Docket: IMM-1303-15
Citation:
2015 FC 1216
Ottawa, Ontario, October 27, 2015
PRESENT: The
Honourable Mr. Justice Zinn
|
BETWEEN:
|
|
NADJA BETTHAUS
|
|
Applicant
|
|
and
|
|
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
Ms. Betthaus is a German citizen. She is in
Canada illegally and a removal order has been issued against her. She is
seeking judicial review of a decision by an enforcement officer denying her
request to defer her removal from Canada, pending the outcome of her
humanitarian and compassionate [H&C] application.
[2]
The parties are agreed that the style of cause
must be amended because there are errors in the names of both the applicant and
respondent.
Background
[3]
In May 2010, Ms. Betthaus came to Canada on a
one year working holiday visa. During her time in Canada, she started a
relationship with Matthew Phillips and became pregnant. In May 2011, she left
Canada when her visa expired.
[4]
In June 2011, Ms. Betthaus sought to re-enter
Canada as a visitor. During questioning at the airport, she failed to inform the
Canada Border Services Agency [CBSA] that she was pregnant and intended to stay
in Canada indefinitely. She was granted a visitor’s visa, valid until August
31, 2011.
[5]
In July 2011, she married Matthew Phillips and
in October 2011, she gave birth to her son, Mason Dean Phillips.
[6]
In August 2014, the Applicant was assaulted by
her husband. Matthew Phillips was arrested and charged with assault. Ms.
Betthaus stopped living with her husband after the assault, and moved into the
basement of the house of his parents, where she and Mason still live.
[7]
In October 2014, the CBSA was informed that Ms.
Betthaus had applied for income assistance. Up until this point, it appears
that the CBSA was unaware that she had overstayed her visa.
[8]
In November 2014, two CBSA officers interviewed
Ms. Betthaus about her circumstances and immigration status. The next day, an
exclusion order was issued against her. In December 2014, she filed an H&C
application for permanent resident status.
[9]
In March 2015, the Applicant requested a
deferral of her removal from Canada, pending the outcome of her H&C application.
The entire H&C application was placed before the enforcement officer with
the request for deferral with the observation that the application “is based on the best interests of Ms. Betthaus’s three year
old Canadian child Mason Dean Phillips.” Among the documents filed in
support of the application is a letter dated November 27, 2014, written by
Samantha Hosie, Child Protection Social Worker, Ministry of Child and Family
Development, in which she says:
The Director has determined that Mrs.
Phillips needs to be Mason’s primary caregiver, due to Mr. Phillips violence
compounded by substance abuse. At this time Mason is only able to see his
father supervised at the discretion of the Director. As a professional child
protection worker, it is my opinion that it is undoubtedly in Mason’s best
interests that Mrs. Phillips remains in Canada to care for him. Mason is
exhibiting signs of trauma due to witnessing violence against his mother and is
currently receiving therapy for this. It is highly likely that should Mason
lose his mother, he will be further traumatized. Furthermore, if Mrs.
Phillips is issued a removal order the Director cannot currently, or in the
immediate future, support Mr. Phillips as Mason’s primary caregiver.
Please notify the Director immediately if a
removal order is issued as the Director will need to take immediate action to
protect this child. [emphasis added]
[10]
On March 17, 2015, the enforcement officer issued
his decision denying the deferral and this application for leave and judicial
review was filed that same day.
[11]
Ms. Betthaus’s main contention is that the enforcement
officer unreasonably ignored evidence that her child would be traumatized by
being separated from her, if she were removed.
[12]
The officer writes:
Jurisprudence has shown that when
considering the short term best interests of a child the obligation is limited
to circumstances in which there is no practical alternative to deferring
removal in order to ensure the care and protection of the child. The removal
officer must be satisfied that removal would not place the child at risk.
Evidence must demonstrate imminent risk of harm should the child remain in
Canada while the parent is removed. This does not appear to be the case a
letter from the Ministry of Children and Family Development (MCFD) indicate
that they will take immediate action to protect the child if Nadja Betthaus is
removed.
[13]
Ms. Betthaus submits that the enforcement
officer’s decision is unreasonable because in finding that there was no evidence
of imminent risk of harm to Mason, the officer ignored or failed to consider
the opinion of Ms. Hosie that “it is highly likely that
should Mason lose his mother, he will be further traumatized.”
[14]
The enforcement officer called Ms. Hosie
after receiving the deferral request, but the applicant criticizes him for
failing to ask “[w]hat trauma the child had suffered;
what counselling had been offered, whether the child benefitted from the
counselling, what signs or behaviours the child exhibited that lead Hosie to
believe the child had been traumatized, or why she believed the child would be
further traumatized if separated from his mother; or how severe or minor the
trauma might be.”
[15]
She submits that having overlooked that the
child would very likely be further traumatized if separated from his mother, it
cannot be said that the officer considered all the relevant evidence.
Accordingly, she submits that while the decision is intelligible, it is not
justified and is not defensible in respect of the facts placed before the
officer.
[16]
I am unable to agree with the submission of the applicant
that the decision is not justified based on the evidence before the officer or
that the officer failed to consider all of the evidence.
[17]
It is clear from the record that the enforcement
officer spoke to Ms. Hosie after receiving the request for deferral and before
making his decision. The notes are brief but reveal that he had a discussion
with respect to Mason’s risks. He writes:
During the interview I learned the following
information:
…
-if BETTHAUS leaves Mason will be at risk;
MCFD would take custody as PHILLIPS is not able to take custody of Mason at this
time.
-BETTHAUS is the primary parent
I am unable to
conclude, as the applicant wishes, that the risks discussed did not include the
traumatization mentioned in the letter that prompted this call.
[18]
That Mason may be traumatized by the loss of his
mother is sad, but the opinion the applicant relies on, which was the only
evidence before the officer, does not even remotely suggest that this result
cannot or will not be ameliorated by the actions of the MCFD. In fact, it
appears it has already been involved in obtaining therapy for the trauma Mason has
previously experienced. Moreover, it is noted that in her H&C application
Ms. Betthaus provided evidence that Mason has a strong relationship with his
grandparents and other relatives.
[19]
In the face of this evidence, I cannot conclude
that the enforcement officer’s decision not to defer removal was unreasonable.
[20]
Neither party proposed a question for
certification.
Email this Content