Date: 20111018
Docket: IMM-1718-11
Citation: 2011 FC 1174
Ottawa, Ontario, October 18, 2011
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
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ERIC TOWA
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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
[1]
This
is an application for judicial review of a decision made by an Inland
Enforcement Officer (the Officer), dated March 15, 2011, refusing to defer the
applicant’s removal from Canada. The Officer concluded that there were no
special circumstances that warranted a deferral of the applicant’s removal to Cameroon.
I. Background
[2]
The
applicant’s immigration history is lengthy. He was first admitted to Canada as a student
in 2000. In March 2001, he filed a first application for permanent residence
from Canada on
humanitarian and compassionate grounds (H&C application). This application was
refused in April 2005. At some point after March 2001, he left Canada and, in 2002,
he re-entered without a visa; an inadmissibility report against him was issued on
December 4, 2002. The same day, the applicant filed a claim for refugee
protection. This claim was declared abandoned in February 2005 and Leave to File
an Application for Judicial Review of that decision was denied in February 2005
(File No. IMM-9273-04).
[3]
In
January of 2005, the applicant filed a first Pre-Removal Risk Assessment (PRRA)
application that led to a negative decision in July 2006. In October 2006, an Application
for Leave and Judicial Review of that decision was denied (File No.
IMM-4031-06).
[4]
In
January 2007, the applicant filed a second PRRA application. A negative
decision was rendered in April 2007 and an Application for Leave and Judicial
Review of that decision was denied in September 2007 (File No. IMM-2278-07).
[5]
In
February 2007, the applicant filed a Leave application to challenge a decision
made in that month refusing to defer his removal. Leave was denied (File No.
IMM-597-07). In February 2007, he also tried to challenge a direction to
report for removal and Leave was once again denied (File No. IMM-861-07).
[6]
In
June 2007, he filed a second H&C application. This application was received
at CPC Vegreville on June 20, 2007 and is still pending.
[7]
On
February 18, 2011, the applicant was notified that he would be removed from Canada on March 18,
2011. On March 11, 2011, he submitted a request to defer his removal. On March
13, 2011, his counsel sent submissions to the Officer in support of the request
for deferral. These submissions substantiated the grounds for requesting the
deferral. The request was based on three principal grounds: the applicant’s pending
H&C application, the risk to his life that he would face if he was returned
to Cameroun and his
establishment in Canada.
[8]
The
applicant’s risk allegation was based on the following: In 2002, he was employed
as an accountant in Cameroun on a contract to conduct an internal audit of
the Cameroonian Ministry of Defence. During the internal audit, he uncovered
corrupt accounting practices by officers of the Ministry of Defence. He tried
to expose these practices but he was threatened, ambushed by soldiers blocking
his way home and his house and office were ransacked. He believed that he had
no choice but to flee the country. He obtained a false passport and flew to
Canada through Paris. He arrived in Canada on November
28, 2002, without a visa.
[9]
On
March 15, 2011, the Officer refused to defer the applicant’s removal. This is
the decision under review.
II. The
impugned decision
[10]
The
Officer dealt with the three main allegations submitted by the applicant.
[11]
First,
the Officer concluded that the applicant’s outstanding H&C application was
not a factor that warranted a deferral. He noted that, according to the Immigration
and Refugee Protection Act, SC 2001 c 27 [IRPA] and the Immigration
and Refugee Protection Regulations,
SOR/2002-227, there is no stay of removal where an H&C application
that has not been approved in principle by the Minister is pending. He also considered
the applicant’s immigration history and concluded that his H&C application
had not been submitted in a timely manner. On that matter, he highlighted the
following elements:
a. It was the
applicant’s second H&C application and the first one had been refused in
April 2005;
b. On December 4
2002, a departure Order had been written for the applicant’s removal from Canada;
c. The applicant
was determined ready for removal from Canada when he attended his
PRRA initiation interview in December 2004;
d. The
applicant’s H&C application was received after he was deemed ready for
removal;
e. The
applicant’s second H&C application was received two years after his first
H&C application was refused;
f.
The
applicant’s second H&C application was referred to the Toronto PRRA Office
because it contained risk allegations. Yet, the applicant had his risk assessed
twice in two negative PRRA decisions.
[12]
The
Officer also assessed the applicant’s alleged risk to his life. He noted that
the risks alleged by the applicant had been assessed on two occasions by PRRA Officers.
He further cited an excerpt of the second PRRA decision in which the Officer
discussed country conditions evidence. He concluded the following:
In addition, I note that as an
Enforcement Officer, my discretion is extremely limited. I may assess whether
removal at this time would expose the applicants to risk of death, extreme
sanction, or inhumane treatment, and based on the information provided I have
been unable to identify any new risks that were not already considered in Mr.
Njine Towa’s PRRA applications.
[13]
The
Officer also considered the applicant’s establishment in Canada and the
hardship that he would suffer if he was returned to Cameroun. He noted
that the applicant had lived in Canada since November 2002,
that he was an active and respected member of his community and that he had no
criminal record. He further noted that the applicant has been a member of the
Certified Management Accountants of Ontario since 2005. He indicated that there
was no evidence that the applicant would not be able to secure employment in
Cameroun given the accounting skills he obtained in Canada. The Officer
also outlined that the applicant had not purchased property in Canada or invested
a substantial amount of money in Canada. Based on all the
abovementioned elements, he concluded that the applicant did not have “immense
establishment in Canada.”
[14]
The
Officer also considered the hardship that the applicant would face if returned
to Cameroun and
concluded that, while being sensitive to the difficulties stemming from
removal, the applicant’s reintegration into his country of nationality should
be “relatively easy.”
III. Issues
[15]
The
applicant raises two main arguments against the Officer’s decision but they
boil down to one issue:
Was the
Officer’s decision not to defer removal reasonable?
IV. Standard of review
[16]
It
is well established that the standard of review applicable to an enforcement
officer’s decision to defer or to refuse to defer removal is that of
reasonableness (Baron v Canada (Minister of Public
Safety and Emergency Preparedness), 2009 FCA 81 at para 25, [2010] 2 FCR 311 [Baron].
[17]
The
Court’s role when reviewing a decision against the reasonableness standard is
enunciated in Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1
SCR 190:
.
. . A court conducting a review for reasonableness inquires into the qualities
that make a decision reasonable, referring both to the process of articulating
the reasons and to outcomes. In judicial review, reasonableness is concerned
mostly with the existence of justification, transparency and intelligibility
within the decision-making process. But it is also concerned with whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
V. Analysis
[18]
The
applicant contends that the Officer did not seem to be cognizant of his
discretion to defer his removal based on the fact that the applicant had an H&C
application pending due to backlogs.
[19]
The
applicant argues that the respondent’s diligence in dealing with his H&C
application is more than lacking. The applicant’s H&C file has been
shuffled around for more than four years and is still awaiting outcome. The
respondent provided no explanation for this delay. In this case, the applicant
is facing unusual, underserved or disproportionate hardship and the negative
consequences facing the applicant cannot be remedied if he is able to return
after a positive H&C decision because he faces death or detention in a state
that abuses human rights. The applicant relied on Babolim v Canada (Minister of Citizenship and
Immigration),
2007 FC 909, 160 ACWS (3d) 679 [Babolim] for the proposition that a
deferral should be granted when an outstanding H&C application has not been
processed due to backlogs.
[20]
The
applicant also contends that the Officer failed to carry out his duty, which is
to properly consider the Court’s guidance on exigent personal circumstances, (Ramada
v Canada (Solicitor General), 2005 FC 1112 at para 3, 141
ACWS (3d) 1016) and that the Officer ignored, misconstrued, or misapprehended
cogent and important evidence. On that regard, the applicant contends that the
Officer failed to consider that he had his final exam for becoming a Certified
Management Accountants in Ontario scheduled on May 11, 2011 and
that he would miss it if a deferral was not granted.
[21]
The
applicant further emphasises that the Officer should have considered the fact
that the H&C application was based on risks and that a refusal to defer the
removal would expose him to those risks. He relied on Wang v Canada (Minister
of Citizenship and Immigration), 2001 FCT 148, [2001] 3 FC 682, to argue
that deferring removal is especially justified in situations where there is a
very dated H&C application pending and where there are significant risks to
the applicant if removed to his or her country of nationality.
[22]
Finally, the
applicant contends that the Officer did not adequately weigh the factors
relating to his establishment in Canada
or the hardship the removal will cause him and his relatives that depend on him
for support.
[23]
The
arguments raised by the applicant cannot succeed.
[24]
I
do not agree that the Officer was not cognizant of his discretion to defer the
applicant’s removal based on the pending H&C application. While it is true
that the Officer noted that the IRPA did not provide for a stay of a removal
due to an outstanding H&C application, this passage needs to be put in
context. It is apparent from the Officer’s decision that he was referring to
the fact that the IRPA does not provide for an automatic stay. It is also clear
that the Officer was well aware of the discretion that he had to defer the
removal; he exercised this discretion and determined that the circumstances did
not warrant deferral.
[25]
In
Baron, the Federal Court of Appeal made it clear that section 48 of the
IRPA gives the Officer a limited discretion to defer removal orders. The Court
indicated that the mere existence of a pending H&C application was not
sufficient to warrant deferral, absent special considerations. Justice Nadon,
writing for the Court, cited, with approval, at paragraph 51 of the decision,
the following excerpt of Justice Pelletier’s reasons in Simoes v Canada
(Minister of Citizenship and Immigration) (2000) 187 FTR 219, 98 ACWS (3d)
422:
i.
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.
ii.
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.
[Emphasis added]
[26]
The
applicant relied on Babolim but it is worth citing the entire relevant
passage where the Court stated the following at paragraph 20:
In sum, even if the officer’s discretion
is limited, when factors such as illness or othern [sic] issues to
travel exist and there is a pending H&C application, unresolved due
to backlogs in the system, a deferral should be granted.
[Emphasis added]
[27]
In Khamis
v Canada (Minister of Citizenship and Immigration), 2010 FC 437 at para 29
(available on CanLII), the Court held that where it is apparent that an
enforcement officer was aware of an outstanding H&C application, it was for
him to decide the weight to afford to that element.
[28]
In Jonas
v Canada (Minister of Citizenship and
Immigration),
2010 FC 273 (available on CanLII), the Court expressed the following regarding
the consideration to be given to a pending H&C application:
20 Enforcement officers may consider
"pending H&C applications that were brought on a timely basis but have
yet to be resolved due to backlogs in the system," but the existence of
such applications does not obligate the officers to grant a deferral request in
all cases: Simoes, supra, at para. 12.
21 In this case, the officer did
consider the existence of the pending H&C application and it was open to
the officer to consider the imminence of a decision in the pending H&C
application. 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. . .
[29]
I agree
with the principles enunciated in the above mentioned case law. It is clear
from the jurisprudence that an officer has the discretion to factor in the personal
circumstances of each case and that the existence of an H&C application
pending due to backlogs, absent special circumstances, does not automatically
warrant a deferral.
[30]
In this
case, the Officer considered the pending H&C application but decided not to
afford it any weight because he considered that it had not been filed in a
timely manner. Despite counsel for the applicant’s able efforts to convince me
otherwise, I am of the view that, in light of the applicant’s immigration
history, it was reasonably open to the Officer to conclude that the application
had not been filed in a timely manner.
[31]
Furthermore,
I consider that, with respect to the issue of the risk that the applicant would
face should he be returned to Cameroon, the Officer was entitled to
rely on the previous PRRA assessments to conclude that there was no imminent
risk facing the applicant (Baron). The risk alleged by the applicant has
been assessed on two occasions and the H&C application did not raise any
new risk. Therefore, it was reasonable for the Officer to conclude that the
applicant did not face a serious risk to his personal safety.
[32]
I am also
of the view that the Officer’s assessment of the applicant’s establishment in Canada was reasonable.
[33]
The
applicant finds fault in that the Officer ignored that he would miss his final
exam for his certification as a Certified Management Accountant of Ontario. In
the submissions to the Officer, counsel for the applicant presented this information
with all the other elements regarding the applicant’s establishment. The
Officer is presumed to have considered all of the evidence and his failure to
refer specifically to that element does not vitiate his decision.
[34]
In light
of all of the above, I consider that the Officer exercised his discretion
reasonably and this case does not warrant the intervention of the Court.
[35]
The
application for judicial review will be dismissed. No questions were proposed
for certification and none arise.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is dismissed. No
question is certified.
“Marie-Josée
Bédard”
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