Docket: IMM-1896-17
Citation:
2017 FC 990
Ottawa, Ontario, November 2, 2017
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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JORGE ALBERTO
VELASCO QUINTEROS
MARIA RUTHDEY
ARGUETA DE VELASCO
TATIANA ARLETTE
VELASCO ARGUETA
GEORGINA MICHELLE
VELASCO ARGUETA
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Applicants
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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
I.
Introduction
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA], of a decision made by an immigration officer (the
“Officer”) refusing the Applicants’ request to defer their removal from Canada
pursuant to subsection 48(2) of the IRPA until their humanitarian and
compassionate (“H&C”) application is determined.
II.
Background
[2]
The Applicants are a family from El Salvador.
Mr. Velasco Quinteros and Ms. Argueta de Velasco are married and have two
children named Tatiana and Georgina.
[3]
The Applicants have allegedly experienced death
threats and extortion in El Salvador from the Mara Salvatrucha (the “Mara”), an
international gang whose members are principally of El Salvadorian ethnicity.
[4]
In January 2016, a Mara gang member allegedly
called the Applicants and threatened to kill them if they did not pay $1,500
dollars. The Applicants made a police complaint and went into hiding at a
family member’s house.
[5]
The following month, Mara gang members allegedly
stopped the Applicants on the street outside their home. The Mara demanded a
$2,000 monthly payment and threatened the family with death. The Mara also
demanded that Georgina and Tatiana help deliver messages and drugs and made it
clear that they knew where all four members of the family worked and studied.
The Applicants made a second police complaint.
[6]
In March 2016, the Applicants arrived in Canada
and made a refugee claim based on their experiences with the Mara. Shortly
after their arrival, Georgina discovered she was pregnant.
[7]
In June 2016, the Applicants’ refugee claim was
refused by the Refugee Protection Division (“RPD”). The RPD did not have
concerns with the Applicants’ credibility, or the basis of their claim;
however, the RPD found no nexus between their experiences and the enumerated
grounds of persecution (pursuant to section 96 of the IRPA) and found that
their risk was a generalized risk, common to residents of El Salvador (pursuant
to section 97 of the IRPA). In September 2016, this Court denied leave for
judicial review of the RPD’s decision.
[8]
Subsequent to the failed refugee claim, the Applicants
allegedly learned that Mara gang members were looking for them, broke into
their home and stole personal information.
[9]
In November 2016, Georgina gave birth to a boy
named Milan.
[10]
On March 8, 2017, the Applicants submitted an
H&C application.
[11]
On March 30, 2017, the Applicants were scheduled
to be removed from Canada on April 30, 2017.
[12]
On April 7, 2017, the Applicants submitted a
request to defer their removal. On April 27, 2017, the Applicants’ deferral
request was denied by the Officer.
[13]
On April 27, 2017, the Applicants filed a motion
to stay their removal as well as an application for judicial review of the
Officer’s decision. This Court ordered a stay of removal until the application
for judicial review is fully determined.
[14]
In her written reasons for denying the deferral
request, the Officer noted her limited discretion to defer removal under
subsection 48(2) of the IRPA and that even if she chose to exercise her
discretion, the removal order would still have to be enforced as soon as
possible.
[15]
The Officer acknowledged the H&C application
and its supporting submissions; however, the Officer found that processing of
the application would not require the Applicants’ presence in Canada.
Furthermore, H&C applications do not give rise to any impediment to or
statutory stay of removal; public policy enables processing of these
applications after removal.
[16]
The Officer also acknowledged the recent birth
of Milan and that his best interests must be seriously considered. The Officer
noted that Milan is a Canadian citizen and is not subject to removal, enjoys
mobility rights and is entitled to healthcare and other social programs. As
well, there was insufficient evidence to suggest Milan would not benefit from
being reunited with his father, who was located in El Salvador.
[17]
Furthermore, the Officer found no new and
compelling evidence of risk. The Applicants’ submissions did not show that
conditions in El Salvador had deteriorated since the RPD reviewed the
Applicants’ claim. As well, there was insufficient evidence to show that the
recent break-in at their house in El Salvador was perpetrated by members of the
Mara. The Officer noted that a deferral of removal is a temporary measure
intended to alleviate exceptional circumstances and is not the appropriate
avenue to circumvent legislated measures to preserve the integrity of Canada’s
immigration system.
[18]
Finally, the Officer dismissed a report
submitted by a registered psychotherapist, which diagnosed the Applicants with
post-traumatic stress disorder (“PTSD”), generalized anxiety disorder and major
depressive disorder, related to their experiences in El Salvador. The Officer
noted that the report was completed on the same day as a 60-minute interview,
was not made on the recommendation of a healthcare provider and appeared to
have been prepared at the request of counsel to support the H&C
application. As well, there was no evidence to suggest the Applicants could not
address their mental health issues in El Salvador.
[19]
The Officer concluded that the challenges arising
from removal were not irreparable and the evidence did not establish an
exceptional case that justified deferral of removal.
III.
Issues
[20]
The issues are:
- Did the Officer fail to reasonably consider the Applicants’
mental health and their physical safety?
- Did the Officer fail to assess the best interests of the child
Milan?
IV.
Standard of review
[21]
The standard of review is reasonableness (Canada
(Minister of Public Safety and Emergency Preparedness) v Shpati, 2011 FCA
286 [Shpati] at para 27; Baron v Canada (Minister of Public Safety
and Emergency Preparedness), 2009 FCA 81 [Baron] at para 25).
V.
Analysis
A.
Did the Officer fail to reasonably consider the
Applicants’ mental health and their physical safety?
[22]
The Applicants argues that the Officer had
discretion to consider a broad range of circumstances and by failing to
consider and/or give adequate weight to the Applicants’ evidence concerning
their compelling mental health and physical safety, the Officer fettered her
discretion and rendered an unreasonable decision. The Applicants rely on the
report of the psychotherapist Nancy Riback for asserting the Officer did not
reasonably deal with the mental health issues of the Applicants.
[23]
The Respondent argues that the evidence of risk
and mental health to the Applicants was previously put before the RPD and this
Court, both of which rejected the Applicants’ claim. The Officer reasonably
found that conditions in El Salvador had not seriously deteriorated since that
claim was rejected. As well, the Officer’s reasons for dismissing the
psychotherapist’s report were reasonable.
[24]
The discretion of an enforcement officer under
section 48 of the IRPA is very limited. As this Court stated in Simoes v
Canada (Minister of Citizenship and Immigration), [2000] 187 FTR 219
[Simoes] at para 12:
[…] 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.
[25]
As well, this Court identified a number of
principles with respect to deferrals in Wang v Canada (Minister of
Citizenship and Immigration), [2001] 3 FCR 682 [Wang] at paras 44-45
and 48:
- A range of factors can validly influence
the timing of removal on even the narrowest reading of section 48 of the
IRPA, such as making effective travel arrangements, medical conditions
affecting the ability to travel, children’s school years and pending
births or deaths;
- The exercise of deferral requires
justification for failing to obey the positive legal obligation to execute
a valid removal order. 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; and
- One example of a policy that respects both
the duty to execute and the discretion to defer, is that deferral should
be reserved for those applications or processes where failure to defer
will expose the applicant to the risk of death, extreme sanction or
inhumane treatment. In those cases, the consequences cannot be remedied by
readmitting the person to Canada.
[26]
This Court’s statements in Simoes and Wang
have been cited with approval by the Federal Court of Appeal (Baron at
paras 49 and 51; Shpati at paras 43-44). Moreover, section 48 of the
IRPA has more recently been amended to replace the words “as soon as is reasonably practicable” with “as soon as possible”.
[27]
The Officer’s justification for dismissing the
psychotherapist’s report was reasonable. She gave little weight to this
evidence due to the circumstances in which it was created, as well as the lack
of evidence to suggest that the Applicants could not access mental health
services in El Salvador. She was entitled to make that finding and it is not
the Court’s role to re-weigh the evidence.
[28]
Moreover, I agree with the Respondent that Ms.
Riback is not qualified to opine on the diagnosis of PTSD and other medical
conditions properly diagnosed by psychiatrists, psychologists and medical doctors.
[29]
Further, in stating that “given the danger and hardship this family will likely face
it they are forced to return to the El Salvador” (at page 241 of the
Applicants’ Record), Ms. Riback clearly crossed the line and became an advocate,
providing an opinion she had no foundation for or expertise to give; her
opinion on this point has no probative value (Egbesola v Canada (Minister of
Citizenship and Immigration), 2016 FC 204 at paras 13-15).
[30]
However, it was unreasonable for the Officer to
conclude there was no new and compelling evidence of risk. The Applicants
submitted new evidence to support their claim of a serious and personalized
risk that would be faced upon returning to El Salvador. The Officer dismissed
this evidence because it did not “provide sufficient
evidence that the unknown perpetrators are affiliated with [the Mara]”
but did not provide further explanation and did not refer to any contradictory
evidence.
[31]
The new evidence relates to a break-in at the
Applicants’ house that occurred several months after their refugee claim had
been denied. A relative of the nephew had been living in the Applicants’ house
since they arrived in Canada. In an affidavit, that relative submitted two
photos showing the condition of the house after the break-in as well as the
following statement:
…I found the two doors had been forced to
the point in which they were no longer functional. The inside of the house was
completely turned upside down, and they had taken the television sets and
computers, later noticing that they had also taken photographs, important
documents, credit cards and personal contracts – all of those documents were
only those pertaining to my aunt and uncle and their daughters, which seemed to
me difficult to understand, given that my personal documents were complete. I
could not file the report given they told me that my uncle’s case was already
at the Attorney General’s Office, due to the report that was previously filed
as such only my uncle […] could expand upon the report.
[32]
In their written submission to the Officer, the
Applicants’ wrote:
[..]The Velasco family is certain it was
members of the Mara because their personal documents were stolen and only a few
valuable items taken. The Mara members were likely searching for the documents
to track down the Velasco family. As the Velasco family notes in their
affidavit, if the intruders had simply been common thieves they would have, in
all likelihood, stolen more items and left the personal documents alone.
I refer you to the photos in Exhibit “E” of
the damaged doors where the Mara forced themselves in to the house and the
affidavit by Angel Rivera Argueta in Exhibit “F” of the Velasco family’s
affidavit.
This information is new and was not
available for the RPD to consider. It is particularly relevant because it shows
the Velasco family does, in fact, face a personalized risk in El Salvador. Not
only did the Mara target them over the phone and in person when the family
lived in El Salvador, but they now continue to target them even after their departure.
Again, the only reason the RPD refused the family’s section 97 claim was
because of a finding of generalized risk. The new evidence that the Velasco
family now has directly weighs against this previous finding. It is evidence
that ought to be assessed by a PRRA officer authorized and qualified to make
risk assessments. Given that the Velasco family will be entitled to a PRRA as
of June 7, 2017, deferring their removal to allow time for a PRRA application
to be submitted and decided upon would be reasonable.
[33]
The new evidence shows a likelihood of
personalized risk and therefore could impugn the previous decision of the RPD.
Given that the Applicants’ have experienced repeated threats and extortion from
members of the Mara, it is reasonable to believe this break-in was related to
those previous experiences. As well, the Mara may now have many documents
containing the Applicants’ personal information.
[34]
The RPD had no credibility concerns with the
Applicants and dismissed their section 97 claim only on the basis of a
generalized risk. Not only does this new evidence support a finding of
personalized risk, but the Officer’s decision was rendered less than two months
before the Applicants’ were eligible for a PRRA application.
[35]
Apart from stating that the evidence was “insufficient”, the Officer made no reference to this
significant development. The Officer did not provide further explanation for
that finding, nor did the Officer refer to any contradictory evidence or the
fact the RPD made no adverse credibility findings with respect to the
Applicants.
[36]
Furthermore, the Officer failed to refer to this
new evidence with respect to the Best Interest of the Child (“BIOC”). As I
explain below, the Officer was only required to perform a truncated analysis of
short-term interests rather than a full BIOC analysis as required on an H&C
application as set out in Kanthasamy v Canada (Minister of
Citizenship and Immigration), 2015 SCC 61 [Kanthasamy] .
However, the Officer was not “alert and sensitive”
to the short-term BIOC considering this new evidence of risk and its impact on
the RPD’s previous decision or a forthcoming PRRA application.
B.
Did the Officer fail to assess the best
interests of the child Milan?
[37]
The Applicants argue that the Officer conducted
an inadequate BIOC analysis because she did not consider the family’s risks and
mental health issues as they directly relate to the child.
[38]
The Respondent argues that the Officer was only
required to consider the immediate, short-term interests of the child, and that
obligation is limited to circumstances where there is no practical alternative
to deferral in order to ensure the care and protection of the child.
[39]
In dealing with a deferral request, enforcement
officers cannot engage in a full-blown BIOC analysis because doing would usurp
the function of H&C officers under section 25 of the IRPA (Lewis v
Canada (Minister of Public Safety and Emergency Preparedness), 2017 FCA 130
[Lewis] at para 57). Furthermore, the Supreme Court of Canada’s holding
in Kanthasamy applies only to H&C decisions made under section 25 of
the IRPA (Lewis at para 74).
[40]
However, enforcement officers may be required to
engage in a truncated consideration of the short-term best interests of
children who might be affected by their parents’ removal (Lewis at para
58). As this Court stated in Munar v Canada (Minister of Citizenship and
Immigration), 2005 FC 1180 [Munar] at paras 38 and 40:
38. […] the consideration of the best
interests of the child is not an all-or-nothing exercise, but should be seen as
a continuum. While a full-fledged analysis is required in the context of an
H&C application, a less thorough examination may be sufficient when other
types of decisions are made. Because of section 48 of the Act and of its
overall structure, […] the obligation of [an enforcement] officer to consider
the interests of Canadian-born children must rest at the lower end of the
spectrum […].
40. […] What [an enforcement officer] should
be considering […] are the short-term best interests of the child. […]
[41]
Such short-term interests have been found to
include: the need for a child to finish a school year during the period of the
requested deferral (Munar at para 40); maintaining the well-being of
children who require specialized ongoing medical care in Canada (Danyi v
Canada (Minister of Public Safety and Emergency Preparedness), 2017 FC 112
at paras 36-40); ensuring that there will be someone to care for the child
after his or her parent(s) are removed if the child is to remain in Canada (Munar
at paras 40-42); and the need of an indigenous child to maintain some
connection with his or her culture, heritage and territory (Lewis at
85-88).
[42]
In this case, the Officer noted that Milan is
entitled to the benefits of a Canadian citizen and there was insufficient
evidence to suggest Milan would not benefit from being reunited with his father
in El Salvador, if returned with his mother. While those considerations may be
relevant, the more significant short-term interests of Milan relate to the
risks to him and his family. The Officer did not directly address those risks
in the context of Milan’s best interests, and the Officer’s consideration of
Milan’s best interests in this light was unreasonable.
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