Docket: IMM-774-17
Citation:
2017 FC 877
Toronto, Ontario, October 3, 2017
PRESENT: The
Honourable Mr. Justice Campbell
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BETWEEN:
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KAUNAHORE
KAMUNDU
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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]
The present Application concerns the Applicant’s
request for a deferral of removal to Namibia. By a decision dated February 20,
2017, the deferral request was rejected. Counsel for the Applicant argues that
adequate reasons for the rejection were not provided by the Deferral Officer
(Officer). For the reasons that follow, I agree with this argument and find that
the decision rendered is unreasonable.
[2]
The basic facts and the content of the arguments
advanced to the Officer are as follow:
Mr.
Kaunahore Kamundu is a Namibian citizen. In October 2009, he arrived in Canada and
filed a claim for refugee protection shortly thereafter. He fears persecution
in his country of origin of Namibia because of his sexual orientation. His
refugee claim was
rejected
in March 2011. Mr. Kaunahore Kamundu and Mr. Edison Urietjeyova were married on
February 22, 2012 in Fort McMurray, Alberta. They live together in Fort
McMurray. They both work full-time to support themselves. Mr. Urietjeyova is
also a Namibian citizen. He filed a refugee claim because he faced persecution
in Namibia due to his sexual orientation; his claim was accepted. He is a
permanent resident in Canada. On December 2, 2016, Mr. Kamundu's husband
applied to sponsor him. They are awaiting a decision regarding their
sponsorship application. On February 15, 2017, Mr. Kamundu received notice from
CBSA of his removal date. He was ordered to report to CBSA on February 21, 2017
at 8:00am. On February 16, 2017, he requested a deferral of his removal. His
deferral was based on three [advanced] reasons: additional time for the
couple's sponsorship application to be processed; the ongoing threat to his
personal safety, a risk of death, extreme sanction or inhumane treatment in
Namibia; and the impact of a removal order on the sponsorship application. On
February 17, 2017, Mr. Kamundu filed an emergency motion to stay his removal.
At the time the stay motion was filed, the CBSA had not responded to the
deferral request. On February 20, 2017, Mr. Kamundu's deferral request was
denied by the CBSA. Mr. Kamundu filed an application for leave for judicial
review of the negative CBSA decision on February 20, 2017. Mr. Kamundu's
removal was stayed on February 20, 2017 pending determination of the [present]
application […].
(Counsel for the Applicant’s Submissions, Applicant’s Application
Record, pp. 56-57, paras. 1 to 10)
[3]
The following is the entire decision rendered by
the Officer:
With regards to your request to Deferral of Removal received by Fax on
the evening of Thursday February 16, 2017, this is to advise that I have
considered the information put forward in your deferral request. Based on
the information that has been presented to me, there are no compelling or
extenuating circumstances that outweigh my statutory duty to enforce the
valid removal order. As such, your deferral request has been refused.
I
acknowledge that you have recently submitted an Application for Permanent
Residence to IRCC on 02 DEC 2016. You have asked that the removal be deferred
to allow for processing of this application. As such, there is no reasonable
expectation that a decision will be made shortly.
I would
also like to summarize that a previous Application for Permanent Residence,
that was submitted to CIC on 23 MAR 2012 was refused on 22 JUL 2014. An
Appeal was submitted to Federal Court and the final decision of that Appeal was
denied on 21 MAY 2015.
As a
reminder, you will still be expected to report for removal from Canada on
Tuesday 21 February 2017 at 0800, as previously instructed. If you have any
further questions or concerns, I can be reached at the number below.
[Emphasis
added]
(Decision, Certified Tribunal Record, p. 41)
[4]
The present assessment of the reasonableness of
the Officer’s decision is guided according to the decision in Dunsmuir v New
Brunswick, 2008 SCC 9 at paragraph 47:
Reasonableness is a deferential standard animated by the principle that
underlies the development of the two previous standards of reasonableness:
certain questions that come before administrative tribunals do not lend
themselves to one specific, particular result. Instead, they may give rise to
a number of possible, reasonable conclusions. Tribunals have a margin of
appreciation within the range of acceptable and rational solutions. 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. [Emphasis added]
[5]
The decision under review has two striking
features: there is not one word of the Applicant’s evidence filed in support of
the deferral request; and, the only factual feature mentioned from the record
presented to the Officer is the rejection of a previous spousal application.
[6]
In my opinion, the decision under review is not transparent.
There is no way of determining why the Applicant’s evidence and arguments on
the merits were apparently dismissed. For example, there is no way to determine
the content of the Officer’s opinion that “there is no reasonable expectation that a decision
will be made shortly”. Most importantly, there is no way to
understand the relevance of the rejection of the previous spousal application.
In my opinion, the Officer’s concern about the previous application unfairly
introduces an extraneous consideration into the decision-making process for an
unknown purpose.
[7]
As a result, I find the decision under review is
not reasonable.
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