Date: 20110729
Docket: IMM-85-11
Citation: 2011 FC 963
Ottawa, Ontario, July 29,
2011
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
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PAULO JORGE MOTA FURTADO
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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
Introduction
[1]
The Applicant, Paulo
Jorge Mota Furtado, applies for judicial review of the decision of the Inland
Enforcement Officer (the Officer) not to defer the execution of the Applicant’s
removal from Canada scheduled for January 8, 2011.
[2]
The Applicant submits
that the Officer failed to exercise his discretion in a reasonable and
equitable manner and that the Officer made an erroneous finding of fact. The
Applicant submits the Officer did not properly consider the Applicant’s request
for an extension of time to care for his gravely ill father, to provide for the
best interests of his children and also to allow consideration of his application
for permanent residence based on humanitarian and compassionate (H&C)
grounds. The Applicant further submits the Officer erred in concluding the
Applicant was on welfare, when the evidence did not support that conclusion.
[3]
I am dismissing this
application for judicial review as I do not see any reviewable error made by
the Officer in coming to his conclusion.
Background
[4]
The Applicant came to Canada on February 3, 1991 at the age of 12 and is a
permanent resident. Between the years 1999 to 2007, he was convicted of a number
of criminal charges ranging from driving while impaired, assault, trafficking,
mischief, obstructing a peace officer, and failure to comply with probation
order. On November 1, 2007, a report was written finding him inadmissible on
the grounds of serious criminality. A removal order was issued on July 9,
2008. This was appealed to the Immigration Appeal Division, which granted a
stay of the removal order. On January 14, 2010, the Applicant was convicted of assault causing
bodily harm. After a hearing, the stay order was cancelled on October 28,
2010.
[5]
The Applicant made an
application for permanent residence on humanitarian and compassionate grounds
in October 2010. The Applicant also submitted a Pre-Removal Risk Assessment
(PRRA) application, which received a negative decision on December 1, 2010.
[6]
Around the same time,
the Applicant requested deferral of the removal order on the humanitarian basis
that the Applicant had to care for his father who was seriously ill, as well as
for the best interest of his children who resided with their mother. He also
advanced his request on the basis of his outstanding H&C application and
the hardship he would face in Portugal because of problems finding housing and
employment.
[7]
The Applicant’s removal
was scheduled for January 8, 2011. The Officer refused the request for deferral.
Subsequently a stay of removal was granted pending judicial review of the
Officer’s decision.
Decision Under Review
[8]
The
Officer refused the Applicant’s
request concerning a deferral of his removal from Canada on December 30, 2010. The Officer wrote: “The Canada Border Services
Agency (CBSA) has an obligation under section 48 of the Immigration and Refugee
Protection Act to enforce removal orders as soon as reasonably practicable. Having
considered your request, I do not feel that a deferral of the execution of the
removal order is appropriate in the circumstances of this case.”
[9]
In the accompanying Notes
To File, the Officer wrote that inland enforcement officers had little
discretion to defer removal but if one did choose to exercise this discretion,
he must do so while continuing to enforce a removal order as soon as reasonably
practicable.
[10]
Regarding the
Applicant’s father’s illness, the Officer found there was another family member
in Canada, the Applicant’s sister, and there was insufficient
evidence to demonstrate that she would not be able to help assist her parents
in the Applicant’s absence. The Officer recorded that during the interview the
Applicant had stated that he was unemployed, receiving social assistance and
was being supported by his mother. The Officer concluded that he would not be
able to financially support his parents.
[11]
The Officer noted the
Applicant’s submissions regarding the best interests of his two children. The
Officer observed, however, that the Applicant’s children live with their
mother, and they would continue to have her support after the Applicant’s
removal.
Since the Applicant’s children
would remain in Canada, the Officer concluded that they would
have access to all the services available to all Canadians and they therefore
would have “every opportunity to be capable individuals.”
[12]
The Officer found that
there was insufficient evidence to demonstrate that a decision on his H&C
application was imminent. The Officer noted the CBSA agrees to grant temporary deferrals of
removals to applicants applying for H&C applications, but that the policy
will not be granted to applicants who have been found to be inadmissible for
criminality or serious criminality. The Officer observed that an outstanding
H&C application does not warrant deferral of removal, nor does it
constitute a stay. The Officer also noted that according to section 233 of the
Immigration and Refugee Protection
Regulations, SOR/2002-227, there is no stay of removal where there
is an outstanding H&C application that has not been approved in principle
by the Minister.
[13]
Finally, the Officer considered
the hardship that the Applicant may face if removed to Portugal. The Officer noted that he had been previously employed as a landscaper,
and insufficient evidence had been provided to demonstrate he would not be able
to seek similar employment in Portugal. The Officer also found that the Applicant
had been given reasonable notice of his removal from Canada and therefore had an appropriate amount of time to prepare for it.
[14]
The Officer was not satisfied that a deferral
of removal was warranted on the above grounds.
Legislation
[15]
The
Immigration and Refugee Protection Act, R.S. 2001, c. 27 [IRPA] provides:
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25. (1) The Minister must, on request of
a foreign national in Canada who is inadmissible or who does not meet the
requirements of this Act, and may, 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 obligations of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to the foreign national, taking into account the best interests of a
child directly affected.
[…]
48. (1) A removal order is enforceable if
it has come into force and is not stayed.
Effect
(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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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,
sur demande d’un étranger se trouvant hors du Canada, étudier le cas de cet
étranger; il peut lui octroyer le statut de résident permanent ou lever tout
ou partie des critères et obligations applicables, s’il estime que des
considérations d’ordre humanitaire relatives à l’étranger le justifient,
compte tenu de l’intérêt supérieur de l’enfant directement touché.
[…]
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.
Conséquence
(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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Immigration and Refugee Protection Regulations,
S.O.R./2002-227 (the Regulations)
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233. A removal order made against a
foreign national, and any family member of the foreign national, is stayed if
the Minister is of the opinion that the stay is justified by humanitarian and
compassionate considerations, under subsection 25(1) or 25.1(1) of the Act,
or by public policy considerations, under subsection 25.2(1) of the Act. The
stay is effective until a decision is made to grant, or not grant, permanent
resident status.
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233. Si le ministre estime, aux termes des
paragraphes 25(1) ou 25.1(1) de la Loi, que des considérations d’ordre
humanitaire le justifient ou, aux termes du paragraphe 25.2(1) de la Loi, que
l’intérêt public le justifie, il est sursis à la mesure de renvoi visant
l’étranger et les membres de sa famille jusqu’à ce qu’il soit statué sur sa
demande de résidence permanente.
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Issues
[16]
The Applicant submits that the Officer
erred by failing to exercise his discretion and to do so in a reasonable and
equitable manner
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[17]
The issues in this application
are:
a.
was the decision of the Officer
not to exercise his discretion reasonable?
b.
did the Officer make a reviewable
error stating the Applicant was on social assistance?
Standard of Review
[18]
The Applicant makes no submissions on the appropriate
standard of review. The Respondent submits that the standard of review of an
enforcement officer’s decision is reasonableness, noting in particular that an
officer’s discretion to defer removal is limited.
[19]
I agree with the
Respondent that the standard of review of an enforcement officer’s decision is
reasonableness: Baron v Canada (Minister of Public Safety
and Emergency Preparedness), 2009 FCA 81 at para 67
[Baron].
Analysis
[20]
Both parties refer to case law regarding
stay applications, but I must observe that the present matter concerns a
judicial review of the Officer’s decision to refuse the request for deferral of
the Applicant’s removal, which is different from an application for a stay of
removal.
[21]
While the
jurisprudence of stay applications may be helpful in forming some judicial review
applications, they do not involve the same legal test. Stay applications
require an application of the test formulated in Toth v Canada (Minister of Employment and Immigration), (1988), 86 NR
302 (FCA) [Toth]
whereas in a judicial review application, the Court must assess the
reasonableness of the Officer’s decision in his application of the facts to the
law.
[22]
The Applicant acknowledges
that the relevant IRPA provision, s.48(2), allows the Officer the discretion to
schedule a removal only when the conditions set out in the provision are met –
that is, once it is reasonably practicable to do so. The Applicant submits that
special considerations exist here, including the fact that the Applicant has
lived in Canada for 20 years and is only asking to stay
for a few months to take care of his father. The Applicant also states that he
had submitted his H&C application in a timely manner soon after the stay of
removal order was cancelled. He therefore objects to the Officer’s refusal to
defer his removal.
[23]
The Officer’s
discretion to do so was described by Justice Lemieux in the case Umukoro v Canada (Minister of Citizenship and Immigration), [1999] FCJ No 436 (TD) at para 24 [Umukoro]:
The
jurisprudence of this Court is clearly to the effect that a removal officer
such as Carolyn Moffett has some discretion under the Immigration Act
concerning removal once the removal officer has become involved in making
deportation arrangements. The reason this
discretion exists is because removals under section 48 of the Immigration Act
are to be carried out "as soon as reasonably practicable.”
(emphasis added)
[24]
Umukoro dealt with an application for a stay of
removal, and Justice Lemieux’s words were in the context of the irreparable
harm analysis of the Toth test. This case dealt with the removal
provision under the former Immigration Act. However, it would appear
that the principle that the appropriateness of a removal officer’s exercise of
discretion depends on the circumstances of each case remains relevant.
[25]
The case law submitted
by the Applicant, all dealing with requests for a stay, point to the limited
nature of the Officer’s discretion to defer a removal order, which may include
consideration of factors such as illness, other impediments to travelling, and
pending H&C applications that were brought on a timely basis but yet have
to be resolved due to backlogs in the system: Simoes
v Canada (Minister of Citizenship and Immigration),
[2000] 187 FTR 219 (TD) at para 12 [Simoes].
The
Father’s Illness
[26]
The Applicant submitted his father
was seriously ill, and receiving treatment for gastric cancer. He now submits
the father’s life expectancy for his condition less than five years. However,
the evidence and submission before the Officer was that his father was
undergoing chemotherapy treatment and would be unable to work for six to 12
months.
[27]
The Applicant contends his
parents rely on him for support. The Applicant also submits that the Officer made an error in finding that
the Applicant would not be able to financially support his parents because he
stated he was receiving social assistance. The Applicant states in his
affidavit that at the interview he did not tell the Officer he received social
assistance.
[28]
The Respondent disputes
the Applicant’s evidence on this matter, but is nevertheless of the opinion
that whether the Applicant was on social assistance was not an error central to
the Officer’s decision in that it would not change the ultimate finding that
deferral was not warranted. Given that the Applicant’s record showed his
employment to be sporadic and that there was no evidence that he was employed
at the time of the deferral request, the Respondent submits that it was open to
the Officer to find that the Applicant was unable to support his parents
financially.
[29]
I agree with the
Respondent. Even if the Officer had made an error in concluding that the
Applicant was on social assistance, his employment was at best sporadic. The
Applicant did not provide evidence to the Officer demonstrating employment. The
Officer’s Notes to File indicate the Applicant was not currently employed and
being supported by his mother. The Officer’s conclusion that the Applicant was
on social assistance is not a material error central to the decision.
Pending
H&C Applications
[30]
The Applicant submits he submitted
a timely H&C application as soon as his stay of removal had been cancelled.
[31]
The Officer noted that there was
no evidence that a decision on the Applicant’s H&C application was
imminent. The Officer fully canvassed the question of deferral of removal when
H&C applications where pending.
[32]
In [Baron], the Federal Court
of Appeal dealt with an application for judicial review of an officer’s refusal
to defer removal from Canada. The Federal Court of Appeal addressed the
H&C applications stating at paras 50 to 51:
I further opined
that the mere existence of an H&C application did not constitute a bar to
the execution of a valid removal order. With respect to the presence of
Canadian-born children, I took the view that an enforcement officer was not
required to undertake a substantive review of the children's best interests
before executing a removal order.
Subsequent to my
decision in Simoes, supra, my colleague Pelletier J.A., then a member of
the Federal Court Trial Division, had occasion in Wang v. Canada (M.C.I.),
[2001] 3 F.C. 682 (F.C.), in the context of a motion to stay the execution of a
removal order, to address the issue of an enforcement officer's discretion to
defer a removal. After a careful and thorough review of the relevant statutory
provisions and jurisprudence pertaining thereto, Mr. Justice Pelletier
circumscribed the boundaries of an enforcement officer's discretion to defer.
In Reasons which I find myself unable to improve, he made the following points:
There are a
range of factors that can validly influence the timing of removal on even the
narrowest reading of section 48, such as those factors related to making
effective travel arrangements and other factors affected by those arrangements,
such as children's school years and pending births or deaths.
The Minister is
bound by law to execute a valid removal order and, consequently, any deferral
policy should reflect this imperative of the Act. In considering the duty to
comply with section 48, the availability of an alternate remedy, such as a
right to return, should be given great consideration because it is a remedy
other than failing to comply with a positive statutory obligation. In
instances where applicants are successful in their H&C applications, they
can be made whole by readmission.
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 the 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.
Cases where
the only harm suffered by the applicant will be family hardship can be remedied
by readmitting the person to the country following the successful conclusion of
the pending application.
(emphasis
added)
[33]
In my view, the decision in Baron
fully addresses the Applicant’s submissions on the H&C application.
The Applicant has made an H&C application and, if successful, he would be
able to return.
Conclusion
[34]
The Applicant disagrees with the way the Officer
weighed the factors, but the Officer correctly outlined the relevant legal
provisions, acknowledged the Applicant’s concerns but reasonably concluded that
this was not an appropriate case to defer the Applicant’s removal. The Officer
provided adequate reasons that were based on the evidence that was before him.
[35]
I consider the Officer’s decision
not to grant a deferral of removal on these grounds to be reasonable. I do not see any reviewable error made by
the Officer in deciding not to grant the deferral of removal.
[36]
I would dismiss this
application for judicial review.
[37]
The parties do not
propose a question of general importance for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
The
Application for judicial review is dismissed; and
2.
I
do not certify a question of general importance.
“Leonard
S. Mandamin”
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