Docket: IMM-6156-11
Citation: 2012 FC 382
Ottawa, Ontario, April 2,
2012
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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SINNAIA SORUBARANI
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, (SC 2001, c 27) [IRPA],
for judicial review of the decision rendered by the Enforcement Officer A. Wong
(the Officer) of the Canada Border Services Agency, on August 31, 2011,
refusing Sinnaia Sorubarani’s (the Applicant) application to defer the
execution of the removal order issued against her.
[2]
For
the following reasons, this application for judicial review is dismissed.
II. Facts
[3]
The
Applicant is a citizen of Sri Lanka.
[4]
She
arrived in Canada on June 20,
2000, and immediately filed a refugee claim. Both her refugee application and
application for judicial review before this Court were refused.
[5]
The
Applicant subsequently filed a Post-Determination Refugee Claimants in Canada
Class [PDRCC] application. Her application was refused in October 2001 and the
Applicant was scheduled for removal to the United States on November
27, 2001. She failed to appear and an arrest warrant was issued against her. It
remained in effect until September 1, 2004.
[6]
In
January 2003, the Applicant filed a Pre-Removal Risk Assessment [PRRA]
application that was also refused in April 2008. She then filed an application
for judicial review of the PRRA decision which was allowed in December 2008.
Additionally, a stay of removal was granted in June 2008.
[7]
In
February 2009, the Applicant filed an application for permanent residence under
Humanitarian and Compassionate [H&C] grounds. This application is still
pending.
[8]
Her
PRRA application was denied and she filed an application for leave and judicial
review of her negative PRRA decision that was dismissed in August 2009. She
also filed a motion to stay her removal scheduled for April 9, 2009. Her motion
was dismissed and the Applicant was removed to the United States. Upon her
arrival in the United States, the Applicant filed a claim for asylum
that was rejected on the basis of her lack of credibility. Consequently, she
was refused admission to the United States and was obliged to
return to Canada on June 15,
2009.
[9]
The
Applicant was once more scheduled for removal and was to be deported on
September 17, 2011. She filed a motion for stay that was granted on August 31,
2011.
III. Legislation
[10]
Section
48 of the IRPA provides as follows:
Enforceable removal order
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Mesure de renvoi
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48. (1) A removal order is enforceable if it has come into
force and is not stayed.
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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.
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Effect
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Conséquence
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(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.
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(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.
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IV. Issue and
standard of review
A.
Issue
[11]
The
Applicant casts the issue to be determined as follows: Did the Immigration
Officer breach the duty of fairness in failing to consider the evidence in its
entirety in his refusal of the Applicant’s request for deferral of the removal
order and reaching an unreasonable decision?
[12]
The
Applicant does not argue the issue of procedural fairness. Therefore, the Court
phrases the issue as follows:
·
Did the officer err in not deferring the
applicant’s removal until her H&C application was decided?
B.
Standard
of review
[13]
It
is established jurisprudence that “The appropriate standard of review of a removal officer's decision on a deferral
request is reasonableness (see Ortiz
v Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC
18, [2012] FCJ No 11 at para 39; Turay v Canada (Minister
of Public Safety and Emergency Preparedness), 2009 FC 1090, [2009] FCJ No 1369
at para 15).
[14]
In reviewing the officer's decision using a standard of
reasonableness, the Court will consider “the existence of justification,
transparency and intelligibility within the decision-making process” and
“whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir v New
Brunswick, 2008 SCC 9 at para 47 [Dunsmuir]).
V. Parties’ submissions
A.
Applicant’s
submissions
[15]
The
Applicant submits that sufficient H&C grounds exist and that a decision is
imminent because her application was filed 30 months ago. She claims that the
average processing time for humanitarian and compassionate cases is 20 months
based on the Citizenship and Immigration website. According to the Applicant,
the Officer’s failure to consider the foregoing is unreasonable and warrants
the intervention of this Court.
[16]
The
Applicant mentions that her H&C application was sent to the backlog
reduction office and is still pending. In Simoes v Canada (Minister of
Citizenship and Immigration), [2000] FCJ No 936 at para 12 [Simoes],
the Court held that “a removal officer may consider various factors such as
illness, other impediments to travelling, and pending H&C applications that
were brought on a timely basis but have yet to be resolved due to backlogs in
the systems”.
[17]
The
Applicant further submits that her pending H&C application is likely to
succeed considering the fact that she has close family in Canada and none left
in Sri
Lanka.
The Applicant does not have any emotional or physical support in Sri Lanka. Moreover,
her son provided an affidavit indicating that the H&C application is based
on his sponsorship agreement to support the Applicant.
[18]
The
Applicant alleges that the Officer failed to use her discretion, consider her
outstanding H&C application and allow the Applicant to remain in Canada.
B.
Respondent’s
submissions
[19]
The
Respondent responds that the Officer’s decision was reasonable. He mentions
that the only serious issue alleged by the Applicant is her pending H&C
application. The Officer considered the issue and found that it did not warrant
a deferral of removal.
[20]
Abundant
jurisprudence exists on that issue; according to the Respondent, an outstanding
application is not, by itself, a reason for stay of removal (Kim v Canada
(Minister of Citizenship and Immigration), 2003 FCT 321; Akyol v Canada
(Minister of Citizenship and Immigration), 2003 FC 931 at para 11; Selliah
v Canada (Minister of Citizenship and Immigration), [2004] FCJ No 1200
(FCA); El Ouardi v Canada (Solicitor General), 2005 FCA 42; Sivagnanansuntharam
v Canada (Minister of Citizenship and Immigration), 2004 FCA 70 (FCA); Tesoro
v Canada (Minister of Citizenship and Immigration), 2005 FCA 148 (FCA); Owusu
v Canada (Minister of Citizenship and Immigration), 2004 FCA 38 [Owusu]).
[21]
The
Respondent disagrees with the Applicant that her H&C application was filed
in a timely manner. She submitted an application for permanent residence on
H&C grounds more than 8 years after arriving in Canada. According
to the Respondent the Applicant ought to have regularized her status years ago.
There is also no evidence that a backlog has given rise to a delay in the
processing of the Applicant’s H&C application even though her application
was sent to the Backlog Reduction Office for further processing.
[22]
Additionally,
the Respondent alleges that the effect of separation on an applicant’s family,
and financial hardship that separation would impose do not meet the narrow
scope of an Enforcement Officer’s discretion (see Tran v Canada (Minister of
Public Safety and Emergency Preparedness), 2006 FC 1240 at para 25). Family
hardship and disruption of family life are unfortunate consequences of removal
but are not determinative (see Baron v Canada (Minister of
Public Safety and Emergency Preparedness), 2009 FCA 81 at para 49
[Baron]).
[23]
Finally,
the Respondent submits that since the Applicant failed to raise the argument
that she would be subject to extortion at the hands of paramilitary groups in Sri Lanka before the
Officer. The Applicant cannot challenge the reasonableness of the decision
based on such an allegation (see Owusu at para 9; Lemiecha v Canada (Minister of
Employment and Immigration), [1993] FCJ No 1333 at para 4).
VI. Analysis
[24]
The
Court must keep in mind that a Removal Officer has a very limited discretion
(see Baron cited above, at para 69). The Minister is bound by
section 48 of the IRPA to execute a valid removal order with little
discretion on the timing of that removal. A pending H&C application will
not justify deferral unless it is based on a threat to personal safety (see Baron
at paras 49 and 51).
[25]
Furthermore,
in deciding whether a removal is reasonably practicable, “a Removal Officer may
consider various factors such as illness, other impediments to travelling and
pending H&C applications that were brought on a timely basis but have yet
to be resolved due to backlogs in the system” (see Baron at paras 49, 67-68;
Simoes at para 12 and Wang v Canada (Minister of Citizenship and
Immigration), [2001] 3 FC 682 (FC)).
[26]
In
considering the duty to comply with section 48, the availability for an
alternate remedy, such as an applicant’s right to return to Canada, should be
given great consideration. Cases where the only harm is family hardship can
easily be remedied with the readmission of an applicant to Canada (see Baron
at para 51; Furtado v Canada (Minister of Public
Safety and Emergency Preparedness), 2011 FC 963 at paras 30-33).
[27]
In
the present case, the Applicant argues that her H&C application is to be
determined imminently and that the Officer should have deferred her removal on
the basis that her application has been pending for more than 30 months. The
Officer wrote in his decision: “there is insufficient evidence before me to
indicate that the application will be determined imminently, that the pending
H&C application should warrant a deferral of removal” (see Officer’s
decision at page 5 of the tribunal record).
[28]
In
Jonas v Canada (Minister of Citizenship and Immigration), 2010 FC
273, [2010] FCJ No 317, the Court wrote, in paragraph 21 of its decision:
. . . in many cases, the imminence of a
decision may be a reflection of whether the application had been filed in a
timely manner. In this case, the officer does not indicate whether, in his
view, the H&C application was
filed in a timely manner; however, it is of note that the applicant did not
file it until almost five years after the rejection of his refugee claim by the
RPD. The officer concluded that a decision was not imminent even though the
application had been transferred to the local CIC Office. The officer's
determination that the pending H&C
application did not warrant his exercise of discretion was reasonable.
[29]
It
was open to the Officer to consider the imminence of a decision in the pending
H&C application. However, the Officer could not entertain such a
consideration because no evidence was adduced by the Applicant to that effect.
Even though the Officer did not determine whether or not the Applicant had
filed her H&C application in a timely manner, the Court notes that the
Applicant waited almost 8 years after the rejection of her PDRCC application
and 6 years after she had applied for her PRRA application.
[30]
In
addition, the Officer acknowledged the fact that the Applicant may face
hardship in Sri
Lanka.
The Officer determined that family hardship, though inevitable, is not a valid
reason to justify deferral of removal. This conclusion is reasonable.
[31]
“H&C applications are not intended to
obstruct a valid removal order. Where a PRRA has revealed that the applicants
are not at risk if they are returned, then the applicants are intended to make
future requests for permanent residence from their home country” (see Baron
at para 87).
[32]
Given the applicant's
lengthy immigration history and her failure to file her H&C application in
a timely manner, the decision of the Officer not to defer by reason of the
pending H&C is justifiable. Family hardship is not a valid reason to defer
a removal order. For the above reasons, this application for judicial review is
dismissed.
VII. Conclusion
[33]
The
Officer reasonably concluded that there was insufficient evidence to
demonstrate that a determination of the Applicant’s H&C application is
imminent. Furthermore, the Applicant failed to file her H&C application in
a timely manner, therefore a deferral of her removal to Sri Lanka is not justified. The
Officer properly determined that family hardship, although inevitable, is not
sufficient in this instance to defer the Applicant’s removal. The Officer’s
decision “falls within the range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (see Dunsmuir at para 47).
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1.
The
Applicant’s application for judicial review is dismissed; and
2.
There
is no question of general interest to certify.
"André
F.J. Scott"
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