Date: 20070124
Docket: IMM-885-06
Citation: 2007
FC 78
Vancouver, British Columbia, January 24, 2007
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
WARREN ALFREDO VIDAURRE CORTES
ANGELITA ROSELA SOLANO QUESADA
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The present Application challenges a decision of
a removals officer (Officer), dated February 14, 2006, in which the Applicants
were denied a deferral of removal to Costa Rica. The issue for determination is whether the Officer’s decision is
untenable. For the reasons which follow, I find that it is.
[2]
Briefly stated, the Officer was presented with
cogent and detailed expert medical and psychological evidence with respect to
the male Applicant’s existing physical and psychological disability arising
from a workplace accident. This same evidence also forms the basis of the
Applicants’ outstanding humanitarian and compassionate (H&C) application to
be landed from within Canada.
Another key factor in both the deferral decision and the H&C application is
the best interests of the Applicants’ three-year-old Canadian born child.
[3]
Before determining the deferral request, the
Officer went to the trouble to obtain further medical evidence, which was not
supplied to Counsel for the Applicant prior to the decision under review being
made. The further medical evidence conflicts with the Applicants’ evidence and
raises a contested issue with respect to the severity of the male Applicant’s
condition, and the availability of treatment options in Costa Rica. The Officer’s statements which
constitute the reasons for refusing a deferral are as follows:
Mr. Jeffery feels that this couple should
be given a stay on their deportation order until a decision is reached on their
Humanitarian and Compassionate application (without sponsorship). The clients
filed an H&C on 20DEC2005, which is still in process. It can take 12-18
months for the application to be processed. I do not feel that a deferral of
the couple’s removal on this basis is appropriate or reasonably practicable.
Additionally, the H&C application is not an impediment to removal which is
clearly stated in the application guide and should there [sic] not be utilized
as a mechanism of impediment to removal. The couple’s H&C application will
continue without their presence in Canada
and if their application is accepted, they may return to Canada.
Medical reports and letters
presented to GTEC were forwarded to medical doctors for review. They determined
that there was no credible basis for the claim and that removal would not cause
irreparable harm. The doctor report states that the “diagnosis appears
to be between post-traumatic
stress disorder and pain disorder. The psychiatrist felt pain disorder with
psychological features and adjustment disorder with depressed mood and anxiety
should be excluded. The other axes for psychiatric diagnosis are all completed
with minor L 4-5 degeneration (which is of no consequence).” In addition,
subject can continue to receive treatment in Costa Rica as “there are a number
of psychiatrists that are recommended by our embassy or the U.S. embassy. I assume that all these
qualified psychiatrists could provide treatment for post traumatic stress
disorder. There is a National Pain and Palliative Care Centre in San Jose with a network of similar clinics
in other centres as well.
The clients’ child is under 3
years of age and can easily integrate into any society her parents decide to
relocate to. At the time of PRRA initiation on 21SEPT2005, clients were
informed that they would be required to leave Canada within two to three weeks of a negative
PRRA decision. The couple have had ample time to plan and make arrangements
for their daughter since September in the event of their departure and
therefore is not a justifiable reason for deferral.
In my opinion, taking into
consideration all of the submissions from the counsel and Mr. Cortes, I do not
feel that there are exceptional circumstances in this case that warrant a
deferral of removal. For these reasons, Mr. Vidaurre Cortes’ [sic] removal
will proceed as scheduled.
(Applicant’s Record, pp.6-7)
I. The standard of
review of a removal officer’s decision
[4]
The authority granted to a removals officer is
contained in s.48 of the Immigration and Refugee Protection Act, R.S.C.
2001, c. 27 (IRPA):
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48. (1) Enforceable removal order – A removal order is
enforceable if it has come into force and is not stayed.
(2) Effect – 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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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
|
[5]
Many decisions of the Court have found that the
standard of review of a removal officer’s decision is patent unreasonableness
(for example: Zenunaj v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 2133;
and Griffiths
v. Canada (Solicitor General), [2006] F.C.J. No. 182). To reach this result, it is clear that, on a pragmatic and
functional analysis, strong weight is placed on the factor that a deferral
decision is highly fact based, and, therefore, a removals officer is to be accorded
deference. Consequently, on these authorities, an applicant has the burden to
establish that the decision is “clearly
irrational” or “must almost border on the absurd” (Voice Construction Ltd.
v. C.G.W.U., [2004] 1 S.C.R. 609 at para.18).
[6]
With
respect, on the basis of the pragmatic and functional analysis which follows, I
find that the standard of review of a deferral decision is not patent
unreasonableness, but is reasonableness simpliciter.
[7]
The
decision in Dr. Q v. College of Physicians and Surgeons of British
Columbia, [2003] 1 S.C.R. 226, sets out the factors to consider on a
pragmatic and functional analysis to determine the degree of deference to be
accorded to the decision-maker of the decision under review: whether a privative clause exists in
the legislation in question; whether the reviewing judge can be said to have
more expertise than the decision-maker; the purpose of the legislation and the
provision; and whether the question being decided is one of law, fact, or mixed
law and fact.
[8]
It is
agreed that no privative clause exists to limit judicial review of a deferral
decision. As described below in detail, the purpose of s.48(2) is to
immediately remove persons without status, but only as
soon as the practicability of removal is reasonable. On practicability, there is no doubt
that the removals officer has expertise, but this is relatively unimportant to
the outcome of a deferral request. At the core of a deferral decision is the
expertise used in determining the issue of reasonableness. I find that neither
a removals officer, nor a reviewing judge, possesses dominant subjective
judgment when it comes to weighing the human conditions which are, invariably,
integral to a deferral application. Thus, having found three factors that are essentially
neutral on the issue of deference, in my opinion, the outcome of the pragmatic
and functional analysis depends on whether the deferral decision is one of law,
fact, or mixed law and fact.
[9]
In my
opinion, a deferral decision is not a question of fact, but is a question of
mixed law and fact.
[10]
A question of mixed law and fact involves the application of
general principles of the statutory provision concerned to specific
circumstances (Law Society of New Brunswick v. Ryan, [2003]
S.C.R. 247 at para.41) (Ryan). Section 48(2) provides a number of factors for consideration. The
provision directs that persons who have no status in Canada are to be removed
upon this lack of status being determined, and that removal must occur as soon
as “reasonably practicable”; this phrase denotes that there are two
factors in play in arriving at a decision to defer removal: the legal
requirement for removal, and the factual requirement that the removal be on the
basis of two factual considerations being found to exist at the same time.
That is, removal must occur as soon as practicable, but only as soon as the
practicability of removal is reasonable. Thus, the deferral decision is
essentially a complex finding of mixed law and fact. As I do not find any
reason to deviate from the usual standard of review that applies to findings of
mixed law and fact, I find that the standard of review of a deferral decision
is reasonableness simpliciter.
[11]
Ryan at paras. 55 and 56, speaks to the
approach to be taken on the review of a decision on the standard of
reasonableness:
A
decision will be unreasonable only if there is no line of analysis within the
given reasons that could reasonably lead the tribunal from the evidence before
it to the conclusion at which it arrived. If any of the reasons that are
sufficient to support the conclusion are tenable in the sense that they can
stand up to a somewhat probing examination, then the decision will not be
unreasonable and a reviewing court must not interfere (see Southam, at
para. 56). This means that a decision may satisfy the reasonableness standard
if it is supported by a tenable explanation even if this explanation is
not one that the reviewing court finds compelling (see Southam, at para.
79).
This
does not mean that every element of the reasoning given must independently pass
a test for reasonableness. The question is rather whether the reasons, taken as
a whole, are tenable as support for the decision. At all times, a court
applying a standard of reasonableness must assess the basic adequacy of a
reasoned decision remembering that the issue under review does not compel one
specific result. Moreover, a reviewing court should not seize on one or more
mistakes or elements of the decision which do not affect the decision as a
whole.
[Emphasis
added]
[12]
Therefore, in the present Application, the onus
is on the Applicants to establish that the Officer’s refusal to defer is
untenable. To determine whether they are successful in meeting this challenge,
it is necessary to focus on the factual considerations existent in s.48(2).
[13]
A deferral decision is intricate. The legal
requirement is clear: the removal is to be immediate, but enforcement is based
on practicability; that is, removal is to occur as soon as it is “able to [be]
put into practice”. But there is an important additional qualifier: what is practicable
must be reasonable; that is, “sensible” (The New Shorter Oxford English
Dictionary, 4th edition (Oxford: Clarendon Press, 1993)).
[14]
With respect to what is practicable, the line of
analysis on this element of a deferral decision revolves around what is
possible at the time. A decision on this factor only amounts to a conclusion
being drawn on features such as: is the whereabouts of the failed refugee
claimant known; is the claimant accessible; is there an available method
whereby the claimant can be transported out of the country; and are there
persons who can escort the claimant to the airport or drive the claimant to the
border? These are not complex operational considerations.
[15]
However, the factor of reasonability adds
complexity to the decision making process being conducted. It is on this issue
that failed claimants ask for deferral; they know that the removals officer
might have the present operational capacity to remove, but argue that, on the
factor of
reasonableness, they ought not to be removed. It is on this factor
that there is wide judicial agreement that a removals officer has discretion.
However, there is disagreement on the scope of this discretion. That is, the
question becomes: what circumstances will reasonably result in the deferral
that the claimant is requesting? Some review decisions say that only
“exceptional circumstances” are reasonable (for example: John v. Canada (Minister of Citizenship and
Immigration), [2003] F.C.J. No. 583, and Padda v. Canada (Minister
of Citizenship and Immigration), [2003] F.C.J. No. 1353), while others take a more flexible view, and find that humanitarian
considerations can be applied. In these instances, the fact that a
Humanitarian and Compassionate application is before the Minister of
Citizenship and Immigration (H&C) pursuant to s.25(1) of the IRPA can
be found to make it reasonable that a claimant not be removed until the
application is decided (for example: Poyanipur v. Canada (Ministry of
Citizenship and Immigration), [1995] F.C.J. No. 1785 at para. 9, and Gerist
v. Canada (Minister of Citizenship and Immigration), [1997]
F.C.J. No. 1584).
[16]
As stated in para. 55 of Ryan, the question
is: Are any of the reasons sufficient to support a denial of a deferral request
tenable, in the sense that they can stand up to a somewhat probing examination?
In my opinion, the reasons under review do not stand up to such an examination.
II. The standard of review applied in the present case
[17]
Indeed, the decision under review displays an
earnest attempt to reach the conclusion that the established practicability of
the Applicants’ imminent removal is, indeed, reasonable. The
Applicants’ main appeal to the Officer on the reasonableness factor
was that their removal should be deferred until their H&C application is
decided. The Officer struggled with this submission, and went to a great deal
of trouble to analyse the health issues which are at the base of the request.
On the one hand, the Officer can be complimented for the effort but, on the
other hand, the effort exposed a body of seriously conflicted professional
opinion which required careful analysis to determine where weight should be
placed. Nevertheless, the deferral request was denied without conducting this
analysis. This is not sensible.
[18]
The fact that the Officer sought her own expert
opinion on the health issue is some evidence of scepticism about the Applicants’
evidence. Indeed, while it is not advanced as a due process issue in the
present Application, the fact that the Officer did not provide this conflicting
evidence to Counsel for the Applicant for a response, introduces a high level
of unresolved controversy into the application to defer. In my opinion, under
this condition, it was not possible for the Officer to credibly conclude on the
true state of the male Applicant’s health. For this reason, I find the
Officer’s explanation for refusing to defer is untenable. Therefore, I find
that the Officer’s decision is made in reviewable error.
[19]
In the decision under review, the Officer
attempted to conduct an H&C analysis; this is understandable because the Applicants’
plea for humanitarian understanding compels this consideration. However, in my
opinion, in the circumstances of the present case, this consideration can only properly
occur within the forum designed for the purpose: the H&C application
process which the Applicants have invoked. The order resulting from the
present Application is designed to achieve this result.
ORDER
Accordingly, pursuant to s.18.1(3)(b) of the Federal Courts Act,
I set aside the Officer’s decision and refer the matter back for re-determination
before another removals officer, but with the direction that the re-determination
not occur until after the Applicants’ outstanding H&C application is finally
determined.
CERTIFIED QUESTIONS
Counsel for the Respondent proposes the following questions
for certification:
1. What is the correct
standard of review of an officer’s decision, made pursuant to the discretion
set out in section 48 of the Immigration and Refugee Protection Act to
defer removal of persons from Canada?
2. When granting an
application of judicial review, does the Federal Court have jurisdiction to
issue a direction that the re-determination of a decision relating to deferral
of removal not occur until after an outstanding H&C application is finally
determined?
To qualify for certification the issues underlying a
question must: transcend the interests of the immediate parties to the
litigation; be of broad significance or general application; and must be ones
which could be determinative of the appeal (Liyanagamage v. Canada (MCI),
[1994] FCJ No.1637 (C.A.)). In my opinion, the first question proposed by
Counsel for the Respondent meets the criteria for certification, but the second
question proposed does not.
Accordingly, only the first question proposed by Counsel for
the Respondent is certified for consideration by the Federal Court of Appeal.
“Douglas R. Campbell”
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