Date: 20080521
Docket: IMM-3293-07
Citation: 2008 FC 629
Ottawa, Ontario, May 21,
2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
LEMIE
JANE GADDI PACIA
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
is one more of the many cases in this Court where a stay of removal was granted
by the Court and the underlying judicial review of the Officer’s refusal to
defer eventually comes before the Court.
II. BACKGROUND
[2]
This
Applicant, a citizen of the Philippines, has had the advantage
of virtually every immigration process possible. Her refugee claim was
abandoned; her first H&C application in March 2006 was refused; she was the
subject of an arrest warrant for failure to appear; and her PRRA application
was negative.
[3]
Her
first departure order issued on February 2, 2004 (when her refugee claim was
abandoned) was scheduled to be executed on August 24, 2007. The Application
requested deferral of the August 24, 2007 removal order
because she was pregnant, she had a pending second H&C, she intended to
marry a person who was just arriving in Canada, she had
business interests in Canada, and finally she feared risks upon return to the Philippines. This
deferral request was made on August 10, 2007.
[4]
To
complicate the situation even more, Justice Martineau issued a stay of removal
pending a hearing of the judicial review of the first H&C refusal. That
stay was issued August 22, 2007.
[5]
In
regards to the deferral decision before the Court, this time the Removals
Officer addressed fully each of the grounds advanced.
III. ANALYSIS
[6]
While
the decision in Dunsmuir v. New Brunswick, 2008 SCC 9, has effectively
changed the standard of review of these deferral decisions from the previous
standard of patent unreasonableness to reasonableness, any consideration of a
deferral decision must take into account the highly fact specific nature of
these cases and the limited discretion of a Removals Officer in the context of
the whole legislated scheme of the immigration process. Justice Dawson in Baron
v. Canada (Minister of
Public Safety and Emergency Preparedness), 2008 FC 341, has
clearly explained the limited powers of the Officer in that context.
[7]
There
are four factors which persuade me that judicial review should not be granted:
·
the
date for removal has passed so any removal is stale dated.
·
the
deferral issue has been subsumed by Justice Martineau’s decision to defer
removal in respect of the first H&C decision and therefore removal is moot
until at least the disposition of that judicial review.
·
the
factual matrix before the Removals Officer has changed significantly
particularly now that the pregnancy has run to fruition.
·
the
Removals Officer’s decision on the facts before him was reasonable.
[8]
Given
the overall situation governing Ms. Pacia, any removal order/direction to
report will be issued and any deferral request decided on a very different
factual basis than was before the Removals Officer. I therefore decline any
suggestion that I should issue any order with respect to deferral based upon
the pending H&C application.
IV. CONCLUSION
[9]
Therefore,
this judicial review is dismissed.
[10]
The
issues in Baron, above, while related to this decision, are not
dispositive of this matter. Therefore, I will not certify the same question as
was certified in Baron.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed.
“Michael
L. Phelan”
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