Date:
20130528
Docket:
IMM-3742-12
Citation:
2013 FC 562
Ottawa, Ontario,
May 28, 2013
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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JOANNA JOSEPH,
MERISSA RUTH RUBEN
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Applicants
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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
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a decision
by an inland enforcement officer of the Canada Border Services Agency (the
officer) on April 23, 2012, denying the applicants’ request for removal from
Canada to be deferred.
[2]
The applicants request that the officer’s
decision be set aside and the application be referred back to the Canada Border
Services Agency (CBSA) for redetermination.
Background
[3]
The
principal applicant, Joanna Joseph and her daughter, Merissa Ruth Ruben, are
citizens of St. Lucia. The principal applicant’s common law spouse began
abusing her in September 1998. He sexually assaulted her after the birth of her
daughter in May 2000. The abuse continued and in February 2002, the principal applicant’s
abuser hit her with a piece of wood and broke her finger. On March 23, 2002,
the principal applicant fought with her spouse and he attempted to kill her
with a knife. The principal applicant then escaped to Canada. Since her arrival in Canada, her abuser was charged with sexually assaulting a
young woman, but is now out of jail and has threatened to kill the principal applicant
and her daughter.
[4]
The
applicants made a claim for refugee protection which was denied on January 11,
2011. The applicants made a pre-removal risk assessment (PRRA) application on
October 28, 2011 which was denied on March 9, 2012.
[5]
On
April 3, 2012, the principal applicant made a verbal request for deferral in
order for the applicant’s daughter to complete the school year. The removal
officer refused on the basis that the daughter would not be graduating that year.
[6]
On
April 18, 2012, the applicants made a written request for deferral.
Officer’s Decision
[7]
The
officer refused the deferral request on April 23, 2012. The officer’s reasons
began with a summary of the applicants’ immigration history. The officer noted
the applicants were under an enforceable removal order and that the CBSA had an
obligation to enforce removal orders as soon as reasonably practicable. The
officer excerpted the Refugee Protection Division (RPD) decision rejecting the
applicants’ claim on the basis of state protection, as well as the PRRA
decision. The officer noted the applicants were seeking a judicial review of
the PRRA decision but that there was no stay of removal in such situation.
[8]
The
officer noted the applicants’ counsel had identified the basis for the request
to defer as allowing the principal applicant’s daughter to complete school and
for the principal applicant to seek counselling for the anxiety and stress
associated with her impending deportation. In support of these reasons, the
applicants submitted a report card and a psychological report.
[9]
The
officer noted a previous deferral request had already been made on the basis of
the principal applicant’s daughter finishing the school year. The officer
concluded deferral was not warranted as the daughter would not be graduating in
that school year and that it is reasonable to expect that she will be able to
successfully integrate into the St. Lucian school system.
[10]
The
officer noted that the applicants had developed a degree of establishment in Canada and acknowledged that the report indicated that their impending removal caused the
principal applicant great anxiety. The officer was sympathetic to the principal
applicant, but noted that feelings of distress are an inherent part of the
removal process. The officer noted that the applicants’ counsel had requested a
90-day deferment for counselling, but that counsel had not demonstrated that
the applicants would be accepting of removal if granted a deferral and had not
demonstrated the applicants would be unable to apply for permanent residence
outside of Canada. The officer was not satisfied that a deferral was warranted.
Issues
[11]
The
applicants submit the following points at issue:
1. Did the officer
fail to consider the evidence and assess factors relating to the applicant
child’s best interests?
2. Did the officer
fail to assess the applicant child’s need for counselling?
3. Did the officer
fail to assess whether the applicant child would be able to transition into the
St. Lucian education system without loss of her current’s year educational
attainment?
4. Did the officer
fail to consider the time the applicants would need to marshal their resources
in preparation for removal?
[12]
I
would rephrase the issues as follows:
1. Is the
application now moot?
2. Should this Court
exercise its discretion to decide the issue?
3. What is the
standard of review?
4. Did the officer
err in refusing the request to defer?
Applicants’ Written Submissions
[13]
The
applicants argue this case is not moot, since there continues to be an issue of
contention between the parties as the CBSA continues to fail to accept that the
grounds advanced by the applicants warrant deferral. The applicants adopt Mr.
Justice Leonard Mandamin’s reasons from the stay motion as an accurate
reflection of the law and facts of the case.
[14]
The
applicants’ request to defer was based on the school year of the child, the
need for the child to have counselling and the need for the applicant to
marshal resources to resettle in St. Lucia. The officer failed to properly
address these exigent circumstances.
[15]
While
the officer took note of the psychotherapist’s report, he did not assess the applicant
child’s reported need for counselling. The officer did not assess whether the applicant
child would be able to transition to the St. Lucia school system without losing
a year of educational attainment. Given that the applicant child was several
weeks away from completing her grade level, the officer had an obligation to
assess this evidence.
[16]
Finally,
the psychological report indicated the principal applicant would need to get
her Canadian business in order and prepare to provide for her child in St. Lucia. Case law indicates the officer had a duty to consider this factor.
Respondent’s Written Submissions
[17]
The
respondent submits this case is now moot, as the applicants sought a 90 day
deferral and those 90-days have now passed. The applicants have had the
requested time to receive counselling and facilitate transition.
[18]
Alternatively,
the respondent argues the officer considered all the issues raised by the
applicants. It is clear from the request that it was based on the principal applicant’s
psychological condition. Insofar as the applicants raise other issues on this
judicial review, they were not before the officer. The applicants’ submissions
were five pages in length and devoted almost entirely to discussing the failed
PRRA. There was no reference to the loss of a school year or time necessary to
sell a business.
[19]
The
officer was not under a duty to consider humanitarian and compassionate
(H&C) factors and is not required to undertake a substantive review of the
best interests of the child. The applicants’ submissions did not raise the
issue of the interests of the child. A removal officer’s obligation to consider
the best interests of the child is limited to circumstances where there is no
practical alternative to deferring removal. This was not the case here as the
child would be relocating with her mother.
[20]
There
was no evidence provided by the principal applicant of her claim that the
parents of her abuser’s other victim were seeking retribution against her. This
single sentence did not put an obligation on the officer to consider that risk.
[21]
The
need for counselling for the applicant child was not raised as part of the
deferral request. While the report notes that both the principal applicant and
the child would be open to therapy, the issue that the applicant child needed
counselling was not raised for consideration. Therefore, the officer did not
err in failing to consider this issue.
[22]
On
the issue of the school year, the principal applicant provided no evidence the
child would not able to transition into the St. Lucian school system so it was
reasonable for the officer to conclude this did not warrant deferral.
[23]
The time
necessary to transition back to St. Lucia was not raised as a factor for
consideration in the deferral request. The applicants have been in Canada since 2002 and it is arguable that since that time, the applicants have had
sufficient notice to make preparations for relocating.
Analysis and Decision
[24]
Issue 1
Is
the application now moot?
In
Borowski v Canada (Attorney General), [1989] 1 S.C.R. 342 at 353, Mr.
Justice John Sopinka set out the basic principles underlying the doctrine of
mootness:
The
general principle applies when the decision of the court will not have the
effect of resolving some controversy which affects or may affect the rights of
the parties. If the decision of the court will have no practical effect on such
rights, the court will decline to decide the case. This essential ingredient
must be present not only when the action or proceeding is commenced but at the
time when the court is called upon to reach a decision. Accordingly if, subsequent
to the initiation of the action or proceeding, events occur which affect the
relationship of the parties so that no present live controversy exists which
affects the rights of the parties, the case is said to be moot. The general
policy or practice is enforced in moot cases unless the court exercises its
discretion to depart from its policy or practice.
[25]
In Baron v Canada (Minister of Public Safety
and Emergency Preparedness), 2009 FCA 81, [2009] FCJ No 314, the Court of
Appeal held that in the context of a request to defer, where the events
identified by the applicant as justify the deferral have passed, a judicial
review of the refusal to defer becomes moot (at paragraph 37):
As I understand Strayer J.'s Reasons, it is the passing of the
events in respect to which the applicant was seeking a deferral of his removal,
i.e. a Family Court conference and a medical appointment, which rendered the
judicial review application moot. In those circumstances, as Strayer J. says
above, "... there can be no practical effect of a judicial review
decision". I cannot but agree with that statement in light of the facts
before the learned Judge.
[26]
In
this proceeding, the applicants requested a deferral of 90 days. This time has
now passed and no event identified by the applicants in their request is
pending. Therefore, this application is moot. If there are new reasons to defer
the removal of the principal applicant and her child, they should be
incorporated into a fresh request to defer and are irrelevant to this proceeding.
[27]
Issue
2
Should this Court
exercise its discretion to decide the issue?
In Borowski above, three
factors were identified for a court to consider contemplating whether to
exercise its discretion to hear a moot case (at pages 358 to 363):
1. whether
an adversarial relationship remains;
2. a
concern for judicial economy, hearing moot cases being potentially warranted
where the situation is one that is “capable of repetition, yet evasive of
review”; and,
3. the Court’s awareness of its adjudicative
function.
[28]
While
I appreciate that requests to defer may often be moot by the time they reach a
judicial review on the merits, I do not believe they have generally been
“evasive of review” by this Court, if only because my colleagues have been
willing to exercise their discretion in those moot cases where a decision on
the merits would be particularly instructive. This case, however, presents no
unique or difficult issue, as the applicants’ issues relate to assessment of
particular evidence.
[29]
Similarly,
while I appreciate that providing guidance to enforcement officers in
exercising their discretion is useful (see Katwaru v Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 1045 at
paragraph 27, [2008] FCJ No 1340), I see no issue in this case that would
provide particular guidance if it were resolved.
[30]
In
applying the factors above, I find that an adversarial relationship no longer
remains as the applicants’ removal did not occur during the requested time
period. As described above, I do not find there to be any compelling reason as
contemplated by the second and third factors of the test for resolving this
dispute.
[31]
Due
to my decision not to resolve the dispute, I need not consider the third and
fourth issues.
[32]
The
application for judicial review is therefore dismissed.
[33]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
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48.
(2) 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.
72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
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48.
(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.
72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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