Docket: IMM-226-14
Citation:
2015 FC 410
Ottawa, Ontario, March 31, 2015
PRESENT: The
Honourable Mr. Justice Brown
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BETWEEN:
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EFOSA MONDAY
ODIGIE
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review by
Efosa Monday Odigie [the Applicant] under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] of a decision by an inland
enforcement officer [the Officer] at the Canada Border Services Agency [CBSA],
Enforcement and Intelligence Operations Division, dated January 14, 2014,
wherein the Officer rejected the Applicant’s application for deferral of his
removal from Canada. For the reasons that follow, the application is dismissed.
[2]
The Applicant is a citizen of Nigeria who entered Canada on May 27, 2010 at the Lester B. Pearson International Airport, where he made a refugee claim. On May 10, 2012, the Immigration and Refugee Board of
Canada’s Refugee Protection Division [RPD] found that the Applicant was a
person described in Article 1F(b) of the United Nations Convention Relating
to the Status of Refugees [Refugee Convention] and, accordingly,
found him to be excluded from refugee determination in Canada for serious
non-political crimes pursuant to section 98 of the IRPA. The RPD determined
that the Applicant had committed crimes which were equivalent to section 462.31
(laundering proceeds of crime), section 467.11 (enhancing and facilitating the
ability of a criminal organization), and section 467.12 (benefiting a criminal
organization) of the Canadian Criminal Code, RSC 1985, c C-46. The RPD also
found the Applicant was not credible and stated that “[t]here
were many instances of contradictory or inconsistent evidence between the
various documentary evidence and oral evidence presented by the claimant. The
panel does not believe that the claimant is gay or had a gay relationship with
the Chief which compelled him to commit the crime of money laundering”.
An application for leave was dismissed on October 22, 2012.
[3]
The Applicant applied for Pre-Removal Risk
Assessment [PRRA] on February 11, 2013. On October 24, 2013, the PRRA officer
found that most of the Applicant’s evidence was not connected to the particular
risk allegations and that there would be a viable Internal Flight Alternative
[IFA] in Lagos, and accordingly rejected his PRRA application. An application
for leave was dismissed on May 23, 2014.
[4]
The Applicant had also filed an application for
permanent residence based on humanitarian and compassionate [H&C]
considerations which was refused on October 23, 2013 by an officer who found
that the Applicant had brought forward evidence establishing nothing more than
a minimal level of economic and social establishment in Canada. The H&C officer also found that the Applicant would likely not suffer social and state
discrimination of prosecution in Nigeria because of his sexual orientation and
that he was more likely than not to be heterosexual and not homosexual. The
Applicant did not seek leave for judicial review.
[5]
The Applicant also filed an application for
permanent residence under the Spouse or Common-Law Partner in Canada Class
which was refused on September 30, 2013. His application for leave was
dismissed on February 5, 2014.
[6]
The Applicant attended a Pre-Removal interview
with CBSA on November 25, 2013, where he was informed about the negative PRRA
decision and pending removal arrangements. He requested and was granted a
deferral to remain in Canada over the holiday period and to make arrangements
for his return to Nigeria, but did not follow through with this agreement.
[7]
On January 3, 2014, the Applicant again attended
at CBSA and was given “Direction to Report”
indicating that his removal was scheduled for January 16, 2014. The Applicant
submitted an application to defer his removal from Canada on January 6, 2014,
alleging that he obtained two new police documents (an arrest warrant dated
November 22, 2012 and a letter from the Nigerian Police Force dated December 4,
2013 confirming the existence of an arrest warrant against the Applicant)
showing that he is wanted for sexual-orientation related offences in Nigeria.
The request for deferral of his removal was refused on January 14, 2014. The
Applicant filed an application for leave and judicial review of that decision
as well as a motion to stay the deportation on January 13, 2014. On January 15,
2014, this Court stayed removal pending the disposition of this application for
leave and judicial review, and leave was subsequently granted on December 29,
2014.
[8]
The Officer correctly noted that he is under a
statutory obligation to enforce removal orders “as soon
as possible”, and that although he does have a discretion to defer
removal orders, that discretion is “extremely limited”
and if an enforcement officer does choose to exercise this discretion, they
must do so while continuing to enforce a removal order as soon as possible. The
Officer also surveyed the immigration and refugee procedural history of the
Applicant (RPD determination, H&C determination, PRRA determination,
applications for leave and judicial review).
[9]
The Officer noted that the Applicant had filed
an application for leave and judicial review of his negative PRRA decision on
December 2, 2013, but leave had not been granted or dismissed yet (as noted
above, leave was later dismissed May 23, 2014). The Officer noted that the mere
filing of an application did not necessarily affect normal immigration
processing and did not preclude the Minister’s officials from enforcing the
provisions of the IRPA, including the enforcement of a removal order. The
Officer also noted that the Applicant could submit a stay motion if he wished
to remain in Canada during the determination of his application for leave and
judicial review of the negative PRRA decision.
[10]
The Officer did not consider evidence that
predated the negative PRRA determination and found that some of the Applicant’s
evidence had been considered in the PRRA and H&C applications. The Officer
also found that the H&C and PRRA officer had already considered the
Applicant’s claim that he would be at risk as a homosexual in Nigeria.
[11]
The Officer acknowledged the two new documents
obtained by the Applicant after the negative PRRA decision, namely an affidavit
to which was attached an arrest warrant and a letter by the police force
confirming the existence of an arrest warrant. The Officer found that the
Applicant had submitted insufficient new evidence to support the allegation
that he will be arrested and tortured upon his return to Nigeria, due to an outstanding warrant for his arrest issued November 22, 2012. The finding of
insufficient new evidence of risk led to the Officer’s rejection of the request
to defer. On this basis, the Officer was not convinced that the Applicant would
be at risk of death, extreme sanction or inhumane treatment as a consequence of
these accusations. On this point, the Officer also found that the general
allegations of risk made by the Applicant had already been considered by the
H&C and PRRA officer who considered whether the Applicant would face risk
due to his sexuality as a result of a relationship with Chief Osagiede. The
Officer noted that the Applicant had been under a deemed deportation order for
approximately 1 year, 2 months and 3 weeks. The Officer held that a deferral of
the execution of the removal order was not appropriate in the circumstances of
this case.
[12]
As to standard of review, in Dunsmuir v New
Brunswick, 2008 SCC 9 at paras 57, 62 [Dunsmuir], the Supreme Court
of Canada held that a standard of review analysis is unnecessary where “the jurisprudence has already determined in a satisfactory
manner the degree of deference to be accorded with regard to a particular
category of question”. The Federal Court of Appeal held in Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 at para 25 [Baron]
that an enforcement officer’s refusal to defer removal is to be reviewed on the
reasonableness standard of review. In Dunsmuir at para 47, the Supreme
Court of Canada explained what is required of a court reviewing on the
reasonableness standard of review:
A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[13]
An enforcement officer’s discretion to defer
removal is very limited. The Federal Court of Appeal held in Baron at
para 49, citing Simoes v Canada (Minister of Citizenship and Immigration)
(2000), 187 FTR 219 (FC), that “a removal officer may
consider various factors such as illness, other impediments to travelling, and
pending H&C applications that were brought on a timely basis but have yet
to be resolved due to backlogs in the system”. The Federal Court of
Appeal further held in Baron at para 51, and confirmed in Canada (Minister of Public Safety and Emergency Preparedness) v Shpati, 2011
FCA 286 [Shpati], that:
In order to respect the policy of the Act
which imposes a positive obligation on the Minister, while allowing for some
discretion with respect to the timing of a removal, deferral should be
reserved for those applications where failure to defer will expose the
applicant to the risk of death, extreme sanction or inhumane treatment.
[emphasis added].
The Federal Court of Appeal in Shpati
at para 44 also informs us that “[w]hen […] an officer
is requested to defer removal after a negative PRRA, any risk relied on must
have arisen after the PRRA”.
[14]
The Applicant alleges that he obtained new
evidence after his negative PRRA decision, which he filed with his deferral
application. He said he had urged his father’s friend in Nigeria to verify whether he was able to relocate safely in other parts of Nigeria. This same friend had filed an affidavit less than a year earlier in which, while he could
have, he did not inquire about outstanding arrest warrants. The Applicant
submits that this new evidence goes to different risk because the agent of
persecution in his refugee claim and PRRA applications were Chief Osagiede and
his cohorts, while the agent of persecution in his deferral application is the
State of Nigeria. The Applicant further submits that Chief Osagiede and his
gang were not persecuting the Applicant because of his sexual orientation but
for their lost money.
[15]
I disagree. The RPD had found that the Applicant
was not credible. The H&C officer found that the Applicant would likely not
suffer social and state discrimination or prosecution in Nigeria because of his sexual orientation. Neither the H&C officer nor the RPD believed that the
Applicant was gay or had a gay relationship. Those findings were left
undisturbed because his applications for leave to this Court were dismissed.
[16]
This Court, in Wang v Canada (Minister of Citizenship and Immigration), 2001 FCT 148 at para 50 said:
[50] The discretion to be exercised
does not consist of assessing the risk. The discretion to be exercised is
whether or not to defer to another process which may render the removal order
ineffective or unenforceable, the object of that process being to determine
whether removal of that person would expose him to a risk of death or other
extreme sanction. If the process has not been initiated at the time of the
request for deferral, or has been initiated as a result of the removal process,
the person exercising the discretion could conclude that the conduct of the
applicant is inconsistent with an allegation of fear of death or inhumane
treatment. This is not a question of assessing the risk but rather of assessing
the bona fides of the application.
I make two points based on this finding.
[17]
First, as the Respondent rightly submits, it was
reasonable for the Officer to refuse to defer the Applicant’s removal. I note
that while the arrest warrant that was filed as new evidence is dated November
22, 2012, the Applicant had applied for PRRA on February 11, 2013, which was
rejected on October 24, 2013. In other words the warrant was there to be found,
but the friend did not ask for it then, and only asked for it in December 2013.
The Officer had every right, and in my view was obliged to weigh the
sufficiency of this allegedly new evidence in the context of the Applicant’s
lengthy immigration history and the reasons for his inadmissibility in the
first place. The Officer did so in detail. The Officer was entitled to ask
whether the new evidence was sufficient evidence of new risk to warrant a
deferral. The Officer was under no obligation to accept as determinative
whatever alleged new evidence the Applicant submitted, least of all when
different evidence is rolled out at each successive level in the Applicant’s
dealings with Canada’s immigration system.
[18]
In my view, the Officer had every reason to be
suspicious of the sufficiency of this new evidence, and to take care in
considering the sufficiency of evidence supporting the request to defer. On the
record, the Applicant was not admissible because of his criminal
background. In addition, he was found not credible by the RPD, a decision which
was not disturbed by this Court. His PRRA was also rejected on the grounds of
insufficiency of evidence (and the availability of an IFA in Lagos), another
decision left undisturbed by this Court. The risk now alleged is not the first,
nor even the second or third variant of risk related to sexual orientation
raised by the Applicant in his dealings with Canada’s immigration system. This
is the fourth risk alleged by this Applicant. It is noteworthy that each new
risk reformulated the previous, and that all turned on variants of his sexual
orientation, his claims in respect of which were rejected by the RPD and by the
PRRA and H&C officers in their turn.
[19]
Sufficiency of evidence is within the Officer’s
purview at the removal stage. This Court generally does not re-weigh the sufficiency
of evidence, which is in essence what the Applicant requests. I see no merit in
the Applicant’s arguments to set aside the Officer’s decision based as it was
on the sufficiency of evidence.
[20]
I also note that while the application for leave
respecting the Applicant’s negative PRRA was outstanding at the time that the
Officer refused to defer, even if the Applicant should have the benefit of any
doubt on that account, which is a dubious proposition, that doubt evaporated
when this Court dismissed his leave to seek judicial review on May 23, 2014.
[21]
In my opinion, the Officer’s decision is
justified, transparent and intelligible. It falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
Therefore, judicial review must be dismissed.
[22]
Neither party proposed a question for
certification, and none arises.
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