Date: 20091029
Docket: IMM-1379-09
Citation: 2009 FC 1090
Ottawa, Ontario, this 29th
day of October 2009
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
Janhun
Sufiana TURAY
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”), of the March 18,
2009 decision of Mr. Daniel Godin, the removals officer, refusing the
applicant’s request for a deferral of his removal order from Canada.
* * * * * * *
*
[2]
Mr.
Janhun Sufiana Turay (the “applicant”) is a citizen of Sierra Leone. He fled
that country for Guinea in 1996 where he remained until his departure
to Canada in 2002. He
arrived in Canada on February 13,
2002 and claimed refugee status the following day. He is currently married to
Oumou Touré, a permanent resident of Canada and they have three
children, all of whom are Canadian citizens.
[3]
The
Refugee Protection Division of the Immigration and Refugee Board (the “Board”)
dismissed Mr. Turay’s refugee claim on November 14, 2002 on the basis that he
was not credible. Mr. Turay married his first wife, Hadja Lyka Diallo on
December 4, 2002 and on February 3, 2003 filed an application for humanitarian
and compassionate considerations under paragraph 25(1) of the Act with risk of
return. This application was eventually supported by a sponsorship application
by his first wife in July 2005 (the “First Permanent Residency (“PR”) Application”).
[4]
The
Federal Court dismissed Mr. Turay’s application for leave and judicial review
of the Board’s decision on March 28, 2003. The removal order issued upon Mr.
Turay’s arrival was now enforceable. On July 18, 2006, Mr. Turay filed a
Pre-Removal Risk Assessment (“PRRA”) application claiming a risk of persecution
by rebels on the basis of religion and race if returned to Sierra Leone. The removal
order was subsequently stayed in conformity with section 232 of the Act.
[5]
On
August 7, 2006 the PRRA officer determined that the applicant faced no risk
upon his return to Sierra Leone. The couple separated in September 2006.
On October 6, 2006, a negative decision was rendered with respect to the First
PR Application on the basis that the marriage between Mr. Turay and Ms. Diallo
was not authentic.
[6]
The
negative PRRA decision was issued on November 20, 2006 and the removal order
became enforceable again. A meeting with the applicant was scheduled by the Canada
Border Services Agency (“CBSA”) Law Enforcement Officer for December 14, 2006.
At that meeting the negative PRRA decision would be communicated to the
claimant. The applicant did not show up to the meeting and a warrant was issued
for his arrest on December 20, 2006.
[7]
Almost
two years later, in September 2008, the applicant obtained a divorce from his
first wife. His son with Oumou Touré, named Barack, was born December 14, 2008.
The applicant and Oumou Touré were married on December 27, 2008. The applicant
states in his affidavit that he met Ms. Touré in 2003. They became romantically
involved shortly after they first met, despite his marriage to his first wife,
Ms. Diallo.
[8]
The
applicant applied for permanent residency in the Spouse in Canada Class with
sponsorship from Ms. Touré on February 16, 2009 (the “Second PR Application”).
A determination of this application is pending.
[9]
On
March 5, 2009 the applicant attended to the CBSA office and was arrested and
released with conditions. He received his negative PRRA decision on March 9,
2009 and his removal was scheduled for March 27, 2009. The applicant requested
an administrative stay of removal on March 10, 2009 until a final decision
on the Second PR Application is rendered. The officer denied the request.
[10]
The
applicant filed an application for leave and judicial review of the removals officer’s
decision on March 20, 2009. He was granted a judicial stay of removal on March
26, 2009. Justice Luc Martineau found that the applicant had raised a serious
issue with respect to the officer’s failure to consider the best interests of
the children.
* * * * * * *
*
[11]
The
removals officer considered the request for an administrative stay on March 17,
2009. In support of the request for deferral of his removal, the applicant
relied on the fact that he is the father of Oumou Touré’s children, he is an
indispensable presence to ensure his wife’s mental health, he plays an
important role in his children’s lives and he provides financial and moral
support for his family.
[12]
At
the outset, the removals officer acknowledged that he had taken into
consideration the best interests of the children and concluded that the factors
presented by the applicant do not justify an administrative stay.
[13]
The
specific reasons enunciated by the removals officer are as follows:
-
The applicant
has resided in Canada illegally from December 2006
to March 2009, and throughout this time period there was an outstanding warrant
for his arrest;
-
His recent
PR Application was filed after he was offered a PRRA so there is no stay of
removal pending the assessment of the PR Application; and
-
His wife’s
past has left psychological scars; however her stress has diminished since she
was granted permanent residency status. She seems to have access to a range of
organizations to assist her with the children as well as for her psychological
condition.
[14]
The
applicant merely submits that the removals officer did not properly consider
the best interests of the children in this matter.
* * * * * * *
*
[15]
The
applicable standard of review of an enforcement officer’s decision refusing to
defer an applicant’s removal from Canada is that of
reasonableness (Baron v. Minister of Public Safety and Emergency
Preparedness, 2009 FCA 81). The court should intervene if the decision of
the removals officer was unreasonable in the sense that it falls outside the
“range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, at
paragraph 47). If the court concludes there has been a faulty analysis of the
best interests of the children, the enforcement officer’s decision will be
rendered unreasonable (Kolosovs v. Minister of Citizenship and Immigration,
2008 FC 165).
[16]
The
removals officer’s source of power is subsection 48(2) of the Act which imposes
a positive obligation on the Minister to execute a valid removal order.
However, even on the narrowest reading of subsection 48(2) there are a number
of variables that can influence the timing of a removal on a practicable basis
as affirmed by Justice Denis Pelletier in Wang v. Canada (M.C.I.),
[2001] 3 F.C. 682 (T.D.). There are only two categories of factors that can
affect the officer’s decision: factual (practicable) and legal (reasonable).
This was expressed in Cortes v. Minister of Citizenship and Immigration
(2007), 308 F.T.R. 69, at paragraph 10:
. . . removal must occur as soon as
practicable, but only as soon as the practicability of the removal is
reasonable. . . .
It is well-established that the
“enforcement officer’s discretion to defer removal is limited” (Baron, supra,
at paragraph 49).
[17]
Practicable
considerations include “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” (Simoes v. Canada (M.C.I.),
[2000] F.C.J. No. 936 (T.D.) (QL) quoted in Baron, supra, at
paragraph 49; see also Hasan v. Minister of Public
Safety and Emergency Preparedness,
2008 FC 1100, at paragraph 8). In Baron, at paragraph 51, the
Federal Court of Appeal affirmed the comments in Wang, supra,
defining family hardship as a variable of low importance for a removals
officer. Indeed, Justice Pelletier stated as follows:
[48] . . . 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. . . .
[18]
In
Mauricette v. Minister of Public Safety and Emergency Preparedness, 2008
FC 420, at paragraph 23, the Court explained reasonability to be:
. . . where there are compelling
circumstances that make it necessary for the Officer to defer removal, then,
justice would require that the Officer exercise that discretion.
[19]
The
best interests of the children may constitute compelling personal
circumstances. However, the Court in Baron commented on the relevance of
the children’s best interests at paragraph 57:
. . . The jurisprudence of this Court has
made it clear that illegal immigrants cannot avoid execution of a valid removal
order simply because they are parents of Canadian-born children. . . . an
enforcement officer has no obligation to substantially review the children’s
best interest before executing a removal order.
[20]
In
Varga v. Canada (Minister of Citizenship and Immigration), [2007] 4
F.C.R. 3, the Federal Court of Appeal held, unambiguously, that the children’s
best interests are not a significant factor to be considered by the removals
officer:
[16] . . . Within
the narrow scope of removals officers’ duties, their obligation, if any, to
consider the interests of affected children is at the low end of the spectrum,
as contrasted with the full assessment which must be made on an H&C
application under subsection 25(1).
[21]
The
removals officers need only to consider the short-term interests of the
children and not in any great detail. In Munar v. Canada (M.C.I.),
[2006] 2 F.C.R. 664, Justice Yves de Montigny explicitly distinguished between
the kinds of assessments regarding the best interests of the child taken by
different types of officers under the Act:
[39] When assessing an H&C application,
the immigration officer must weigh the long term best interests of the child.
. . . Factors related to the emotional, social, cultural and physical
well-being of the child are to be taken into consideration. . . . In a
nutshell, to quote from Décary, J.A. in Hawthorne v. Canada (Minister of Citizenship and
Immigration), [2003] 2 F.C. 555 (C.A.), at paragraph
6, “the officer’s task is to determine, in the circumstances of each case, the
likely degree of hardship to the child caused by the removal of the parent and
to weigh this degree of hardship together with other factors, including public
policy considerations, that militate in favour of or against the removal of the
parent.”
[40] This
is obviously not the kind of assessment that the removal officer is
expected to undertake when deciding whether the enforcement of the removal
order is “reasonably practicable.” What he should be considering, however, are
the short-term best interests of the child. For example, it is certainly
within the removal officer’s discretion to defer removal until a child has
terminated his or her school year, if he or she is going with his or her
parent. Similarly, I cannot bring myself to the conclusion that the removal
officer should not satisfy himself that provisions have been made for leaving a
child in the care of others in Canada when parents are to be removed. This is clearly within his mandate, if
section 48 of the IRPA is to be read consistently with the Convention on the Rights of the Child.
To make enquiries as to whether a child will be adequately looked after does
not amount to a fulsome H&C assessment and in no way duplicates the
role of the immigration officer who will eventually deal with such an
application. . . .
(My
emphasis.)
[22]
It
is within this narrow construction of discretion that we must consider the
reasonability of the decision of the removals officer. The critical factor to
consider for the purposes of this application is whether the best interests of
the children were properly considered.
[23]
In
the case at bar, the applicant argues that the removals officer made no
determination as to what the best interests of the children are in this case. The
removals officer mentions only that he has turned his mind to this matter and
concluded that the application for a deferral of the removal order should be
refused.
[24]
For
his part, the respondent submits that the removals officer determined that the
children’s mother will be able to look after the children as she has access to
numerous social services organizations, and that her stress has diminished
since she was granted permanent residency status.
[25]
More
importantly, the respondent argues that there are two major reasons that
illustrate the removals officer’s decision to be reasonable. The first is that
the applicant delayed or hindered his removal from Canada, and the second
is that the timing of his application for permanent resident status came after
the removal order was enforceable.
[26]
Despite
my concerns with how the removals officer considered and weighed the evidence
before him, I adopt the respondent’s reasoning. I find that the decision was a
possible outcome, that the best interests of the children were considered and
that a reviewing court, in the circumstances, ought not re-weigh the evidence
of the decision-maker.
* * * * * * *
*
[27]
For
all the above reasons, the application for judicial review will be dismissed.
JUDGMENT
The application for judicial
review of the March 18, 2009 decision of Mr. Daniel Godin, wherein he refused the
applicant’s request for a deferral of his removal order from Canada, is dismissed.
“Yvon
Pinard”
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