Date: 20090313
Docket: A-165-08
Citation: 2009 FCA 81
CORAM: DESJARDINS
J.A.
NADON
J.A.
BLAIS
J.A.
BETWEEN:
SERGIO ADRIAN BARON
MARIA FERNANDA RIQUELME
Appellants
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT
NADON J.A.
[1]
This is an
appeal from a decision of the Federal Court, 2008 FC 341, dated March 13, 2008,
pursuant to which Madam Justice Dawson dismissed the appellants’ judicial
review application on the ground that it was moot. In so concluding, the
learned Judge certified the following question:
Where an
applicant has filed an application for leave and judicial review challenging a
refusal to defer removal pending a decision on an outstanding application for
landing, and a stay of removal is granted so that the person is not removed
from Canada, does the fact that a decision on the underlying application for
landing remains outstanding at the date the Court considers the application for
judicial review maintain a “live controversy” between the parties, or is the
matter rendered moot by the passing of scheduled removal date?
[2]
As the certified
question makes clear, the appellants filed an application for leave to commence
a judicial review following the refusal by an enforcement officer to defer
their removal from Canada until a decision had been rendered with regard to a
humanitarian and compassionate application (“H&C application”) made by them
pursuant to section 25 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the “Act”).
[3]
Two issues
arise in this appeal. The first one is the issue of mootness to which the
certified question pertains. The second issue, which we need address only if we
conclude that the judicial review application is not moot, concerns the
reasonableness of the enforcement officer’s decision to refuse to defer the
appellants’ removal from Canada.
[4]
I now turn
to the facts relevant to the disposition of the appeal.
THE FACTS
[5]
The
appellants are citizens of Argentina who entered Canada in April 2000 as visitors. In
November 2000, shortly after their visas expired, they filed claims for refugee
protection which were rejected by the Convention Refugee Determination Division
of the Immigration and Refugee Board on May 30, 2002. As a result, the
departure orders made against them when they filed their refugee claims became
effective. On October 16, 2002, their application for leave to commence a
judicial review application was dismissed by the Federal Court.
[6]
On
November 30, 2004, counsel for the appellants made an inquiry with regard to an
H&C application which, according to counsel, had been submitted on behalf
of the appellants in March 2003. The Case Processing Centre in Vegreville
responded to this inquiry and advised counsel that it had no record of an
H&C application having been filed on behalf of the appellants.
[7]
In January
2006, warrants were issued against the appellants by reason of their failure to
report for a pre-removal interview. The warrants were executed against them in
March and July 2006, at which time they were again informed that there was no
record of a pending H&C application made on their behalf.
[8]
On
September 5, 2006, the appellants filed an H&C application which was
returned to them for insufficient funds. The application was resubmitted on
December 8, 2006, this time with the proper funds. During that period, the
appellants also filed a pre-removal risk assessment (a “PRRA”) which was
refused. As a result, the appellants were served with a direction to report for
removal from Canada on January 18, 2007.
[9]
The
appellants having purchased airline tickets for themselves and their children for
a return to Argentina on February 15, 2007, their
removal was deferred to that date so as to allow them extra time to make necessary
arrangements for their departure from Canada.
I should point out here that the appellants have two Canadian-born children,
Yan Sebastian who is 7 seven years and Zoe who is 4 years old (respectively 5
and 2 years old at the time of the enforcement officer’s decision)..
[10]
Notwithstanding
the foregoing, on January 26, 2007, the appellants made a further request to have
their removal deferred, i.e. that deferral be granted until such time as their
H&C application had been decided. On January 29, 2007, the enforcement
officer refused to defer their removal.
[11]
This led
the appellants to seek leave of the Federal Court to commence a judicial review
application of the enforcement officer’s decision. On February 9, 2007, O’Keefe
J. stayed the appellants’ removal from Canada until a decision had made on their judicial
review application and on October 19, 2007, leave to pursue a judicial review was
granted by the Federal Court.
[12]
The
appellants’ judicial review application was heard by Dawson J. on January 17, 2008. She dismissed it on March 13, 2008. It is to that decision that
I now turn.
DECISION OF THE FEDERAL COURT
[13]
Dawson J. found the appellants’
judicial review application to be moot. In her view, a decision on the merits
of the application would not resolve any controversy between the parties. The
substance of the learned Judge’s reasoning appears from paragraphs 33 to 38 of
her Reasons, which I reproduce:
[33] The
applicants are subject to a valid removal order and were directed to report for
removal on January 18, 2007, on Air Canada flight #92. In order
to issue the direction to report, the CBSA was first required to make a number
of travel arrangements, including ensuring the availability of travel
documents, an itinerary and airline tickets, and to notify the airline of its
requirement to carry a foreign national from Canada.
[34] The
effect of the stay issued by the Court was to render those arrangements
nugatory when the date scheduled for removal passed and the applicants remained
in Canada. Whether the
Court now decides that the decision of the enforcement officer was reasonable
or not, the applicants have received the deferral that the officer refused. It
is now an abstract question whether the enforcement officer ought to have
deferred removal.
[35] For
the following reasons, I can see no practical effect on the rights of the
parties if this case is decided on its merits. If the case is decided and
dismissed, the stay will come to an end, the CBSA can make new removal
arrangements, and the applicants can request deferral again. That same result
will occur if the application is allowed on the same basis as in Samaroo,
cited above. The validity of the removal order is not affected; the applicants
remain subject to removal.
[36] In
either event, the parties will only have the benefit of the Court's view of the
propriety of removal on stale-dated facts. However, the exercise of discretion
to defer removal is very fact-based. There is no way of knowing whether, since
the decision at issue was made, there have been intervening circumstances of
risk, pregnancy, birth, illness, or the like. Further, the jurisprudence of
the Court is to the effect that the length of time that a humanitarian and
compassionate application has been outstanding is a relevant consideration when
considering requests for deferral. In the present case, the applicants'
humanitarian and compassionate application has now been outstanding for an
additional 12 months. A decision on stale facts will be of little use to
the parties if further removal arrangements are made.
[37]
Even if the application is allowed, remitted to a new officer for determination
and updated information about the applicants' circumstances is obtained, the
parties will be in the same position as if the Court had dismissed the
application, either on the merits or on the basis of mootness, and new removal
arrangements were made.
[38] Thus,
any decision on the merits of this application will not resolve any controversy
between the parties. The application is therefore moot and, further, no
useful purpose would be served by determining the application on its merits.
[Emphasis
added]
[14]
Dawson J. then went on to deal with
the respondent’s argument that the proper characterization of the controversy
between the parties was whether the appellants ought to be removed before their
H&C application was dealt with. In Dawson J.’s view, that characterization
was in error. She explained her opinion as follows at paragraphs 44 and 45:
[44] The
officer is charged with the duty of effecting removal as soon as is “reasonably
practicable.” Equally, subsection 48(2) of the Act requires the subject of an
enforceable removal order to leave Canada immediately. In the
face of a looming removal date, the officer is presented with a series of facts
that are said to warrant deferral at that point in time. The officer then
decides whether the facts are such to render removal impracticable, and thus
relieve the applicant of his or her obligation to leave immediately. For
example, the officer may be asked to defer removal because a humanitarian and
compassionate application has been outstanding for 18 months at the time of
removal. The officer is not asked to consider, and does not consider, whether
removal would be deferred if the application had instead been outstanding for
30 months.
[45] For
that reason, I find that the proper characterization of the dispute is whether
an applicant should be removed, and is obliged to leave, on the scheduled
removal date.
[Emphasis
added]
[15]
Dawson J. also declined to exercise
her discretion to decide the judicial review application. Although she was of
the view that an adversarial relationship still existed between the parties,
deciding the case on the merits would have, in her view, no practical effect or
useful purpose with regard to the parties’ rights.
[16]
I should
point out that Madam Justice Dawson’s decision is only one of a number of
recently-determined cases by the Federal Court where it has been held that a judicial
review application of an enforcement officer’s decision refusing to defer a
person’s removal from Canada is moot (see: Higgins v. M.P.S.E.P., 2007
FC 377; Solmaz v. M.P.S.E.P., 2007 FC 607; Maruthalingam v.
M.P.S.E.P., 2007 FC 823; Vu v. Minister of Citizenship and Immigration,
2007 FC 1109; Madani v. M.P.S.E.P., 2007 FC 1168; Adams v. M.P.S.E.P.,
21 November 2007 (Court file IMM-4121-07) (F.C.); Kovacs v. M.P.S.E.P.,
2007 FC 1247; Baron v. M.P.S.E.P., 2008 FC 341; Islami v. M.P.S.E.P.,
2008 FC 364; Leung v. M.P.S.E.P., 17 April 2008 (Court file IMM-3712-07)
(F.C.); Palka v. M.P.S.E.P., 2008 FC 342; Lewis v. M.P.S.E.P.,
2008 FC 719; and Gumbura v. M.P.S.E.P., 2008 FC 833).
THE PARTIES’ SUBMISSIONS
[17]
The
appellants submit that the Judge mischaracterized the nature of the dispute
between the parties as being “whether an applicant should be removed, and is
obliged to leave, on the scheduled removal date.” Rather, the appellants
contend that they had requested that their removal from Canada be deferred “pending a
determination of their H&C application.” Therefore, the dispute between the
parties was not simply whether the appellants’ removal should proceed or not on
the scheduled removal date, but whether it should be deferred pending
determination of the H&C application. The appellants submit that this controversy
remained live at the time of the judicial review application hearing, and
remains alive today, since the decision on the appellants’ H&C application
remains pending.
[18]
In the
alternative, the appellants submit that the Judge erred in declining to exercise
her discretion, even if the judicial review application was moot. The
appellants contend that the Judge erred in finding that there would be no
practical effect on the rights of the parties if she decided the case.
[19]
With
respect to the decision challenged by the judicial review application, the
appellants submit that this Court should find that the enforcement officer
erred in refusing to defer their removal pending the determination of their
outstanding H&C application. They submit that a very long time has passed
since they first attempted to file an H&C application and that the best
interests of their Canadian children militate in favour of a deferral.
[20]
The
respondent submits, as the appellants do, that the judicial review application
is not moot. He argues that the correct characterization of the controversy
between the parties is whether the appellants should be removed prior to the
happening of a particular event, i.e. prior to the determination of their pending
H&C application. It is then not the passing of the scheduled removal date
which renders the judicial review application moot, but the happening of the
event. The respondent disagrees with the Judge’s conclusion that a
determination on the merits of the application would be of little use to the
parties, and argues that a decision on the merits of the enforcement officer’s
decision would provide a real remedy to the parties. Furthermore, the
respondent submits that the mootness determination yields an inequitable
outcome, since all stay motions where a stay of removal is granted will
pre-judge the outcome of the leave and judicial review application, essentially
turning stay motions into judicial review applications on short notice and
often on a deficient record. The respondent contends that it could not have
been intended for the application of the tri-part test to have this effect
(see: Manitoba (A.G.) v. Metropolitan Stores
(MPS) Ltd.,
[1987] 1 S.C.R. 110; Toth v. Canada (M.E.I.) (1988), 86 N.R. 302
(F.C.A.); R.J.R. MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311).
[21]
With
respect to the merits of the application, the respondent submits that the
enforcement officer did not err in refusing to defer removal until a decision
had been made on the appellants’ pending H&C application. The respondent
argues that in light of section 48 of the Act, the Minister was bound to
execute the removal order as soon as reasonably practicable.
[22]
Finally,
the respondent says that the enforcement officer considered all of the
appellants’ circumstances, including the best interests of their children.
THE ISSUES
[23]
The questions
which we must determine in the present appeal are the following:
1.
Did the
Applications Judge err in law by dismissing the judicial review application for
mootness and by refusing to exercise her discretion to hear the case?
2.
If the
answer to the first question is in the affirmative, did the enforcement officer
make a reviewable error in refusing to defer the appellants’ removal from Canada pending the determination of
their outstanding H&C application?
ANALYSIS
A. Standard of Review
[24]
There is
no dispute between the parties that the appropriate standard of review with
respect to the mootness issue is the correctness standard. I agree (See: Housen
v. Nikolaisen, [2002] 2 S.C.R. 235).
[25]
With
respect to the enforcement officer’s decision refusing to defer the appellants’
removal from Canada, I cannot see how it can be
disputed that the applicable standard is that of reasonableness (See: Dunsmuir
v. New
Brunswick,
[2008] 1 S.C.R. 190).
B. Did the Applications Judge
Err in Law by Dismissing the Judicial Review Application for Mootness and by
Refusing to Exercise her Discretion to Hear the Case?
[26]
Both the
appellants and the respondent submit that the Judge erred in law in dismissing
the application for judicial review on the basis that it was moot. They argue
that a live controversy continues to exist between them and that it is not the
passing of the scheduled date of removal, i.e. February 15, 2007, which renders
the application moot. In their view, although put forward in slightly different
terms, it is the rendering of a decision on the appellants’ H&C application
that would render the judicial review moot.
[27]
I have
come to the conclusion that a live controversy still exists between the parties
and that, as a result, the appellants’ judicial review application is not moot.
[28]
To begin
with, it is important to make clear what the appellants were seeking when they
requested deferral of their removal from Canada on February 15, 2007. As the enforcement officer
says in her decision, the appellants’ request was put forward on the grounds
that they had an outstanding H&C application [which the appellants say they
had attempted to file in March 2003] and that it was in the best interest of
their Canadian-born children that removal be deferred until the H&C
application had been dealt with. In other words, the appellants were not simply
asking that they not be removed on February 15, 2007, but that their removal
not take place until the determination of their H&C application.
[29]
I agree
entirely with the parties that the determination of the mootness issue depends
on the proper characterization of the controversy that exists between them. In
this regard, the parties implicitly concede that if the characterization of the
dispute as found by the Judge, i.e. “whether an applicant should be removed,
and is obliged to leave, on the scheduled removal date” (paragraph 45 of her
Reasons), is correct, then the judicial review application is moot. However,
they submit that the proper characterization is whether the appellants should
be removed prior to the determination of their H&C application. At
paragraph 33 of his Memorandum of Fact and Law, the respondent formulates his
submission as follows:
33. The
correct characterization of the controversy, however, is whether an applicant
should be removed prior to the happening of a particular event, such as
prior to the determination of a pending H & C application. It is then not
the passing of the removal date which renders the judicial review application
moot, but the happening of the event. This characterization of whether removal
is reasonably practicable prior to the happening of the event is entirely
consistent with the enforcement officer’s mandate under section 48 of the IRPA
to execute a removal order as soon as reasonably practicable. It is this
characterization of the controversy that the Applications Judge should have
adopted, and erred in failing to do so.
[30]
Since the
appellants’ H&C application had not been dealt with at the time of the
hearing before the learned Applications Judge [and I am not aware of any
determination having been made since Dawson J. rendered her decision], the
parties take the position that the controversy still exists between them and
thus that the matter is not moot.
[31]
In my
view, the parties have properly characterized the nature of the controversy
which exists between them. I find support for this view in the Reasons given by
Strayer D.J. in Amsterdam v. M.C.I., 2008 FC 244, where he dismissed an application
for judicial review of the decision of an enforcement officer who had refused
to defer the applicant’s removal from Canada. Although Strayer J. was of the
view that on the facts before him, the judicial review application was moot, he
nonetheless exercised his discretion to decide the application on its merits.
[32]
In Amsterdam, supra, the applicant was scheduled
to be removed from Canada on June 6, 2007. On May 31 of that year, he
sought a deferral of his removal so as to allow him to attend a Family Court
conference scheduled for July 31, 2007, and to see a medical specialist with
whom he had an appointment on September 27, 2007. Notwithstanding this
information, the enforcement officer advised the applicant on June 4, 2007,
that it would not be appropriate to defer his removal from Canada.
[33]
On June 5,
2007, the applicant filed an application for leave and for judicial review and
he applied for a stay of removal, which was successful. Leave to commence a judicial
review application was subsequently granted and the application on its merits
was heard by Strayer J. on February 12, 2008.
[34]
As I
indicated earlier, Strayer J. believed that the application was moot. At
paragraph 11 of his Reasons, he said the following:
[11]
I am satisfied that the judicial review of the Enforcement Officer’s refusal
to defer removal is moot due to a stay having been issued by this Court to
permit the Applicant’s presence in Canada for two events which have long since
passed, the very events for which delay was refused in the decision under
review. The evidence put before the Court was that it was necessary that
the Applicant remain in Toronto to be present at a
Family Court Case Conference in the Ontario Superior Court set for July 31,
2007 and for an appointment with a specialist which, by the date of the stay
hearing, had been fixed for September 27, 2007.
[Emphasis
added]
[35]
As I also
indicated earlier, Strayer J. then went on, notwithstanding his view on the
mootness issue, to deal with the merits of the application. After concluding
that the enforcement officer’s decision was not unreasonable, he dealt with a
request by the applicant that he certify a question very similar to the one certified
in this appeal. The question read as follows:
Where an
applicant has filed an application for leave and judicial review of a decision
not to defer the implementation of a Removal Order outstanding against him or
her, does the fact that the applicants’ removal is subsequently halted by
operation of a stay Order issued by this Court render the underlying judicial
review application moot?
[36]
Strayer J.
was of the view that the above question ought not to be certified. In so
concluding, he gave the following explanation at paragraph 15 of his Reasons:
[15]
Nevertheless, I am not prepared to certify such a question. In the first place
if I did, and an appeal were taken, an answer to this question would not be
determinative of this case because I have determined that the judicial review
should also be dismissed on its merits apart from being moot. Secondly, with
respect I do not think it is a serious question requiring an answer. There
seems to be a wide measure of consensus in this Court, indicated in the cases
cited above, that such a question should be answered in the affirmative. I find
it hard to see how it could be otherwise: if the complaint in the judicial
review is that the Enforcement Officer did not defer removal until the
occurrence of some event which the Applicant considered justified the deferral,
and as a result of a stay granted by this Court that event has in the meantime
occurred. In such circumstances there can be no practical effect of a
judicial review decision.
[Emphasis
added]
[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. It is clear, however, that Strayer J.
did not conclude that the application before him was moot simply because the
removal date had come and gone, which is the position adopted by the
Applications Judge.
[38]
Thus, in
my view, since the event which the appellants invoke in seeking a deferral has
not occurred, I cannot see how it can be said that there is no existing
controversy between the parties and that no practical effect can result from a
decision on the judicial review. While the specific timing of the removal
arrangements which had been made prior to the issuance of the stay by O’Keefe
J. is no longer valid, this does not, in my respectful view, render the issues
raised in the judicial review application moot. The concrete or real
controversy between the parties, i.e. the execution of the removal order prior
to the determination of the appellants’ H&C application, remains alive.
[39]
I will briefly
examine what effect a decision on the merits of the appellants’ judicial review
application might have. Prior to such a determination, the appellants could not
be removed by reason of the stay granted by O’Keefe J. However, different
consequences will follow, depending on the determination of the application.
[40]
Should this
Court decide the judicial review in favour of the appellants, the matter would
then be remitted to an enforcement officer for redetermination in the light of
the Court’s Reasons. On redetermination, the enforcement officer might grant
the request for deferral until the H&C application has been dealt with. As
a result of such a determination, the appellants would not be removed until a
negative decision, if that be the case, had been rendered on their H&C
application. On the other hand, the enforcement officer might again refuse to
defer removal and the appellants might challenge that decision by way of a new
judicial review application.
[41]
Should the
Court dismiss the judicial review application on its merits, the stay order
would no longer be in effect and a new removal date would most likely be
scheduled. While it is true that the appellants could once again ask the
enforcement officer for a deferral, new facts, in my view, would have to be put
forward, failing which the likely scenario is that the enforcement officer
would dismiss the request for deferral. It is also possible that absent new
facts, the appellants would not seek a deferral and would leave Canada.
[42]
I might
add that should the appellants, in the absence of additional material facts,
seek a deferral which results in a refusal by the enforcement officer, and
should the appellants, in those circumstances, seek to obtain leave to commence
a judicial review application and to obtain a stay of removal, it would
certainly be open to the Federal Court to take the view that the appellants’
proceedings constitute an abuse of process and deal with those proceedings
accordingly.
[43]
I am
therefore of the view that should this Court dispose of the judicial review
application on its merits, it cannot be said that the parties would be in the
same position as if the Court had dismissed the application for mootness. I
would also add that mootness does not necessarily follow because a decision on
the merits will not entirely settle the debate between the parties.
[44]
A final
comment on this issue. In Borowski v. Canada (A.G.), [1989] 1 S.C.R.
342, at paragraphs 29 to 42, the Supreme Court identified three factors that a
court should consider in deciding whether or not to exercise its discretion to
hear the merits of an action or an application for judicial review which it
finds to be moot: (1) the existence of an adversarial relationship between the
parties; (2) the concern for judicial economy; and (3) the need for the court
not to intrude into the legislative sphere.
[45]
In the
present matter, it is undisputed that there remains an adversarial relationship
between the parties with respect to the execution of a removal order prior to
the determination of an H&C application. With respect to judicial economy,
a decision from this Court on whether or not a pending H&C application and
the interests of Canadian-born children in that specific context warrant a deferral
of removal will certainly provide guidance to parties in future cases as well
as to the parties in this appeal. Furthermore, these cases are of a recurring
nature, in that the dismissal of a judicial review application for mootness
means that the case will be returned to the enforcement officer to set a new
date for removal, which will likely trigger a new request for deferral of
removal and potentially a new application for a stay of removal. Lastly, a
decision on the merits of the application will clearly not intrude into the
legislative scheme.
[46]
Bearing in
mind the factors identified by the Supreme Court in Borowski, supra, had
I been of the view that the application was moot, I would have had no
hesitation in deciding that this Court ought to deal with the merits of the
application.
[47]
I now turn
to the second issue.
C. Did the Enforcement Officer
Err in Refusing to Defer the Appellants’ Removal from Canada Pending a Determination of
Their Outstanding H&C Application?
[48]
In dealing
with the enforcement officer’s discretion to defer removal pursuant to section
48 of the Act, it is important to keep in mind the wording of that provision,
which is as follows:
|
48. (1) A
removal order is enforceable if it has come into force and is not stayed.
(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 soon as is reasonably practicable.
[Emphasis
added]
|
48. (1) La
mesure de renvoi est exécutoire depuis sa prise d’effet dès lors qu’elle ne
fait pas l’objet d’un sursis.
(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.
[Non
souligné dans l’original]
|
Thus, where a removal order is enforceable, any person
subject thereto must leave the country and the enforcement officer is bound to
enforce the order “as soon as is reasonably practicable”.
[49]
It is
trite law that an enforcement officer’s discretion to defer removal is limited.
I expressed that opinion in Simoes v. Canada (M.C.I.), [2000] F.C.J. No.
936 (T.D.) (QL), 7 Imm.L.R. (3d) 141, at paragraph 12:
[12] In
my opinion, the discretion that a removal officer may exercise is very limited,
and in any case, is restricted to when a removal order will be executed. In
deciding when it is "reasonably practicable" for a removal order to
be executed, 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. For instance, in this case, the removal of the Applicant scheduled for
May 10, 2000 was deferred due to medical reasons, and was rescheduled for May
31, 2000. Furthermore, in my view, it was within the removal officer’s
discretion to defer removal until the Applicant’s eight-year old child
terminated her school year.
[50]
I further
opined that the mere existence of an H&C application did not constitute a
bar to the execution of a valid removal order. With respect to the presence of
Canadian-born children, I took the view that an enforcement officer was not
required to undertake a substantive review of the children’s best interests
before executing a removal order.
[51]
Subsequent
to my decision in Simoes, supra, my colleague Pelletier J.A., then a
member of the Federal Court Trial Division, had occasion in Wang v. Canada
(M.C.I.), [2001] 3 F.C. 682 (F.C.), in the context of a motion to stay the
execution of a removal order, to address the issue of an enforcement officer’s
discretion to defer a removal. After a careful and thorough review of the
relevant statutory provisions and jurisprudence pertaining thereto, Mr. Justice
Pelletier circumscribed the boundaries of an enforcement officer’s discretion
to defer. In Reasons which I find myself unable to improve, he made the
following points:
-
There are
a range of factors that can validly influence the timing of removal on even the
narrowest reading of section 48, such as those factors related to making
effective travel arrangements and other factors affected by those arrangements,
such as children’s school years and pending births or deaths.
-
The
Minister is bound by law to execute a valid removal order and, consequently,
any deferral policy should reflect this imperative of the Act. In considering the duty to
comply with section 48, the availability of an alternate remedy, such as a
right to return, should be given great consideration because it is a remedy
other than failing to comply with a positive statutory obligation. In instances
where applicants are successful in their H&C applications, they can be made
whole by readmission.
-
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. With respect to H&C applications, absent special
considerations, such applications will not justify deferral unless based upon a
threat to personal safety.
-
Cases
where the only harm suffered by the applicant will be family hardship can be
remedied by readmitting the person to the country following the successful
conclusion of the pending application.
I agree entirely with Mr. Justice Pelletier’s statement of
the law.
[52]
With these
principles in mind, I now turn to the enforcement officer’s decision.
[53]
It is
clear from the enforcement officer’s decision that she considered all of the
relevant facts which were before her. First, she addressed the fact that the
appellants had a pending H&C application. She correctly noted that the
filing of such an application, at a late stage in the removal process, was not per
se an impediment to removal. She remarked that the appellants had been
informed in 2004 that no H&C application had been filed by them, contrary
to what they apparently believed, and that they waited until 2006 to make their
application. As a result, she was of the view that deferral on that ground was
not warranted.
[54]
The
enforcement officer then turned her attention to the best interests of the
children. She was of the view that if the children left Canada with their parents, “any kind
of emotional disturbance the children may suffer due to their removal from Canada will likely be one of a
temporary nature”. She also noted that the children were young and that they
could easily adapt to a new environment. She also noted that no evidence had
been adduced that the children could not enrol in an English medium school where
they could learn English as a first or second language. Lastly, she indicated
that since both parents would be present in the children’s lives in Argentina
and that the appellants’ parents also lived in Argentina, the children would have adequate
emotional support and an existing support base in their new country.
[55]
The
enforcement officer concluded her decision by making it clear that had there
been a true impediment to removal or if a decision on the H&C application
had been imminent, she would have granted a deferral.
[56]
In making
their submission that the enforcement officer made reviewable errors, the
appellants make the following points.
[57]
With
respect to the best interests of the children, they state that the officer
ought to have deferred their removal pending the determination of their H&C
application so as to fulfill Canada’s obligations under the Convention
on the Rights of the Child. In my view, this argument is without merit. The
enforcement officer considered the children’s best interests and concluded that
no serious practical impediment existed to prevent removal of their parents to Argentina. The fact that the appellants
intend to take their children with them to Argentina and that the children might not be able
to return until their parents regularize their status in Canada or until they become adults
is not, in my view, an impediment to the removal of the parents. The
jurisprudence of this Court has made it clear that illegal immigrants cannot avoid
the execution of a valid removal order simply because they are the parents of Canadian-born
children (see: Legault v. M.C.I, 2002 FCA 125, para. 12; see also with
respect to international law: Baker, supra; Langner v. M.E.I.,
[1995] F.C.J. No. 469 (C.A.) (QL)). I might add that the officer went further
than required in her consideration of the children’s best interests. As I
stated in Simoes, supra, an enforcement officer has no obligation to
substantially review the children’s best interest before executing a removal
order. I believe that Pelletier J.A.’s Reasons in Wang, supra, support
this view.
[58]
With
respect to their pending H&C application, the appellants submit that the
enforcement officer erred in failing to have regard to the special
circumstances surrounding their application. They say that the issue was not
whether they had submitted an application in 2003 or 2004, but rather that they
had attempted, through their former attorney, to submit such an application in
March 2003, adding that for reasons unknown to them, the application had never
been received in Vegreville. They also say that it is only in 2006 that they
became aware of the fact that their March 2003 application had never been
received. The appellants further point out that a new delay occurred when a
second application in September 2006 was returned to them by reason of
insufficient funds, which application they resubmitted in early December 2006.
It is for these reasons, the appellants submit, that their attorneys requested
that their H&C application be expedited because of almost a four year delay
due to no fault on their part.
[59]
Thus, in
the appellants’ submission, the enforcement officer asked herself the wrong
question when she focussed her attention on whether the “original” H&C
application had been submitted in 2003 or 2004, and on the fact that their
second application had been filed late in the day.
[60]
In my
view, these arguments cannot succeed. First, I have not been persuaded that the
enforcement officer made a reviewable error in her review and consideration of
the evidence. What the appellants are asking us, in effect, is to reassess the
evidence so as to reach a different conclusion. In my view, that is not open to
us. Second, in the light of the principles enunciated in both Simoes, supra
and Wang, supra, I fail to see on what ground this Court could interfere
with the enforcement officer’s decision.
[61]
I
therefore conclude that the enforcement officer’s decision to refuse deferral
of the appellants’ removal from Canada
was reasonable and that the decision must stand.
[62]
This is
sufficient to dispose of the appeal. However, before concluding, I feel
compelled to make a few additional remarks.
[63]
It is important
to note that in concluding that a deferral was not warranted in the
circumstances before her, the enforcement officer emphasized the fact that the
appellants had failed to report for their pre-removal interviews of January 21,
2006. The enforcement officer also emphasized the fact that it had been necessary
to issue warrants against the appellants, which were executed in March and July
of 2006. She could also have emphasized the fact that the appellants, in order
to delay their removal scheduled for January 18, 2007, had undertaken to leave
the country with their children on February 15, 2007, which undertaking they
failed to respect. The enforcement officer could have also considered relevant
the fact that the departure orders made against the appellants at the time they
filed their refugee claims had become effective on May 30, 2002.
[64]
Events of
this type, i.e. where persons fail to comply with the requirements of the Act
or act in a way so as to prevent the enforcement thereof, should always be high
on the list of relevant factors considered by an enforcement officer. It is
worth repeating what this Court said at paragraph 19 of its Reasons in Legault,
supra. Although the issue before the Court in Legault, supra,
pertained to the exercise of discretion in the context of an H&C
application, the words of Décary J.A. are entirely apposite to the exercise of
discretion by an enforcement officer:
[19] In
short, the Immigration Act and the Canadian immigration policy are
founded on the idea that whoever comes to Canada with the intention of settling
must be of good faith and comply to the letter with the requirements both in
form and substance of the Act. Whoever enters Canada illegally
contributes to falsifying the immigration plan and policy and gives himself
priority over those who do respect the requirements of the Act. The Minister,
who is responsible for the application of the policy and the Act, is
definitely authorised to refuse the exception requested by a person who has
established the existence of humanitarian and compassionate grounds, if he
believes, for example, that the circumstances surrounding his entry and stay in
Canada discredit him or create a precedent susceptible of encouraging illegal
entry in Canada. In this sense, the Minister is at liberty to take into
consideration the fact that the humanitarian and compassionate grounds that a
person claims are the result of his own actions.
[Emphasis
added]
[65]
Thus, if
the conduct of the person seeking a deferral of his or her removal either
discredits him or creates a precedent which encourages others to act in a
similar way, it is entirely open to the enforcement officer to take those facts
into consideration in determining whether deferral ought to be granted. Neither
enforcement officers nor the courts, for that matter, should encourage or
reward persons who do not have “clean hands”.
[66]
One last
remark. In her discussion of the mischief which might arise as a result of the
view that applications such as the one before us in this appeal are moot by
reason of the passing of the scheduled removal date, Madam Justice Dawson made
a number of highly relevant remarks. One of these remarks is found at paragraph
65 of her Reasons, where she says:
[65] Further,
the potential for abuse will be mitigated significantly by the Court's
continued discipline when considering stay requests and, where a stay is
granted, by careful consideration by the CBSA, before new removal arrangements
are made, of the serious issue identified by the Court. It should be
remembered that, for a stay to be granted, the Court will have identified at
least one issue that carries with it the likelihood of success on the
underlying application. It is not enough for the Court to simply find that an
issue is not frivolous or vexatious. (See: Wang, cited above). […]
[Emphasis
added]
These comments take me back to Pelletier J.A.’s Reasons in Wang,
supra, where he dismissed the motion before him for a stay of removal because
the applicant had not satisfied him that the underlying application raised a serious
issue. This conclusion was the result of his view that on such a motion, in
determining the “serious issue” prong of the tripartite test enunciated in Manitoba
(A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 (and adopted by
this Court for the purposes of determining applications for a stay of removal
in Toth v. Canada (Minister of Employment and Immigration) (1988), 86
N.R. 302 (F.C.A.), [1988] F.C.J. No. 587), the Judge ought to “go further and
closely examine the merits of the underlying application” (paragraph 10 of his
Reasons). In other words, the Judge should take a hard look at the issue raised
in the underlying application.
[67]
While I
agree entirely with my colleague’s approach to the “serious issue” prong of the
tripartite test in the context of a motion to stay a removal order, I would add
the following. In determining whether a serious issue exists so as to warrant
the granting of a stay of removal, the Judge hearing the motion should clearly
have in mind, first of all, that the discretion to defer the removal of a
person subject to an enforceable removal order is limited, as explained in Simoes,
supra, and, particularly, in Wang, supra. Second, the Judge should also
have in mind that the
standard of review of an enforcement officer’s decision is
that of reasonableness. Thus, for an applicant to succeed on a judicial review
challenge of such a decision, he or she must be able to put forward quite a
strong case. In my view, the appellants herein clearly did not have such a case
to put forward.
[68]
Had
O’Keefe J. turned his mind to the limited nature of the enforcement officer’s
discretion and to the applicable standard of review, he would not have
concluded that the judicial review application raised a serious issue and,
hence, would not have granted a stay.
[69]
It is also
clear, in my respectful opinion, that there was no basis for him to conclude
that irreparable harm would occur if the removal order was not stayed. As this
Court and the Federal Court have constantly repeated, one of the unfortunate
consequences of a removal order is hardship and disruption of family life.
However, that clearly does not constitute irreparable harm. To paraphrase the
words of Pelletier J.A. found at paragraph 88 of his Reasons in Wang, supra,
family hardship is the unfortunate result of a removal order which can be
remedied by readmission if the H&C application is successful. Further, the
fact that the appellants’ children might have to pursue their education in
Spanish, because of their parents’ removal to Argentina, clearly does not constitute irreparable
harm.
[70]
As a
result, I would dismiss the appeal and I would answer the certified question as
follows:
Because the underlying
application for landing remains outstanding at the date the Court considers the
application for judicial review, there remains a “live controversy” between the
parties and, as a result, the matter is not rendered moot by the passing of the
scheduled removal date.
“M. Nadon”
“I concur.
Alice
Desjardins J.A.”
BLAIS J.A.
(Reasons concurring in the result)
[71]
I have
read the reasons of my colleague, Nadon J.A., and I respectfully disagree in
part.
[72]
I will rely on the facts as presented by the
Federal Court judge, Justice Dawson, and my colleague in lieu of reproducing
them here.
[73]
With
respect to my colleague’s analysis of the enforcement officer’s refusal to
defer the appellants’ removal, I agree. The determination made by the
enforcement officer was well within her narrow discretion, was well reasoned
and was within the parameters of previous statements of this Court and the
Court below.
[74]
With
respect to my colleague’s strong statement regarding the granting of a stay on
the basis that the pending judicial review of the enforcement officer’s refusal
constituted a serious issue, I firmly agree with both my colleague and with Justice
Dawson. Recently, claimants have entered into an abusive cycle of deferral
requests, judicial review applications and stay of removal applications. This
abusive cycle can be mitigated if judges considering stay applications properly
determine whether a serious issue exists by reviewing the judicial review
application for at least one issue with a probability of success. The judicial
review underlying the application for a stay of removal in this case reveals
little probability of success considering the enforcement officer’s discretion
and the ample support she cites in her reasons. The decision granting the
appellants’ stay has caused them to remain in Canada for an additional two
years, allowing for their children to become more settled and for adaptation to
be more difficult should the appellants and their children to return to Argentina.
[75]
With
respect, I must disagree with my colleague’s conclusion in regards to the
certified question of mootness.
[76]
The
parties argue, and my colleague agrees, that the characterization of the root
controversy of the judicial review involves whether the appellants should be
removed prior to the determination of their pending humanitarian and
compassionate (H&C) application.
[77]
While it
is true that the bases of the appellants’ deferral request were the best
interest of their children and the determination of their H&C application,
the decision for review in this case is whether the enforcement officer
properly refused to defer the appellants’ removal in January, 2007. It
is not whether the enforcement officer properly determined that the
removal would at no time take place before the determination of the
H&C application. This is clear from the enforcement officer’s notes to
file, where she wrote:
In conclusion,
this officer realizes that she has limited discretion to defer removal. She
would do so if there is [sic] an impediment to removal or if a decision
was imminent on the H&C application. However, this is not the case.
[78]
It is of
no consequence to determine whether the enforcement officer properly refused
the request to defer in January, 2007 since that removal date has passed. In
addition, the circumstances will have changed such that the enforcement
officer’s conclusions may no longer be pertinent to the facts as they now
stand. In my view, Justice Dawson was correct in characterizing the dispute as
whether the appellants should have been required to leave on the scheduled
removal date. Further, since the granting of a stay has allowed the
appellants to receive the deferral that the enforcement officer refused, the
review of the enforcement officer’s decision will not change the factual
consequence.
[79]
The
parties argue that the controversy is whether the appellants should be removed
prior to the determination of the H&C application. However, this was not
the question before the enforcement officer. In fact, the conclusion of the
enforcement officer regarding the lack of imminence of a determination on the
H&C application makes it clear that her decision was temporally based.
[80]
By virtue
of section 48(2) of the Immigration and Refugee Protection Act, R.S.C.
2001, c. 29 (IRPA), once 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.” I agree with my colleague
that jurisprudence is conclusive that the enforcement officer’s discretion is
limited. However, ultimately an enforcement officer is intended to do nothing
more than enforce a removal order. While enforcement officers are granted the
discretion to fix new removal dates, they are not intended to defer removal to
an indeterminate date. On the facts before us, the date of the decision on the
H&C application was unknown and unlikely to be imminent, and thus, the
enforcement officer was being asked to delay removal indeterminately. An
indeterminate deferral was simply not within the enforcement officer’s powers.
(my emphasis)
[81]
Over the
years, the duties of enforcement officers have not changed, and yet, the bases
upon which applicants rely to obtain deferrals have dramatically increased. I
am of the view that the scope of the enforcement officer’s discretion cannot be
changed by virtue of the requests made. An enforcement officer’s role is not to
assess the best interests of the children or the probability of success of any
application. An enforcement officer’s role should remain limited and deferral
should be contemplated in very limited circumstances.
[82]
The
legislation has not, to my knowledge, provided a new step to claimants who
desire yet another assessment of their circumstances. Claimants already have
the refugee application process, the pre-removal risk assessment (PRRA) process
and the H&C application in addition to judicial reviews of those processes
and the stay before removal.
[83]
In this
case, it appears that the claimants want to open yet another avenue of review
by asking the enforcement officer to reassess information that has already been
examined by administrative tribunals and that was the subject of judicial
review. For the enforcement officer to comply with this request for
reassessment would be akin to the enforcement officer making a quasi-judicial
order without the benefit of hearing from opposing counsel. It’s time to stop this
abusive cycle.
[84]
To further
illustrate why the question before Justice Dawson was moot, consider the
following hypothetical situation: if Justice O’Keefe had not granted the stay,
and the appellants had been removed to Argentina, the judicial review before Justice
Dawson would still have proceeded. Seeing as the appellants had already been
removed on the scheduled removal date, Justice Dawson would likely still
determine that the issue was moot, for the decision regarding the specified
date had passed. But, if instead of making a finding of mootness, Justice
Dawson found that the enforcement officer had made an error in not deferring
the removal date, what would be the result? Would the appellants be permitted
to return to Canada just for a second removal
date to be set to have them removed? Would they request yet another deferral
from a second enforcement officer? The possibility risks nonsense.
[85]
The more
likely consequence is that the appellants would wait in Argentina for a determination of their
H&C application and, if the application is successful, would be readmitted.
[86]
Under
subsection 11(1) of the IRPA, a foreign national wishing to establish permanent
resident status must apply for a visa before entering Canada. The IRPA makes it clear that
H&C applications are intended to be used only as exceptions to this
requirement. H&C applications are meant to allow for an application to be
processed from within Canada where the Minister considers
that humanitarian and compassionate grounds make this exemption justified:
|
25. (1) The Minister
shall, upon request of a foreign national in Canada who is inadmissible or
who does not meet the requirements of this Act, and may, on the Minister’s
own initiative or on request of a foreign national outside Canada, examine
the circumstances concerning the foreign national and may grant the foreign
national permanent resident status or an exemption from any applicable
criteria or obligation of this Act if the Minister is of the opinion that it
is justified by humanitarian and compassionate considerations relating to
them, taking into account the best interests of a child directly affected, or
by public policy considerations.
(2) The Minister may
not grant permanent resident status to a foreign national referred to in
subsection 9(1) if the foreign national does not meet the province’s
selection criteria applicable to that foreign national.
|
25. (1) Le ministre
doit, sur demande d’un étranger se trouvant au Canada qui est interdit de
territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre
initiative ou sur demande d’un étranger se trouvant hors du Canada, étudier
le cas de cet étranger et peut lui octroyer le statut de résident permanent
ou lever tout ou partie des critères et obligations applicables, s’il estime
que des circonstances d’ordre humanitaire relatives à l’étranger — compte
tenu de l’intérêt supérieur de l’enfant directement touché — ou l’intérêt
public le justifient.
(2) Le statut ne peut
toutefois être octroyé à l’étranger visé au paragraphe 9(1) qui ne répond pas
aux critères de sélection de la province en cause qui lui sont applicables.
|
[87]
H&C
applications are not intended to obstruct a valid removal order. Where a PRRA
has revealed that the applicants are not at risk if they are returned, then the
applicants are intended to make future requests for permanent residence from
their home country.
[88]
In the
appellants’ case, the H&C application is still pending. It is my view that
this still does not prevent their removal. Removing the appellants will not
cause irreparable harm to them or their Canadian-born children. Should a new
removal date be scheduled, the appellants are likely to ask the enforcement
officer for a deferral. I believe my colleague’s indication that new facts
would need to be put forward to support such a request is optimistic. These
appellants have continued to raise the same arguments throughout their dealings
with immigration officials in Canada and the likelihood that they
will continue to raise these arguments, or versions thereof consistent with the
passing of time, is high.
[89]
Therefore,
I would dismiss this appeal with costs and answer the certified question as
follows:
The removal date having
passed, the determination of the reasonableness of the enforcement officer’s
refusal to defer the removal date in January 2007 is without consequence and
therefore the matter is rendered moot.
“Pierre Blais”
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