Date: 20081114
Docket: IMM-1053-08
Citation: 2008 FC 1279
Ottawa, Ontario, November 14,
2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
SOOKELAL
RAMJATTAN
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
issue before the Court is the reasonableness of an Enforcement Officer’s
decision not to defer removal despite the Applicant’s claims that there were
mental health issues and a pending humanitarian and compassionate grounds
application (H&C) justifying the deferral.
[2]
At
the hearing of this matter, the Applicant sought to rely on Baron v. Canada (Minister of
Public Safety and Emergency Preparedness), 2008 FC 341, at least
in respect of a question to be certified, in the eventuality that this
application for judicial review was dismissed on the grounds of mootness.
II. BACKGROUND
[3]
The
Applicant asks that the Enforcement Officer’s decision be referred back to
another enforcement officer for a re-determination and until the H&C
decision is made. The Court understands this request, made in the Applicant’s
Record and reiterated at the hearing, to be a request for deferral of removal
until the H&C is decided.
[4]
The
Applicant, a citizen of Trinidad and Tobago, entered Canada as a visitor
in February 2001 and has had no legal status here after his visitor’s visa
expired.
[5]
The
Applicant’s refugee claim was deemed abandoned, his pre-removal risk assessment
(PRRA) application was denied, and leave for judicial review was also denied.
[6]
In
2006, while the PRRA application was still in process, the Applicant filed an
H&C application which remains pending.
[7]
Following
the negative PRRA decision, the Applicant secured a stay from this Court in
respect of the pending judicial review of the Respondent’s refusal to defer.
However, the Applicant’s leave for judicial review of the refusal to defer was
ultimately dismissed.
[8]
Subsequently,
in February 2008, the Applicant was again scheduled for removal. A deferral
request was denied and this Application for Leave and Judicial Review filed.
[9]
Lastly,
to complete the procedural history, the February 2008 removal was stayed by
Justice Gibson “until the earlier of 30 days after a decision on the
Applicant’s H&C application, and the day on which the application for
judicial review is finally disposed of”. It is the latter, the review of this
deferral decision, which is the matter before this Court.
[10]
The
Applicant, having come to Canada as a visitor, decided to stay. The reason,
so advanced by his sister, was that he showed dramatic psychological and
physical improvement in this country. However, the principal ground for seeking
deferral was the existence of a pending H&C.
[11]
The
Enforcement Officer considered the existence of the pending H&C and noted
that it was not an impediment to removal nor, at the time, was it imminent. The
Officer also considered the Applicant’s mental condition and family status, all
matters considered on the previous deferral decision for which leave was
denied. The Officer found no basis upon which to defer removal.
III. ANALYSIS
[12]
The
standard of review of an enforcement officer’s decision regarding deferral has
been held to be reasonableness. It is also important to note that the range of
reasonable outcomes is narrow given the narrow discretion accorded an
enforcement officer.
[13]
This
case, like so many removals which have been stayed, raises the issue of
mootness (see Baron, above). However, this case is slightly but
significantly different from other cases discussing mootness. In this case,
Justice Gibson, at a time when the issue of mootness was known to the Court, granted
the stay until the H&C was decided (an event that would certainly make this
matter moot) or the final disposition of this review. Justice Gibson’s order
contemplated this Court dealing with the issues in this judicial review. It is
my view that the merits of the decision to refuse deferral should be considered
because of Justice Gibson’s order and the exercise of the Court’s discretion to
hear even a moot case.
[14]
In
my view, the Officer considered all of the relevant evidence before her. There
had already been a valid PRRA which addressed the same issues regarding the
Applicant’s personal circumstances and there was no significant change in those
circumstances.
[15]
I
reject the Applicant’s argument that the jurisdiction to remove “as soon as is
reasonably practicable” (Immigration and Refugee Protection Act, S.C.
2002 c. 27, s. 48) entails a consideration of s. 25 (H&C) factors. To so find
would be to convert a deferral request into an H&C. The mere existence of
an H&C does not make removal impracticable (Simoes v. Canada (Minister of
Citizenship and Immigration), 187 F.T.R. 219).
[16]
There
is nothing unreasonable in the refusal to defer. Further, should the Applicant
be successful on his H&C, there is no impediment to his return to Canada.
[17]
In
addition to the reasonableness of the decision, there is, of course, the fact
that the removal date has come and gone. A new date must be scheduled and,
perhaps, new grounds for deferral advanced.
IV. CONCLUSION
[18]
As
this judicial review is dismissed on grounds other than mootness, no question,
as in Baron, above, will be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed.
“Michael
L. Phelan”
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