Date: 20070710
Docket: IMM-3884-06
Citation: 2007 FC 734
Ottawa, Ontario, July 10,
2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
LUIS FERNANDO RODRIGUEZ
ZAMBRANO
CAROLINA GOMEZ
KATHERINE ABIGAIL RODRIGUEZ
JOSHUA ALEXANDER RODRIGUEZ
CAROLINA
GOMEZ
Applicants
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicants request judicial review of a Removal Officer’s refusal to defer
their removal from Canada. A stay of removal was granted by this Court.
II. BACKGROUND
[2]
The
Applicants (father, mother and one child) were citizens of Ecuador, Venezuela
and the United
States
respectively. Another child was a Canadian born citizen. The parents had lived
illegally in the United States for 10 years before coming to Canada.
[3]
Their
refugee claim was rejected in part because their account of persecution was not
believed by the Immigration and Refugee Board. There were no new issues raised
in the PRRA which was also negative.
[4]
The
Applicants filed, in March 2006 while their PRRA was pending, an H&C
application which is still outstanding.
[5]
In
January 2006 the Applicants were informed that if their PRRA was unsuccessful,
they would be removed to the United States. They requested deferral
of removal on the basis that they would voluntarily comply and would make their
own travel arrangements to another country so they could avoid removal to the United
States
where they might be arrested on an immigration warrant. Deferral was granted to
permit the family to make these travel arrangements.
[6]
The
Applicants filed a second deferral request on July 7, 2006 pending a decision
on their H&C application. In addition to raising concerns as to their
ability to stay in either Venezuela or Ecuador (the
parents’ countries of citizenship), they filed a report of a psychologist
concerning the stress the parents were under because of their fear of return to
Ecuador where they
had claimed to be persecuted.
[7]
The
deferral request was denied. The Removal Officer noted the psychologist’s
report, considered the immigration history of the family, noting most
particularly the conviction of the male parent on a DUI and driving with a
suspended licence offence in Miami in 1992, and considering the best
interests of the children from several perspectives.
[8]
In
the end the Removal Officer could not find a reason for deferral. The Officer
made a key finding that the H&C would not be successful because the male
parent had been convicted of an offence which made him ineligible for landing
in Canada. The
critical paragraph reads:
I genuinely believe it would be in the
best interests of the children to remain with the family and to settle together
in a place they can, which at this time appears to be Ecuador. In light of the fact that the male head
of family has by his own admission been convicted of an offence that would make
him ineligible to be landed in Canada the H&C application could not be
approved and ultimately the family would have to depart Canada even if allowed to
remain for processing of that.
III. ANALYSIS
[9]
The
Applicants have attacked the Removal Officer’s decision on several grounds which
will be dealt with further. However, read as a whole, the Officer was clearly
sympathetic to the family and did a thorough and balanced review of the case,
but for the aspect of the Miami driving conviction.
[10]
The
authority of a removal officer is extremely limited as confirmed in Simoes
v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 936 (QL). The deferral
request is not a review of all past decisions nor is it a finding as to the
success of any other pending applications.
[11]
The
standard of review of a deferral decision has been the subject of some debate
in this Court as to “reasonableness simpliciter” or “patent
unreasonableness”. For purposes of this case, the choice between these two
standards is immaterial in the result.
[12]
The
Removal Officer made no error in consideration of the psychological report and
it did not merit a detailed analysis. The report, if accepted, would mean that
the Applicants could never be removed because they feared and were stressed by
the thought that they would be removed to the country in which they were
persecuted. Whatever the merits of this subjective basis for the report, the
Immigration and Refugee Board and the PRRA Officer had rejected as credible the
very factual basis on which the fear and stress were based.
[13]
The
Applicants challenged the Removal Officer’s efforts, performed on her own time,
to ensure that the family could live together in Ecuador. This had
been a live issue since 2004, one which the Applicants should have addressed,
and there is no allegation that the Officer’s conclusion was wrong.
[14]
The
Officer was more than “alert, alive and sensitive” to the best interests of the
children. It was evident that she was sympathetic to the family’s situation,
and that she was concerned that the family remain together.
[15]
It
was in respect to the pending H&C where this decision becomes problematic.
There is no evidence that a DUI and driving while licence suspended offence
constitutes “serious criminality”. Further, the Officer does not appear to have
considered CIC Operations Manual Bulletin 121 which gives an H&C officer
the authority to exempt an exclusion under the Act including a conviction for a
non-serious criminality.
[16]
Despite
the able argument of Respondent’s counsel that the criminality issue was
peripheral, that issue was intertwined with the consideration of “best
interests of the children”.
[17]
The
Court cannot be certain that the criminality conclusion was peripheral and
therefore must conclude that the Officer failed to properly consider a critical
fact and made a legal conclusion which cannot be supported under any of the
standards of review.
[18]
For
this reason, the judicial review is granted. The deferral decision is quashed
and the deferral request is remitted for consideration to a new Removal Officer
to be determined as expeditiously as possible. Despite the Applicants’ request,
the Court will not issue directions to that new Officer.
[19]
There
is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES THAT the application
for judicial review is granted. The deferral decision is quashed and the
deferral request is remitted for consideration to a new Removal Officer to be
determined as expeditiously as possible.
“Michael
L. Phelan”
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