Docket: IMM-2311-11
Citation: 2011 FC 1428
Ottawa, Ontario, December 14, 2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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REN ZHAO JIN, REN JIA HUI
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Applicant
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and
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MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
Introduction
[1]
The
applicants seek an order setting aside a decision by a Canada Border Services
Agency (CBSA) officer, who under section 48 of the Immigration and Refugee
Protection Act, 2001, c. 27 (IRPA), refused
to defer removal of the applicants to Chile pending determination by the
Minister of Citizenship and Immigration of their application for humanitarian
and compassionate (H&C) relief under section 25 of the IRPA.
[2]
The
applicants, husband and wife, have been living in Canada for a number
of years without legal status. They became subject to removal scheduled for
April 14, 2011, a stay of which was granted by a Judge of this Court pending
disposition of this judicial review application.
[3]
The
applicants’ efforts to enter and remain in Canada are long and
storied. In May 2001, the applicants entered Canada at Toronto’s
Lester
B. Pearson International Airport and were
granted status for six months. In January 2002, after the expiry of their
visa, the applicants made a refugee claim. In that same month, a report under
section 27 of the IRPA was prepared because the applicants immigrated
without the proper visa. Conditional departure orders were also issued. In
October 2002, their refugee claims were refused. In November 2004 they submitted
Pre-Removal Risk Assessment (PRRA) applications. In March 2005 negative
decisions were rendered in the PRAA applications. The PRRA decisions were
rendered in person and the applicants were advised to report to the Chilean
Consulate to obtain emergency travel documents.
[4]
Removal
arrangements were scheduled for June 2005 however, the applicants failed to
report to the Chilean Consulate. A call-in notice was sent to the applicants
advising them of an interview scheduled for June 15, 2005. The applicants
failed to attend this interview as well. A Canada-wide arrest warrant was
issued for the applicants.
[5]
In
October 2005 the Case Processing Centre in Vegreville, Alberta received
Mrs. Ren’s application for permanent residency based on H&C grounds with
her husband listed as a dependent. The application was placed in the queue and
referred to Citizenship and Immigration Canada (CIC) in London, Ontario. Later
than month, the applicants were arrested by CBSA in London, Ontario. The
applicants were released on a $10,000 cash bond, $10,000 performance bond and
terms and conditions which included monthly reporting. In July 2007, Mrs.
Ren’s H&C application was refused.
[6]
Some
30 months later, in November 2009, Mr. Ren submitted an application for
permanent residency based on H&C grounds, this one listing his wife as a
dependent. In February 2010 this second H&C application was placed in the
queue and in May 2010, referred to CIC Scarborough, Ontario. In March 2011 the
applicants attended the Greater Toronto Enforcement Center (GTEC) for an
interview and were advised that they were unlawfully in Canada. After
being given the option to do so the applicants advised that they would like to
purchase their own tickets to effect their own removal.
Issue
[7]
The
issue in this case is whether the decision of the CBSA Enforcement Officer (the
Officer) to refuse the applicant’s deferral of removal application is
reasonable per Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
Analysis
[8]
Two
arguments are advanced in support of setting aside the decision of the removals
Officer. The first is that the decision was unreasonable in that it did not
take into account the applicants’ personal and business circumstances. The
second is that the decision did not fairly account for their pending, second,
H&C application, now some 20 months in the queue.
[9]
The
first issue is moot. The applicants sought a 90 day deferral in order that
they could liquidate their business interests in an orderly manner. They have
now had, by virtue of the operation of an order of this Court, over twice the
period of time requested. The factual substratum of the argument no longer
exists.
[10]
The
criteria set forth in Borowski v Canada (Attorney
general),
[1989] 1 S.C.R. 342 informs the exercise of discretion whether to hear another
matter that would otherwise be moot. As noted, there would be no practical
effect to a decision as the factual substance has disappeared. The removal
order is spent, and the applicants have had more time than they originally
requested to liquidate their assets. Nor would the interests of judicial
economy be served, as the issue raises no point of jurisprudential value nor
would it resolve a controversy between the parties.
Pending H&C
Application
[11]
The
second ground on which it is said that the removal Officer’s decision should be
set aside, namely the pending H&C application, has no merit. The Officer
observed that the factors advanced in the pending H&C application were similar
to those advanced in the first. The applicants contend that the first H&C
application was inadequate, prepared as it was without the benefit of counsel,
and further, because it failed to acknowledge the presence in Canada of the
applicants’ cousin and aunt. I agree with the observations of Justice Leonard
Mandamin who noted, albeit in the context of the stay application, that these
arguments do not equate to a serious issue let alone a ground on which a fully
reasoned decision of a removals officer can be set aside.
[12]
The
respondent also argues that the second H&C application was not timely,
coming as it did some two years after the first negative H&C application.
In this regard, the observations of Justice Russel Zinn in Jonas v Canada (Citizenship
and Immigration), 2010 FC 273 are directly apposite:
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; however, it is of note that the applicant did not file it until
almost five years after the rejection of his refugee claim by the RPD. The
officer concluded that a decision was not imminent even though the application
had been transferred to the local CIC Office. The officer’s determination that
the pending H&C application did not warrant his exercise of discretion was
reasonable.
[13]
The
case law is clear that the existence of a pending H&C application does not,
absent special circumstances, warrant a deferral. Where it is apparent that
the enforcement officer is aware of the H&C application, the weight to be
assigned to it is a matter of discretion: Khamis v Canada (Citizenship
and Immigration), 2010 FC 437 at para 29. Moreover, the Federal Court of
Appeal made it clear, in Baron v Canada (Minister of
Public Safety and Emergency Preparedness), 2009 FCA 81, [2010] 2
FCR 311, that the boundaries of an enforcement officer’s discretion are narrow
and circumscribed. The Court of Appeal notes that if applicants are successful
in their H&C application, they can be made whole by readmission. Absent
special considerations, a pending H&C application will not warrant a stay
of removal unless a threat to personal safety is made out in the evidence.
[14]
In
this case, given the applicants’ lengthy immigration history, and the delay
between the refusal of the first H&C (July 2007) and the initiation of the
second (November 2009), the decision of the Officer not to defer by reason of
the pending H&C is justifiable.
[15]
The
application for judicial review is dismissed.
[16]
No
question for certification has been proposed and none arises.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review be and is hereby
dismissed. No question for certification has been proposed and none arises.
"Donald
J. Rennie"
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