Date: 20100730
Docket: IMM-4721-09
Citation: 2010 FC 795
Ottawa, Ontario, July 30,
2010
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
ALI
ABADIR
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Mr.
Abadir Ali applies for judicial review of the June 30, 2009 decision of the
Enforcement Officer (the Officer) dated September 21, 2009 refusing the
Applicant’s request for a deferral of his removal from Canada.
[2]
Mr.
Abadir Ali was the subject of a Danger Opinion by the Minister’s Delegate who
concluded the Applicant would neither face a serious possibility of
persecution, nor risk to his life or cruel or unusual treatment on being
returned to Somalia.
[3]
The
Canada Border Services Agency notified him that his removal was scheduled for
September 22, 2009. He requested a deferral of his removal on September 21,
2009. The Officer refused the request.
[4]
Mr.
Abadir Ali submits there is new evidence not before the Minister’s Delegate of
a dramatic change in country conditions that would expose him to risk of death
or inhumane treatment if he is removed to Somalia.
Background
[5]
On
June 30, 2009, the Minister’s Delegate found the Applicant to be a danger to the
Canadian public because of his adult criminal history, his failure to abide with
release orders and the low potential of his rehabilitation. The Delegate
assessed the danger to the public should he remain in Canada against the
risk the Applicant would face if removed to Somalia. The
Delegate acknowledged the situation in Somalia was volatile,
but she concluded it was dangerous for all Somalis and the Applicant would not
face any particularized risk.
[6]
The
Applicant was scheduled for removal to Somalia on September
22, 2009. He was to be escorted by CBSA officers from Montreal to Nairobi, Kenya and
accompanied to the point of departure for Mogadishu, Somalia. He was to
be provided with 150 Euros so he could make his way to Hargesia, Somaliland, in
northeastern Somalia.
[7]
The
Applicant requested an indefinite deferral of his scheduled removal on
September 20, 2009. The request for deferral was refused by the Officer on
September 21. The Applicant sought a stay of his removal pending his
application for leave and judicial review of the Danger Opinion and the Removal
Order.
[8]
At
the stay hearing Justice Lemieux raised a question about the situation in Mogadishu
given the recent decision in Aden v. Canada (Citizenship and
Immigration), 2009 FC 561. In Aden there was a serious issue as to whether
that applicant had a viable internal flight alternative as the PRRA officer
relied on dated materials and other documentary evidence without regard or
analysis to the current actual state in Mogadishu. Justice Lemieux
ordered a short interim stay.
[9]
On
resumption of Mr. Abadir Ali’s stay hearing, CBSA officials submitted a revised
Removal Order with new travel arrangements re-scheduling removal for September
24 and a different itinerary. The Applicant would be escorted by CBSA officials
to Nairobi, Kenya, and then he
would travel by direct flight to Bossao in the north of Somalia in the company of
private security.
[10]
Justice
Lemieux issued his decision on October 1, 2009 staying the removal until a
decision on leave and, leave being granted, the hearing of the application for
judicial review of the deferral refusal.
[11]
Leave
was granted and both applications for judicial review of the Danger Opinion and
the refusal of the deferral request were combined. I heard both applications on
April 28, 2010. I had allowed the parties additional time for further
submissions with respect to the revised travel arrangements. My decision on the
application for judicial review of the Danger Opinion in IMM-3998-09 is issued
by way of a separate judgment issued concurrently with this decision on the
refusal of the deferral request. I have dismissed the application for judicial
review of the Danger Opinion.
Decision
Under Review
[12]
The
Officer began by noting the reasons the Applicant presented on September 20th
for requesting indefinite deferral. Those reasons are:
i.
Since
Danger Opinion issued, the country conditions changed. The Applicant is at risk
in returning to Somalia due to new circumstances
occurring within the last two months. The Applicant’s removal should be
deferred until a new determination of a risk assessment.
ii.
Since the
Danger Opinion was issued, the conditions in Somalia have changed. These new circumstances
allegedly put the Applicant at greater risk than was foreseen in the Danger Opinion.
iii.
The
Applicant should be allowed an opportunity for rehabilitation.
[13]
The
submission to the Officer in support of the Applicant’s deferral request
consisted of affidavits of individuals or petitions either identifying risk to
the Applicant on return to Somalia or offers to help the
Applicant rehabilitate and documentary material reporting on instability in the
Somaliland region. The Officer also had the June 30, 2009 Danger Opinion before
him.
[14]
The
Officer noted that it was not within his authority to make a proper
determination of risk an applicant may face on return. He noted the balancing
of risk has already been addressed in the Danger Opinion.
[15]
The
Officer concluded the new information would not influence the balance of risk
previously conducted. He was unable to grant a deferral without an alternative
date because any such deferral would be for an indefinite period.
[16]
The
Officer concluded that he was not satisfied a deferral of the removal order was
appropriate under the circumstances.
Legislation
[17]
The IRPA
provides:
Immigration and Refugee Protection Act, (2001, c. 27)
|
48. (1) A
removal order is enforceable if it has come into force and is not stayed.
(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.
|
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.
(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.
|
Canadian
Charter of Rights and Freedoms¸
Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11.
|
1. The
Canadian Charter of Rights and Freedoms guarantees the rights and freedoms
set out in it subject only to such reasonable limits prescribed by law as can
be demonstrably justified in a free and democratic society.
…
7. Everyone
has the right to life, liberty and security of the person and the right not
to be deprived thereof except in accordance with the principles of
fundamental justice.
|
1.
La Charte canadienne des droits et libertés garantit les droits et libertés
qui y sont énoncés. Ils ne peuvent être restreints que par une règle de
droit, dans des limites qui soient raisonnables et dont la justification
puisse se démontrer dans le cadre d'une société libre et démocratique.
…
7.
Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne
peut être porté atteinte à ce droit qu'en conformité avec les principes de
justice fondamentale.
|
Issues
[18]
The Applicant raises the following issues:
1.
Whether the Officer
misapprehended the evidence before him or ignored it and fettered the scope of
his discretion to defer in appropriate circumstances?
2.
Did the Officer err
in refusing to defer the Applicant’s removal where failure to defer will expose
the Applicant to the risk of death or inhumane treatment in circumstances in Somalia?
3.
Whether the travel
and removal arrangements put in place for the Applicant’s removal compatible
with the principles of fundamental justice guaranteed by section 7 of the Canadian
Charter of Rights and Freedoms?
4.
Do the new travel
arrangements confirm that the original removal arrangements to Mogadishu presented a personal risk to the Applicant?
[19]
The Respondent treats
the issue as:
1.
Was the Officer’s
decision reasonable?
2.
Is the alteration of
the modality of removal relevant to the judicial review of the decision?
[20]
In my view, the
issues arising in this judicial review of the refusal to defer are:
1.
Did the Officer
fetter his discretion in deciding to refuse the Applicant’s request for
deferral?
2.
Was
the Officer’s decision reasonable?
Standard of Review
[21]
The
Supreme Court of Canada found in Dunsmuir
v. New Brunswick, 2008 SCC 9 (Dunsmuir) that
questions of fact and mixed questions of fact and law should be afforded a
degree of deference and reviewed on a standard of reasonableness.
[22]
The
Federal Court of Appeal in Baron v. Canada (Minister of Public Safety
and Emergency Preparedness), 2009 FCA 81 held that the applicable standard
of review for cases concerning deferrals of removal is reasonableness.
[23]
The
Supreme Court developed the notion of reasonableness in Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC 12 (Khosa).
Significant deference is owed the Minister’s Delegate for his findings of fact
and weighing of evidence. The Court wrote at para. 59:
“Reasonableness is a single standard that
takes its colour from the context. One of the objectives of Dunsmuir was to
liberate judicial review courts from what came to be seen as undue complexity
and formalism. Where the reasonableness standard applies, it requires
deference. Reviewing courts cannot substitute their own appreciation of the
appropriate solution, but must rather determine if the outcome falls within
"a range of possible, acceptable outcomes which are defensible in respect
of the facts and law" (Dunsmuir, at para. 47). There might be more than
one reasonable outcome. However, as long as the process and the outcome fit
comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome.”
[24]
The application of
the Charter is a question of law reviewable on the standard of
correctness. (Dunsmuir)
Analysis
Did the
Officer fetter his discretion in deciding to refuse the Applicant’s request for
deferral?
[25]
The
Applicant submits the Officer fettered his discretion by refusing to reconsider
the risk Mr. Abadir Ali might face upon removal to Somalia. Their
allegation is based on the following in the Officer’s reasons:
Mr. Abadir Ali’S [sic] was found to be a
Danger to the Public by the Minister of Citizenship and Immigration Canada in
June 2009. It is important to note that this Danger Opinion supersedes any risk
Mr. ABIDER faces upon his return to Somalia.
[26]
I
do not agree that the statement confirms the Officer was limiting the scope of
his discretion in considering the Applicant’s deferral request. The Officer
clarifies his understanding when he goes on to state the balancing of the risk
of return to Somalia and the danger to the public has already been addressed in
the Danger Opinion.
Was
the Officer’s decision reasonable?
[27]
The
Applicant requested an indefinite deferral in part to have an opportunity to
rehabilitate.
[28]
The
Officer’s duty arises from section 48 of IRPA. In Baron, Justice Marc Nadon
found enforcement officer’s degree of discretion to defer is significantly
limited by Section 48(2) of the Act which requires the execution of removal “as soon as is reasonably
practicable.”
[29]
The
language of section 48 does not allow for an indefinite deferral. Given this
narrow discretion, the Officer is complying with his duty by refusing to
consider an indefinite deferral.
[30]
The
Applicant also requested the delay to allow for a reassessment of risk or until
conditions in Somalia improve.
[31]
The
Applicant submitted country conditions had worsened in the two months before
the deferral request and the result was increased risk to the Applicant in
regards to a return to Somaliland. In support of his submission he provided
affidavits, a petition and documentary evidence of risk in Somaliland via Mogadishu. The
affidavits address risk to the Applicant in Somalia. The
documentary evidence identifies Somaliland as more secure than Somalia but facing a
rising threat of instability.
[32]
Finally,
the Applicant submits the Respondent’s last-minute change of travel
arrangements in September of 2009 confirms the original travel arrangements
posed a risk and the Officer’s refusal to deny the deferral request was
therefore flawed.
[33]
The
Respondent submits the Officer’s decision was reasonable. He is legally bound
to execute removal orders expeditiously. The Respondent adds the Officer was
not obliged to asses risk to the Applicant on return. He considered the
material before him and came to a reasonable decision.
[34]
The question I have to answer is whether
the Officer should have considered the risk inherent in the travel arrangements
made for the Applicant? In my view he should have.
[35]
The
Minister’s Delegate had considered the risk to the Applicant on removal to Somalia and found
that, on the evidence before her, the Applicant did not face any greater risk
than other Somalis. That assessment was made as of June 30, 2009. In coming to
her conclusion, the Minister’s Delegate acknowledged the situation in Somalia was
“volatile”.
[36]
The
Officer in his decision on September 21, 2009 stated he considered the
Applicant’s evidence and documentation and stated it would not influence the
balance of risk conducted by the Minister’s Delegate. The Officer makes no
reference to the travel arrangements for the Applicant in Somalia.
[37]
The
issue raised in Aden was the risk applicants would face on
arrival in Mogadishu and the travel from there to their ultimate destination in
Somalia. The documentary
evidence adduced, particularly the recent travel advisories, established the possibility
of serious risk to that applicant such as to establish the prospect of
irreparable harm. Aden involved a stay application contemporary
with the Applicant’s deferral request but does not appear to have been brought
to the Officer’s attention.
[38]
After
this issue was raised in this Applicant’s stay application, the travel
arrangements for the Applicant were changed to avoid Mogadishu by routing him to Bossao
in the north of Somalia.
[39]
In
Baron Justice Nadon referred to two earlier decisions. He reiterated
what he stated in Simoes v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 936 at para. 12 that “… a removal officer
may consider various factors such as illness, other impediments of
travelling, and pending H & C applications that were brought on a
timely basis but have yet to be resolved…” (emphasis added). Given the very
different aspects of “illness” and “pending H&C applications”, I take it
that “other impediments of travelling” may involve circumstances other than an
applicant’s personal circumstances.
[40]
In
addition, Justice Nadon endorsed, without reservation, Justice
Pelletier’s description the limits of an enforcement officer’s jurisdiction to
grant deferrals in Wang v. Canada (Minister of Citizenship and
Immigration), [2001] 3 F.C. 682 at paras. 45 and 48, stating in part, at
paragraph 51:
…
The Minister is bound by law to execute a
valid removal order and consequently, any deferral policy should reflect this
imperative of the Act.
…
…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. …
(emphasis added)
[41]
I
take from these findings that an enforcement officer, who regularly deals with
and is knowledgeable about travel arrangements made to execute removal orders,
may consider risk arising from the modality of those arrangements. Such a
deferral is not to repeat the delegate’s risk assessment with respect to refoulement,
but to decide whether to defer an order to reassess risks as they may emerge in
volatile regions and only with respect to travel arrangements.
[42]
In
his submissions to the Officer, the Applicant’s counsel quoted from the
decision of Justice Frederick Gibson in Saini v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 982 at para. 19:
I conclude that the “broad range of
circumstances” that Madame Justice Simpson found to be contemplated by section
48 of the Immigration Act includes discretion to consider whether it is
reasonable to defer the making of removal arrangements pending a risk
assessment and determination. Accordingly, it follows that a removal officer
may have regard to cogent evidence of risk in removal to a particular
destination and as to whether or not an appropriate risk assessment has been
conducted and evaluated, solely for the purpose of informing his or her
discretion regarding deferral.
(emphasis added)
[43]
The
Applicant has put the question of risk arising from travel arrangements before
the Officer. It was incumbent upon the Officer to consider the risk arising
from the travel arrangements for the purpose of informing his discretion
regarding deferral.
[44]
The
Officer, in his reasons, makes no reference to any risk arising from the travel
arrangements routing the Applicant through Mogadishu. In doing
so, I find he failed to consider a central and important aspect of the deferral
request, Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1425 at para. 27.
[45]
I
conclude the Delegate’s decision was unreasonable for his failure to address
the risks inherent in the original travel arrangements made for the Applicant’s
removal.
[46]
The
travel arrangements for the Applicant were changed subsequent to the Officer’s
decision not to defer his removal. This would tend to suggest the Officer’s
decision rested on old facts.
[47]
In
light of the changed travel arrangements, the acknowledged volatility of the
situation in Somalia and the
passage of time since the June 30, 2009 risk assessment was conducted, it is
appropriate new arrangements for Mr. Abadir Ali’s repatriation be made.
[48]
The
application for judicial review succeeds.
[49]
The
Applicant has effectively achieved his objective of obtaining a deferral of his
September 22, 2009 removal. Any request for further deferral may include
consideration of the risks he faces on his journey to his final destination
within Somalia. To be
clear, this relates to risk arising from travel and it does not include a new
risk assessment concerning refoulement to Somalia.
[50]
Neither
the Applicant nor Respondent has proposed a general question of importance for
certification.
Conclusion
[51]
The
application for judicial review is granted.
[52]
I
make no order for certification of a general question of importance.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
The
Application for judicial review is granted.
2.
I
make no order for certification of a general question of importance.
“Leonard
S. Mandamin”
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