Date: 20070706
Docket: IMM-7789-05
Citation: 2007 FC 718
Ottawa, Ontario, July 6,
2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
MARAT
MOUMAEV
Applicant
and
MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a
decision of an enforcement officer, dated December 21, 2005, which refused the
applicant’s request for a deferral of his removal from Canada.
[2]
The
applicant seeks an order quashing the decision not to defer removal.
Background
[3]
The
applicant, Marat Moumaev, and his son, Rouslan Moumaev, are citizens of Russia and claim to
be of Chechen ethnicity. The applicant described his ethnic background and
explained the basis for his fear of returning to Russia in his
affidavit. The applicant’s family was deported from Chechnya in 1944 and
as a result, he was born in Kazakhstan. His family returned to
Chechnya in 1957, where the applicant lived until he moved to Moscow in 1974.
During the Chechen war of 1994 to 1995, Russian citizens of Chechen origin were
being arrested and persecuted. The applicant began receiving threatening phone
calls and was informed that many of his Chechen friends in Moscow had been
beaten by the police, tortured and arrested.
[4]
In
June 1995, the applicant was stopped by the police for a routine document
check. He provided them with his passport, which indicated his Chechen
ethnicity, and was immediately taken into custody. He was asked to sign
documents accusing other imprisoned Chechens of keeping illegal firearms. He
refused to sign the documents, and was beaten by the police. He was warned not
to complain about the incident. The applicant and his family later moved to Cyprus with
temporary visas, where they remained for four years. The applicant returned to Russia a number of
times during this period. He returned in 1998 in order to renew his
international passport, and again in 1999, in order to apply for a Canadian
visa.
[5]
After
obtaining a visa, he fled to Canada with his son. They arrived in Canada as visitors
on October 13, 1999. Their claim for refugee protection was denied on August 7,
2003, because they had failed to establish their Chechen ethnicity. The
applicant submitted his internal passport and military book in support of his
ethnic identity; however, the original documents were lost by the Immigration
and Refugee Board (the Board) when they were taken for forensic testing. Leave
for judicial review of the Board’s decision was denied on December 17, 2003.
The applicant submitted his first PRRA application in March 2004. The PRRA
application was rejected on November 3, 2004, due to a lack of evidence
establishing the applicant’s ethnicity. Leave for judicial review of the first PRRA
decision was denied on April 13, 2005.
[6]
The
applicant was originally scheduled for removal from Canada to Russia on January
5, 2005. He did not appear for removal on January 5, 2005, and a warrant for
his arrest was issued on January 6, 2005. The applicant was arrested on
November 29, 2005, on an immigration warrant for removal and was scheduled for
removal on January 4, 2006.
[7]
The
applicant submitted an application for permanent residence on humanitarian and
compassionate grounds (H&C) in May 2005 and a second PRRA application in
December 2005. The applicant also
requested a deferral of his removal to Russia pending the
outcome of these applications. The deferral request was refused by an
enforcement officer on December 21, 2005. The applicant then filed a motion
with this Court for a stay of removal which was granted on January 10, 2006,
pending a decision regarding the second PRRA application. The second PRRA
application was refused on January 18, 2006, and the stay of removal was
terminated.
[8]
The
applicant was scheduled for removal on May 24, 2006, however, he sought a
second stay of removal pending the outcome of leave applications for the
judicial review of: (1) the second PRRA decision, dated January 18, 2006; and
(2) the refusal of the enforcement officer to defer removal, dated December 21,
2005. On May 19, 2006, this Court granted stays of removal pending the
determination of both applications, in addition to leave for judicial review in
both cases. This is the judicial review of the enforcement officer’s decision
to refuse the applicant’s request for a deferral of removal.
Officer’s Reasons
[9]
There
were no formal reasons given for the officer’s decision. However, a fax sent by
the officer to the applicant’s counsel stated the following:
As for your request, unfortunately I am
unable to defer removal for your client. As you know, I am required to remove
people who are under removal order as soon as reasonably practical. Also, as
you note, you client was served with a negative PRRA decision and instructions
to report for his removal on – January 5, 2005. He decided not to comply with
CBSA’s instruction.
Issues
[10]
The applicant submitted the following issues for
consideration:
1. Did
the officer err in refusing to defer the applicant’s removal?
2. Did
the officer err in failing to provide adequate reasons for the decision?
[11]
The
respondent submitted the following additional issues for consideration:
1. Is
this matter moot?
2. Is
any discretionary remedy available where the applicant does not come to the
Court with clean hands?
3. Should the
officer have undertaken a substantive review of the applicant’s evidence
concerning risk in making his decision?
Applicant’s Submissions
[12]
The
applicant noted that he had requested a deferral of his removal from Canada on
the basis of a pending PRRA application, in support of which he had submitted
significant new evidence regarding his fear of persecution upon return to Russia due to his
Chechen ethnicity.
[13]
The
applicant submitted that the decision to defer removal under subsection 48(2)
of IRPA was discretionary and required that the officer consider relevant
factors in each case (see Poyanipur v. Canada (Minister of
Citizenship and Immigration) (1995), 116 F.T.R. 4 (F.C.T.D.)). It was
submitted that the officer fettered his discretion and ignored evidence of risk
when refusing to defer the applicant’s removal. The applicant submitted that
enforcement officers may consider whether it is reasonable to defer removal
pending a risk assessment and whether failure to defer will expose the
applicant to a risk of serious harm (see Saini v. Canada (Minister of
Citizenship and Immigration), [1998] 4 F.C. 325, (1998), 150 F.T.R.
148)).
[14]
The
applicant submitted that he had initiated his second PRRA on December 9, 2005,
prior to removal arrangements being made. It was submitted that the applicant’s
assertion regarding the risk to his life was a bona fide application and
should have been considered by the officer. The applicant submitted that the
officer erred in failing to properly assess the risk he faced (see Sklarzyk v.
Canada (Minister of
Citizenship and Immigration), 2001 FCT 336 (F.C.T.D.)). The applicant
submitted that the officer did not consider the issue of the risk involved in
his removal to Russia, as this issue was not addressed in the
decision, which did not include reasons. This Court has held that boilerplate
type decisions may generate allegations that the decision-maker did not turn
its attention to the facts of the claim (see Mohacsi v. Canada (Minister of
Citizenship and Immigration), [2003] 4 F.C. 771, 2003 FCT 429).
[15]
It
was submitted that the officer fettered his discretion by emphasizing the fact
that the applicant had not complied with previous CBSA instructions for
removal, without referring to other facts which supported his deferral request.
The applicant acknowledged that enforcement officers are not required to
produce formal reasons; however, it was noted that there were no notes to file
in this case. It was submitted that the decision demonstrated that the officer
misunderstood the facts and failed to disclose the basis upon which it was
reached (see Shawesh v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 1757 (F.C.T.D.)).
Respondent’s Submissions
[16]
The
respondent noted that the applicant had requested a stay of removal pending a
decision regarding his second PRRA application. Since a negative PRRA decision
was rendered on January 18, 2006, it was submitted that this application for
judicial review was moot (see Doucet-Boudreau v. Nova Scotia (Minister of
Education),
[2003] 3 S.C.R. 3, (2003) 232 D.L.R. (4th) 577). It was submitted that the
facts of this case were unique and not of a recurring nature that should compel
the Court to hear the issue in spite of the lack of a live issue between the
parties.
[17]
The
respondent submitted that remedies on judicial review were discretionary, and
that the Court may deny such remedies due to the applicant’s conduct. It was
submitted that in the immigration context, individuals such as the applicant,
who choose to evade immigration officials, do not come to Court with clean
hands and ought not be rewarded by the exercise of the Court’s equitable
jurisdiction (see Chen v. Canada (Minister of Citizenship and
Immigration), 2003 FC 1464).
[18]
The
respondent submitted that standard of review applicable to deferral decisions
is that of patent unreasonableness (see Zenunaj v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1715). It was submitted that
there was no duty upon a removal officer to conduct risk assessments or
consider H&C factors in reaching a decision. The respondent submitted that
the task of the officer was to make removal arrangements as soon as reasonably practicable,
and that discretion to defer was generally limited to physical impediments to
travel (see Adviento v. Canada (Minister of Citizenship and
Immigration) (2003), 242 F.T.R. 295, 2003 FC 1430).
[19]
The
respondent submitted that officers do not err in giving little weight to new
risks raised at the eleventh hour. An officer may only consider such
applications where the risk is obvious, very serious or could not have been
raised earlier (see Jamal v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 494). It was submitted that the
applicant was attempting to reargue the case he did not make before the Board,
and that it was not patently unreasonable for the officer to give less weight
to his last minute PRRA application, which was not supported by new evidence of
exceptional risk. The respondent noted that under section 165 of the Immigration
and Refugee Protection Regulations, S.O.R./2002-227 (the Regulations),
subsequent PRRA applications do not result in a stay of a removal order. Therefore,
there were arguably fewer circumstances in which officers would be justified in
ignoring the positive obligation to remove a person as soon as reasonably
practicable. It was submitted that absent allegations of risk stemming from
changed country conditions, the officer ought not to defer on the basis of
risk.
[20]
The
respondent submitted that the officer’s reasons were adequate. It was submitted
that enforcement officers were not required to provide formal reasons, and
there was no duty upon them to address every aspect of a deferral request (see Hailu
v. Canada (Solicitor
General)(2005),
27 Admin.L.R. (4th) 222, 2005 FC 229). Unlike the case in Shawesh above,
the officer indicated that given that the applicant had already had a PRRA and
had failed to appear for removal in the past, deferral was not warranted. It
was submitted that the applicant failed to point to any new evidence submitted
in his second PRRA which established that he faced a new or exceptional risk if
he returned to Russia (see subsection 113(a) of IRPA). The respondent submitted
that it was therefore not patently unreasonable for the officer to refuse to
undertake a substantive review of the applicant’s last-minute PRRA application.
Applicant’s Reply
[21]
The
applicant submitted that the application for judicial review was not moot. It
was submitted that the fact that a stay of removal on an interim injunction
granted the underlying judicial review was precisely the reason why the Court
should not simply apply the serious issue test, but should go further and
examine the merits of the application (see Wang v. Canada (Minister
of Citizenship and Immigration), [2001] 3 F.C. 682, 2001 FCT 148).
[22]
The
applicant submitted that his second PRRA application should not be
characterized as a “last-minute” application, as it was filed prior to any removal
arrangements being made. The applicant submitted that the doctrine of “clean
hands” did not apply, since he was seeking a statutory remedy. In the
alternative, it was submitted that discretionary relief should be granted. The
applicant submitted that as articulated in Thanabalasingham v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 14, the Court should
attempt to strike a balance between maintaining the integrity of the judicial
process and the protection of human rights.
[23]
The
applicant submitted that while the standard of review applicable to a decision
to defer removal was reasonableness (see Adviento above), the officer’s
decision was also reviewable on the more deferential standard of patent unreasonableness.
It was submitted that the applicant’s proof that he was Chechen was new and
qualified as new evidence under subsection 113(a) of IRPA.
Analysis and Decision
Standard of Review
[24]
This
Court has held that the decision of removal officers to defer removal is
subject to a high level of deference, given the nature of the statutory scheme
and the limited, fact driven discretion they exercise under subsection 48(2) of
IRPA. The decision is thus reviewable on the standard of patent unreasonableness
(see Hailu above).
[25]
Mootness
The respondent submitted that
this matter was moot. I have reviewed the order dated May 19, 2006, staying the
removal of the applicant made by Justice Beaudry. Justice Beaudry stayed the
applicant’s removal “until the application for judicial review is determined by
the Federal Court”. Accordingly, I must deal with the application for judicial
review otherwise, the order of Justice Beaudry would continue to be in force.
The matter therefore is not moot.
[26]
Issue
1
Did the officer err in
refusing to defer the applicant’s removal?
Immigration
officers have very limited discretion to defer removal orders. Federal Court
jurisprudence has established that officers may consider factors such as: (1)
the existence of a pending H&C application that was filed in a timely
manner; (2) medical problems; (3) the arrangement of travel documents; and (4)
threats to personal safety (see Boniowski v. Canada (Minister of
Citizenship and Immigration) (2004), 44 Imm.L.R. (3d) 31, 2004 FC 1161), when
deciding whether to defer removal. Justice Pelletier stated the following
regarding the duties of removal officers at paragraphs 47 to 50 of Wang above:
[…] The Minister is under a
positive obligation to execute removal orders, which are lawful orders,
generally made by persons other than the Minister who hold designated offices
with a specific grant of authority to make such an order. These orders are not
mere administrative arrangements which the Minister can alter at her
convenience. In fact, the Minister is precluded from issuing a Ministerial
permit to a person who is subject to a removal order which is compelling
evidence that the Minister is intended to execute removal orders as opposed to
rendering them ineffective.
It has been recognized that
there is a discretion to defer removal though the boundaries of that discretion
have not been defined. The grant of discretion is found in the same section
which imposes the obligation to execute removal orders, a juxtaposition which
is not insignificant. At its widest, the discretion to defer should logically
be exercised only in circumstances where the process to which deferral is
accorded could result in the removal order becoming unenforceable or
ineffective. Deferral for the mere sake of delay is not in accordance with the
imperatives of the Act. One instance of a policy which respects the
discretion to defer while limiting its application to cases which are
consistent with the policy of the Act, is that 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. The consequences of removal in those circumstances cannot be
made good by readmitting the person to the country following the successful
conclusion of their pending application. […]
(Emphasis Added)
[27]
The
following are relevant dates in this case:
-
November
3, 2004: First PRRA refused.
-
January
5, 2005: Original removal date, applicant does not appear.
-
January
6, 2005: Warrant for applicant’s arrest issued.
-
May
2005: H&C application filed.
-
November
29, 2005: Applicant arrested (subsequent date of removal set for January 4,
2006).
-
December
9, 2005: Second PRRA application submitted.
-
December
21, 2005: Deferral of removal requested and subsequently refused.
[28]
The
applicant submitted that the officer’s decision not to defer removal should be
quashed because it did not demonstrate any consideration of the risks he would
face if returned to Russia. It is well established that the applicant
bears the onus of presenting compelling evidence in support of his request for
deferral (see John v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 420). In support of his
request for deferral, the applicant submitted all of the documents filed with
his second PRRA application, including:
-
three
affidavits attesting to his Chechen identity;
-
a
photocopy of his restored birth certificate;
-
a
photocopy of his Soviet workbook;
-
documentation
regarding country conditions facing Chechens; and
-
a
letter from Amnesty International.
[29]
The
officer was aware that the applicant’s initial PRRA had been rejected because
he had not established his Chechen ethnicity, as this fact was outlined in the
applicant’s submissions. The documents submitted to the officer included a
birth certificate which was re-issued on November 26, 2004, and indicated that
the applicant was Chechen. The applicant stated that his original birth certificate
had been destroyed when his family home was bombed. His sister mailed the
re-issued certificate to him in late 2004, after both his refugee claim and
first PRRA had been decided. The applicant explained that he had not attempted
to obtain his birth certificate beforehand, because he believed that his
military book and internal passport, which were submitted with his refugee
claim, would have proved his ethnic identity. However, the Board questioned the
authenticity of these documents and determined that the applicant had not
established his ethnic identity. The applicant alleged that the Board lost his
military book and internal passport when they were taken for forensic testing.
[30]
Although
the timing of the request and second PRRA application appear suspect, in my
view, there was evidence of a serious threat to the applicant which warranted a
deferral of removal. In particular, I would note that the applicant’s
re-issued birth certificate supported his contention that he was Chechen. Documentary
evidence was also provided regarding the seriousness of the risks faced by
Chechens returning to Russia. Section 15.13 of the immigration policy
manual (ENF 10 Removals) states:
Subsequent PRRA applications
A person who receives a negative PRRA
decision and who remains in Canada following notification under
R160 may make another application…Pursuant to R165, a subsequent application
does not result in a stay of removal and removal arrangements can proceed. In
limited cases, exceptional circumstances may warrant the deferral of removal
pending a subsequent PRRA decision…
[31]
In
my view, the officer’s decision not to defer the applicant’s removal until the
completion of the second PRRA was patently unreasonable. There were exceptional
circumstances in this case which warranted a deferral of removal, including the
Board’s mismanagement of the applicant’s identity documents, and the fact that
the applicant had submitted a newly available birth certificate which had not
previously been considered. The applicant provided the officer with both
personal and documentary evidence regarding the seriousness of the risk he
faced should he be removed from Canada.
[32]
The
application for judicial review is therefore allowed, and the decision not to
defer removal is set aside.
[33]
Because
of my finding on the issue of mootness and the first issue, I need not deal
with the other issues.
[34]
Neither
party wished to submit a serious question of general importance for my
consideration for certification.
JUDGMENT
[35]
IT
IS ORDERED that the application for judicial review is allowed and the
decision not to defer removal is set aside.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27.:
|
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.
113. Consideration of an application for
protection shall be as follows:
(a) an
applicant whose claim to refugee protection has been rejected may present
only new evidence that arose after the rejection or was not reasonably
available, or that the applicant could not reasonably have been expected in
the circumstances to have presented, at the time of the rejection;
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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.
113.
Il est disposé de la demande comme il suit:
a)
le demandeur d’asile débouté ne peut présenter que des éléments de preuve
survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles
ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances,
de s’attendre à ce qu’il les ait présentés au moment du rejet;
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The Immigration and Refugee Protection
Regulations, S.O.R./2002-227:
|
165. A person whose application for
protection was rejected and who has remained in Canada since being given notification under section 160 may make
another application. Written submissions, if any, must accompany the
application. For greater certainty, the application does not result in a stay
of the removal order.
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165.
La personne dont la demande de protection a été rejetée et qui est demeurée
au Canada après la délivrance de l’avis visé à l’article 160 peut présenter
une autre demande de protection. Les observations écrites, le cas échéant,
doivent accompagner la demande. Il est entendu que la demande n’opère pas
sursis de la mesure de renvoi.
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