Date: 20090304
Docket: IMM-908-08
Citation: 2009 FC 231
Toronto, Ontario, March 4, 2009
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
BERNICE
MAY WATSON
Applicant
and
THE MINISTER OF PUBLIC SAFETY
(CANADA BORDER SERVICE AGENCY) and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ms.
Bernice May Watson (the “Applicant”) seeks judicial review of the decision of
an Enforcement Officer, Canada Border Services Agency (the “Officer”) dated
February 25, 2008. In that decision, the Officer refused the Applicant’s
request to have her removal from Canada deferred, which removal
had been scheduled for February 29, 2008.
[2]
By
Order dated February
25, 2008,
Justice Kelen stayed the execution of the removal order. He found that the
refusal to defer was based on a patently unreasonable finding made by the
Officer, that is the finding that there was no evidence presented to show that
the Applicant’s husband was incapable of or unwilling to care for or arrange
care of his sons and further, that there was an outstanding application based
on humanitarian and compassionate circumstances concerning the Applicant’s
rehabilitation after her conviction for possession of narcotics and fraud over
$5,000.00, as well as the care of her Canadian born children.
[3]
The
Applicant, a citizen of Jamaica, entered Canada in September
1986. In August 1991, a deportation order was issued against her.
[4]
In
March 1998, the Applicant was convicted of possession of narcotics. In April
2001, she was convicted of fraud over $5,000.00. In May 2002, her first H.
& C. application was rejected on grounds of criminality.
[5]
In
June 2006, the Applicant filed a Pre-Removal Risk Assessment (“PRRA”)
application. In February, she was directed to report for removal on March 1, 2007. She failed
to appear and went into hiding. She was arrested on January 18,
2008
and placed in immigration detention.
[6]
On
March
16, 2007
the Applicant began a second H. & C. application.
[7]
In
April 2007, the Applicant’s PRRA application was refused.
[8]
The
Applicant was again directed to appear for removal on February 29,
2008.
Her request to defer removal had been denied by the Officer on February 25, 2008. In her
decision, the Officer noted that there was no evidence about the ability or
willingness of the Applicant’s husband to care for their Canadian-born
children.
[9]
The
Applicant sought leave to file a further affidavit in response to the further Memorandum
filed by the Minister of Citizenship and Immigration (the “Respondent”). In
this affidavit, which was filed by leave of the Court, the Applicant deposed
that she now holds a work permit issued on April 4, 2008 and authorizing her to
work until April 3, 2009.
[10]
Two
issues arise from this application. First, is the application moot and if so,
should the Court exercise its jurisdiction to hear it on the merits? Second, if
the matter is heard on the merits, did the Officer commit a reviewable error?
[11]
Both
parties addressed the issue of mootness. I note in particular, the submissions of
the Respondent that the Court should exercise its discretion to hear the
matter, having regard to the test in Borowski v. Canada (Attorney
General),
[1989] 1 S.C.R. 342.
[12]
The
Respondent argued that the parties remain in an adversarial relationship, that
the resources of the Court have already been expended, that a hearing date had
been set and submissions filed. A decision on the merits would avoid a
continuing pattern of removal dates, stay motions and judicial reviews. Third,
a decision on this matter would raise no concern about this Court’s proper
adjudication role as the arguments are limited and could provide guidance to removals
officers in the future in exercising their limited discretion to defer removal.
[13]
The
Respondent argues that the decision of the removals officer is reasonable.
[14]
For
her part, the Applicant submits that in asking the Court to hear this matter,
the Respondent is demonstrating his continuing intention to remove her,
notwithstanding the fact that she now holds a valid temporary work permit. She
says that this means that she now has status in Canada.
[15]
In
any event, the Applicant also argues that the Officer’s decision is not reasonable.
She says that the officer’s finding that there was no evidence about the
father’s ability or willingness to look after her children is contrary to the
evidence that was submitted with the deferral request.
[16]
Further,
the Applicant submits that the Officer breached the requirements of procedural
fairness by failing to provide adequate reasons for her decision.
Discussion and
Disposition
[17]
The
matter is moot because the date of removal has passed. In this regard, see Baron
v. Canada (Minister of
Public Safety and Emergency Preparedness (2008), 69 Imm. L.R.
(3d) 293 (F.C.). The removal order remains effective, only its execution has
been delayed as the result of the stay Order made on February 28, 2008.
[18]
In
Weekes (Litigation Guardian of) v. Canada (Minister of
Public Safety and Emergency Preparedness), 73 Imm. L.R. (3d) 294
(F.C.), at paragraphs 33 to 35 I discussed the basis for the exercise of
discretion when a matter is moot, in light of the principles discussed in Borowski.
[19]
I
accept the submissions of the Respondent regarding the exercise of my
discretion. The principal factor in that regard is that removals officers may
benefit from judicial review regarding their limited discretion to defer
execution of a removals order, pursuant to subsection 48(2) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 which provides as follows:
|
Effect
48.(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.
|
Conséquence
48.(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.
|
[20]
I
am satisfied that I should hear this case and deal with the decision of the
Officer on its merits. In light of prior jurisprudence as to the appropriate
standard of review to be applied to a decision to refuse deferral, I refer to
the instructions given by the Supreme Court of Canada in Dunsmuir v. New
Brunswick,
[2008] 1 S.C.R. 190. In my opinion, the applicable standard of review is that
of reasonableness.
[21]
The
Officer’s decision contains the following statement:
No evidence
presented that Mr. Hanslip in [sic] incapable or unwilling to care for
or to arrange for care for his sons.
[22]
This
statement is unreasonable. It is not supported by the evidence. The evidence is
open to interpretation and the Officer failed to do that. The task of the
Officer is to engage in a limited weighing of the evidence. A broad statement
that there is “no evidence” when the record shows otherwise is unreasonable and
will serve only to invite avoidable proceedings before this Court.
[23]
Although
my finding as to the reasonableness of the Officer’s decision is sufficient to
allow this application, I choose to comment upon the Applicant’s submissions
concerning her status in Canada.
[24]
The
Applicant holds no status in Canada as a result of having been issued a temporary
worker’s permit. That is clear from the Immigration and Refugee Protection
Regulations, SOR/2002-227, section 202, as follows:
|
Temporary
resident status
202. A foreign national who is issued a work permit under
section 206 or paragraph 207(c) or (d) does not, by reason only
of being issued a work permit, become a temporary resident
|
Statut de résident temporaire
202. L’étranger qui se voit délivrer un permis de travail au
titre de l’article 206 ou des alinéas 207c) ou d) ne devient
pas, de ce seul fait, résident temporaire.
|
[25]
In
the result, this application for judicial review is allowed and the decision of
the Officer is quashed. There is no question for certification arising.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is allowed and the decision of the Officer
dated February 25, 2008 is quashed, no question for certification arising.
“E. Heneghan”
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