Date: 20090522
Docket: IMM-4631-08
Citation: 2009 FC 529
Ottawa, Ontario, May 22, 2009
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
GEORGE
KOWLESSAR
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 a decision of an
enforcement officer (the officer), dated October 16, 2008, in which the officer
refused the Applicant’s request for a deferral of his removal order from Canada
until his outstanding humanitarian and compassionate (H&C) grounds
application for landing from within Canada is determined.
Issue
[2]
The
only issue to be decided in the case at bar is whether the officer erred in
fact or in law, thus rendering her decision unreasonable?
[3]
The
application for judicial review shall be dismissed for the following reasons.
Factual Background
[4]
The
Applicant is a 63 year old citizen of Guyana who entered Canada as a visitor
on July 17, 1997. The Applicant’s visa was valid until July 31, 1997, but he
did not depart from Canada as he was required to under the terms of his
admission.
[5]
The
Applicant fled to Canada to escape from assaults against his family and himself
by thugs connected to the Peoples National Congress (PNC) in Guyana. The
Applicant believes his family was targeted because of their race (they are Indo-Guyanese),
their economic status (they were relatively wealthy) and because of his vocal
opposition to the PNC by way of editorials and letters to the editor in the
various newspapers.
[6]
The
Applicant’s wife died of a stroke in 1995, which he believes was caused by the
savage assault she sustained at the hands of PNC supporters. The Applicant
suffers from a disability as a result of a physical assault by the PNC and was diagnosed
with diabetes in 1999.
[7]
When
the Applicant first came to Canada, he became involved with the Salvation
Army and it was his understanding that they were helping to resolve his immigration
status. However, in 2003, he realized that he would have to take steps himself
to regularize his immigration status.
[8]
On
March 13, 2003, a report under section 44 of the Act regarding the Applicant was
signed for entering Canada with the intention of establishing permanent
residency status without first applying for or obtaining the proper immigrant
visa.
[9]
Six
years after his arrival in Canada, the Applicant applied for protection as a
Convention refugee and a person in need of protection in March 2003. The
application was heard and refused by the Refugee Protection Board on June 21,
2004. However, the Board found the Applicant to be a credible witness and
recognized that there are humanitarian and compassionate factors in his case which
merit consideration.
[10]
Having
been refused, the Applicant continued to live his life in Canada. His son
Michael had been sponsored to come to Canada by his wife in early
1995 and they had two children. The Applicant’s son Andrew had also been
accepted as a refugee and was now living in Canada with his
wife and two children. The Applicant remains very close to his sons, their
wives, and especially his grandchildren and he has no family remaining in Guyana. The
Applicant’s two other children, Philip and Debbie, live in the United
States,
while his only brother, Henry, has been living in Canada since the
1980s.
[11]
On
April 18, 2008, the Applicant attended a pre-removal interview at the Greater Toronto
Enforcement Centre (GTEC) where he was served with a Pre-Removal Risk
Assessment (PRRA) application. In addition to the PRRA, in May 2008, the
Applicant applied for landing in Canada on the basis of H&C
grounds. The H&C application remains outstanding and serves as the basis of
his request for a deferral of his removal.
[12]
On
September 18, 2008, the Applicant was notified that his PRRA application had
been refused. On September 29, 2008, direction to report for removal on October
31, 2008 was signed. With the assistance of new counsel, the Applicant updated
his H&C application and submitted sponsorship undertakings by his sons
Michael and Andrew. On October 8, 2008, he made a request for deferral of
removal pending the processing of his H&C application.
[13]
The
officer refused the Applicant’s request on October 16, 2008.
[14]
On
October 30, 2008, the Applicant was granted a stay of removal by Justice de
Montigny until final determination of his application for judicial review.
Impugned Decision
[15]
The
Applicant requested a deferral of removal from Canada based on the
fact that he has a pending application for permanent residency under H&C
grounds and a pending request for leave and judicial review of the negative
PRRA decision.
[16]
Under
section 48 of the Act, Canada Border Services Agency (CBSA) must carry out
removal orders as soon as reasonably practicable. Having considered all
available information, the officer did not feel that a deferral of the
execution of the removal order was appropriate in the circumstances. The
Applicant was expected to report for removal on October 31, 2008, as had been
arranged. The officer noted that she had little discretion to defer removal
under section 48 of the Act.
[17]
The
Applicant was aware that a decision is rendered on a PRRA application within 2
to 6 months and also that if his PRRA application was rejected, he would
receive removal arrangements for departure within 2 to 3 weeks. The Applicant
was given that timeframe to prepare himself for a positive or negative decision
and he was told to make arrangements for either eventuality.
[18]
According
to the deferral request and FOSS (Field Operational Support System), the
Applicant’s H&C application was received on May 16, 2008, more than one month
after the PRRA notification and it was sent to the local Scarborough CIC office
on August 15, 2008.
[19]
According
to a CIC Website, the processing time for Stage 1 approval of H&C
applications once they are transferred to a local CIC office is approximately
30 months. Based on the above timeframe, the officer concluded that since the
application had been only recently transferred to the local CIC office, a final
decision on the application was not imminent.
[20]
According
to the officer, the enforcement of the Applicant’s removal order does not
contravene the processing of his H&C application. The application is in the
processing queue and will be dealt with accordingly, pursuant to subsection
25(1) of the Act. The CIC Officer assigned to the Applicant’s H&C
application has jurisdiction to evaluate the factors enumerated in the H&C
application, including the reunification of families.
[21]
The
officer expressed sympathy for the Applicant’s family relations in Canada.
Nonetheless, the officer recognized that such issues lie beyond his jurisdiction
and such considerations may be better addressed in the context of the H&C
application. The officer does not have the discretion to conduct a “mini”
H&C application.
[22]
The
Applicant had also filed an application for judicial review of his negative
PRRA application. The enforcement of his removal order would not contravene his
litigation proceedings, pursuant to subsection 50(a) of the Act. Furthermore, deferral
of the enforcement of the Applicant’s removal order, based on his application
for judicial review of his PRRA application, is not warranted pursuant to
section 50(c) of the Act. The Applicant is removal ready because he has not
been granted any stay of removal under the Act, nor are there any impediments
in this removal process.
Relevant Legislation
[23]
For
ease of convenience, relevant legislative provisions referred to in these
reasons are reproduced in an Annex.
Standard of Review
[24]
The
decision to defer removal under subsection 48(2) of the Act is a discretionary
decision and requires that the officer consider any relevant factors and
circumstances unique to the particular facts of a case. There is a broad
range of circumstances to be considered (Poyanipur v. Canada (Minister of
Citizenship and Immigration) (1995), 116 F.T.R. 4, 64 A.C.W.S. (3d) 1182
(F.C.T.D.); Wang v. Canada (Minister of Citizenship and Immigration),
2001 FCT 148, [2001] 3 F.C. 682).
[25]
The
Court adopts the reasoning of the latest Supreme Court of Canada decision in Dunsmuir
v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 and finds that the proper standard of review of
an enforcement officers decision is reasonableness.
[26]
In
Dunsmuir, the Court has held that where the question is one of fact,
discretion or policy, deference will usually apply automatically. Deference
imports respect for the decision-making process of adjudicative bodies with
regard to both the facts and the law (Dunsmuir, above at paras. 47, 48,
52 and 53). An impugned decision will be reasonable if it falls within a range
of possible, acceptable outcomes which are defensible in respect of the facts and
law.
Analysis
[27]
It
is trite law that an enforcement officer’s discretion to defer removal is
limited Simoes v. Canada (Minister of
Citizenship and Immigration) (2000), 187 F.T.R. 219, 98 A.C.W.S. (3d)
422 (F.C.T.D.) at paras. 12 and 13. Furthermore, the mere existence of an
H&C application does not constitute a bar to the execution of a valid
removal order.
[28]
In
the case at bar, the Applicant sets out a number of factors which, taken
together, do not render his removal unreasonable at this time: the Applicant is
a 63 year old widower with poor health whose entire family is in Canada and the
United States; his sons have undertaken to care for him and cover his expenses;
he is very active in his church community; he has no remaining family in Guyana
and the evidence shows that conditions in Guyana can be difficult. However, a
pending H&C application on the ground of family separation does not
constitute grounds for delaying a removal.
[29]
In
the recent decision Baron v. Canada (Minister of Public Safety and Emergency
Preparedness), 2009 FCA 81, [2009] F.C.J. No. 314, the Federal Court of
Appeal dealt with the long-unsettled question of whether the judicial review of
an enforcement officer’s decision not to defer removal is moot once a Judge of
the Federal Court has granted a stay. The Court found that if an Applicant
seeks a deferral of a removal order until a particular event occurs and that
event has not yet occurred, the issue is not moot because there is an existing
controversy between the parties.
[30]
Under
subsection 48(2) of the Act, where a removal order is enforceable, any person
subject thereto must leave the country and the enforcement officer is bound to
enforce the order “as soon as is reasonably practicable”. There are a range of
factors which can validly influence the timing of removal on even the narrowest
reading of section 48, but the enforcement officer’s discretion to defer
removal remains limited. The Minister is bound by law to execute a valid
removal order and, consequently, any deferral policy should reflect this
imperative of the Act.
[31]
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 a 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.
[32]
The
Court therefore concludes that the enforcement officer’s decision to refuse
deferral of the Applicant’s removal from Canada was reasonable.
It has to be noted that in the case at bar, the applicant waited until May 2008
(11 years) before making his H&C application. It cannot be said that it
was filed in a timely matter.
[33]
No
question was proposed for certification and none arises.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be dismissed. No question is certified.
“Michel
Beaudry”
ANNEX
Immigration and Refugee
Protection Act, S.C. 2001, c. 27:
|
25. (1)
The Minister shall, upon request of a foreign national in Canada who is
inadmissible or who does not meet the requirements of this Act, and may, on the
Minister’s own initiative or on request of a foreign national outside Canada,
examine the circumstances concerning the foreign national and may grant the
foreign national permanent resident status or an exemption from any
applicable criteria or obligation of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to them, taking into account the best interests of a child directly
affected, or by public policy considerations.
|
25. (1) Le ministre doit, sur
demande d’un étranger se trouvant au Canada qui est interdit de territoire ou
qui ne se conforme pas à la présente loi, et peut, de sa propre initiative ou
sur demande d’un étranger se trouvant hors du Canada, étudier le cas de cet
étranger et peut lui octroyer le statut de résident permanent ou lever tout
ou partie des critères et obligations applicables, s’il estime que des
circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de
l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le
justifient.
|
|
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.
|
|
50. A removal order is stayed
(a) if a
decision that was made in a judicial proceeding — at which the Minister shall
be given the opportunity to make submissions — would be directly contravened
by the enforcement of the removal order;
(b) in the
case of a foreign national sentenced to a term of imprisonment in Canada, until the sentence is completed;
(c) for the
duration of a stay imposed by the Immigration Appeal Division or any other
court of competent jurisdiction;
(d) for the
duration of a stay under paragraph 114(1)(b); and
(e) for the
duration of a stay imposed by the Minister.
|
50. Il y a sursis de la mesure de renvoi dans les cas
suivants :
a)
une décision judiciaire a pour effet direct d’en empêcher l’exécution, le
ministre ayant toutefois le droit de présenter ses observations à l’instance;
b)
tant que n’est pas purgée la peine d’emprisonnement infligée au Canada à
l’étranger;
c)
pour la durée prévue par la Section d’appel de l’immigration ou toute autre
juridiction compétente;
d)
pour la durée du sursis découlant du paragraphe 114(1);
e)
pour la durée prévue par le ministre.
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