal was deferred in light of the birth of the second
child.
[6]
However,
on October 14, 2009 the Applicant was again directed to report for removal for
October 30, 2009. The Applicant sought a deferral of that removal from the enforcement
officer on the basis that he had an outstanding inland sponsorship application
as a spouse of a Canadian citizen, and on the basis that his wife was
experiencing post-partum depressive symptoms requiring his continued presence
with her and taking into account the best interests of his two young Canadian
born children.
[7]
The
enforcement officer refused this deferral request. However the Applicant’s
deferral was stayed by a judge of the Federal Court on October 29, 2010 pending
the outcome of this judicial review.
The issues
[8]
The
Applicant is seeking what amounts to a permanent deferral of his removal
pending the disposition of his permanent residence application under the spouse
or common law partner in Canada class. Therefore, the principal issue in this
application is whether the enforcement officer erred in refusing to defer the
Applicant’s removal from Canada pending the disposition of this
application.
[9]
The
Applicant also argues that psychological ailments affecting his spouse and the
best interest of his children were not adequately taken into account by the
enforcement officer when refusing to defer his removal from Canada.
The standard of review
[10]
The
decision of an enforcement officer not to defer the removal of a person subject
to a removal order under the Act is one involving the exercise of discretion,
though a very limited discretion. Pursuant to the teachings of the Supreme
Court of Canada in Dunsmuir v. New Brunswick, [2008] 1
S.C.R. 190, discretionary decisions are to be reviewed on a standard of
reasonableness. This was the standard applied in Chetaru v. Canada (Minister of
Public Safety and Emergency Preparedness), 2009 FC 436 in the
judicial review of the decision of another enforcement officer refusing to
defer a removal. Consequently, I shall apply a standard of reasonableness in
this judicial review.
Analysis
[11]
This
application can be decided within the principles set out by the Federal Court
of Appeal in Baron v. Canada (Minister of Public
Safety and Emergency Preparedness), 2009 FCA 81, 309 D.LR. (4th)
411; [2009] F.C.J. No. 314 (QL) (“Baron”) referring approvingly to the
decision of Pelletier J.A. in Wang v. Canada, 2001 FCT 148; [2001] 3
F.C. 682; [2001] F.C.J. No. 295 (QL) (“Wang”) and to the decision of
Nadon J.A. in Simoes v. Canada (Minister of
Citizenship and Immigration) (2000), 187 F.T.R. 219; [2000] F.C.J. No.
936 (QL) (“Simoes”).
[12]
In
Wang, Pelletier J.A. stated the following at paragraphs 48 and 52
[emphasis added]:
It has been recognized that there is a discretion to defer removal
though the boundaries of that discretion have not been defined. The grant of
discretion is found in the same section which imposes the obligation to execute
removal orders, a juxtaposition which is not insignificant. At its widest, the
discretion to defer should logically be exercised only in circumstances where
the process to which deferral is accorded could result in the removal order
becoming unenforceable or ineffective. Deferral for the mere sake of delay is
not in accordance with the imperatives of the Act. One instance of a policy
which respects the discretion to defer while limiting its application to cases
which are consistent with the policy of the Act, is that deferral should be
reserved for those applications or processes where the failure to defer will
expose the applicant to the risk of death, extreme sanction or inhumane
treatment in circumstances and where deferral might result in the order
becoming inoperative. The consequences of removal in those circumstances
cannot be made good by re-admitting the person to the country following the
successful conclusion of their pending application. Family hardship cases such
as this one are unfortunate but they can be remedied by readmission.
[…]
Turning to the issue in the underlying judicial review, the
Removal Officer's refusal to defer the removal pending the disposition of the
H&C application, I find no serious issue with regard to the Removal
Officer's conduct. As set out above, a pending H&C application on grounds
of family separation is not itself grounds for delaying a removal. To treat it
as such would be to create a statutory stay which Parliament declined to enact.
[…]
[13]
This
approach was approved by the Federal Court of Appeal in Baron at
paragraph 51 [emphasis in original]:
Subsequent to my decision in Simoes, supra,
my colleague Pelletier J.A., then a member of the Federal Court Trial Division,
had occasion in Wang v. Canada (M.C.I.), [2001] 3 F.C. 682 (F.C.), in
the context of a motion to stay the execution of a removal order, to address
the issue of an enforcement officer's discretion to defer a removal. After a
careful and thorough review of the relevant statutory provisions and
jurisprudence pertaining thereto, Mr. Justice Pelletier circumscribed the
boundaries of an enforcement officer's discretion to defer. 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.
I agree
entirely with Mr. Justice Pelletier's statement of the law.
[14] In this case, the personal safety
of the Applicant is not at issue. The Refugee Protection Division of the Immigration
and Refugee Board of Canada and the officer who carried out the pre-removal
risk assessment both found that the Applicant had an internal flight
alternative available to him within Mexico. Absent new evidence to
the contrary, the enforcement officer did not have the authority to ignore or
to overturn these decisions.
[15] Consequently, the principal issue
in this application is whether the pending in-Canada spousal sponsorship
application is a sufficient reason to defer the removal. In other words, does
this application constitute one of the special considerations referred to in Wang
and Baron which could allow the enforcement officer to defer the
removal of the Applicant?
[16] As noted by Nadon J.A. in Baron
at paragraph 50, the mere existence of an H&C application does not
constitute a bar to the execution of a valid removal order. The same can be
said of an in-Canada spousal application since the Act does not provide that
such an application results in the deferral of a removal order. Though the
minister has developed a public policy providing for a temporary administrative
deferral of removal in certain circumstances for those who have submitted an
in-Canada spousal application, the Applicant does not meet the eligibility
criteria of this public policy. The enforcement officer has no authority to
modify this policy or to develop a new policy in order to accommodate the
Applicant.
[17] Perhaps an enforcement officer
may defer the removal if the decision on the in-Canada spousal application is imminent,
thus possibly avoiding multiple displacements for the Applicant should his
in-Canada spousal application be accepted; and perhaps the length of time for
which an in-Canada spousal application has been pending may be a factor in
determining if a decision on the application is impeding; however the simple
fact that an in-Canada spousal application is pending does not justify a
deferral absent special circumstances. The enforcement officer did not act
unreasonably in refusing to defer the removal of the Applicant on this basis.
[18] The authority of an enforcement
officer is precisely what the title of the position calls for: the enforcement
of removals. The enforcement officer has a limited discretion concerning the
timing of a removal, but his or her authority does not and should not extend to
delaying a removal pending the outcome of an in-Canada spousal application
where the Act itself or public policy does not provide for such a deferral and
where the decision on the pending application is not imminent.
[19] Moreover, with respect to the
presence of Canadian-born children, an enforcement officer is not required to
undertake a substantive review of the children’s best interests before
executing a removal order. As stated by Nadon J.A. in Baron at paragraph
57, “an enforcement officer has no obligation to substantially review the
children’s best interest before executing a removal order. I believe that
Pelletier J.A.’s Reasons in Wang, supra, support this view.”
[20] Finally, concerning the Applicant’s
spouse’s psychological state, the enforcement officer took this fact into
account. However, the enforcement officer found that the Applicant had been
provided ample opportunity to organize alternative arrangements for his spouse
in preparation for his removal and that professional treatment for his spouse
was amply available to her in Canada should the Applicant be removed. These
were findings which fall
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law (Dunsmuir at para. 47).
[21] This case raises no important question
warranting certification under paragraph 74(d) of the Act. Therefore, no
such question shall be certified.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that the application for
judicial review is dismissed.
"Robert
M. Mainville"
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