Docket: IMM-578-17
Citation:
2017 FC 802
Toronto, Ontario, September 6, 2017
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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HASSAN MOHAMED
EL SAYED
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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
I.
Overview
[1]
This is an application for judicial review of a
decision of a Canada Border Services Agency [CBSA] Enforcement Officer [the
Officer], dated February 7, 2017, refusing the Applicant’s request for deferral
of his removal to Egypt.
[2]
As explained in greater detail below, this
application is allowed, because I have found that the Officer either
misapprehended, or failed to engage with, the evidence and arguments surrounding
the mental health of the Applicant’s wife and the resulting effect of the
Applicant’s removal upon his wife and son.
II.
Background
[3]
The Applicant, Mr. Hassan Mohamed El Sayed, is a
citizen of Egypt who arrived in Canada in August 2010 and made a refugee claim
which was refused in December 2011. He then filed an application for a
pre-removal risk assessment and an application for an exemption to permit him
to apply for permanent residence from within Canada on humanitarian and
compassionate grounds. Both applications were refused in 2013, and Mr. El Sayed
was scheduled for removal from Canada. However, he failed to appear for
removal, and a warrant was issued for his arrest in July 2013.
[4]
Mr. El Sayed met his current partner, Ms. Alexis
Lopez, in 2013, their son was born on February 15, 2015, and the couple were
married on April 17, 2016. Mr. El Sayed filed a spousal sponsorship application
on January 20, 2017. On January 28, 2017, CBSA located and arrested him, as a
result of which he was issued a Direction to Report for removal on February 9,
2017. He sought deferral of this removal, based largely on evidence of Ms.
Lopez’s psychiatric condition and the best interests of his son, which request
was refused by the Officer on February 7, 2017. Mr. El Sayed then filed the present
application for judicial review of the Officer’s decision and sought a stay of
removal, which was granted by Justice Gleeson.
III.
Issues
[5]
As issues supporting the Applicant’s request for
judicial review, he submits that the Officer’s decision represents a fettering
of discretion and that the Officer used the wrong test in considering the best
interests of the child. The Respondent articulates the issues as follows:
A.
What is the applicable standard of review?
B.
Has the Applicant established a reviewable
error?
[6]
The Respondent also raises a preliminary issue,
whether the Court should exercise its discretion not to decide the merits of
the application for judicial review, because the Applicant’s immigration
history demonstrates that he is not coming to the Court with clean hands.
[7]
The arguments raised by the Applicant can be
analyzed under the second issue expressed by the Respondent. My decision will
therefore employ as an analytical structure the Respondent’s articulation of
the issues, including the preliminary issue of clean hands.
IV.
Analysis
A.
Should the Court exercise its discretion not to
decide the merits of the application?
[8]
The Respondent notes that Mr. El Sayed has
received several negative immigration decisions and argues that he ignored
Canadian immigration law and, without compelling reason, actively evaded
removal for over three years. The Respondent submits that Mr. El Sayed
therefore comes to the Court without clean hands and that the Court should
exercise its discretion to dismiss this application for judicial review without
consideration of the merits (see Canada (Minister of Citizenship and
Immigration) v Thanabalasingham, 2006 FCA 14 [Thanabalasingham]).
[9]
In Thanabalasingham, at paras 9-10, the
Federal Court of Appeal explained the principles applicable to this discretion
on the part of the Court as follows:
[9] In my view, the jurisprudence
cited by the Minister does not support the proposition advanced in paragraph 23
of counsel's memorandum of fact and law that, "where it appears that an
applicant has not come to the Court with clean hands, the Court must initially
determine whether in fact the party has unclean hands, and if that is proven,
the Court must refuse to hear or grant the application on its merits."
Rather, the case law suggests that, if satisfied that an applicant has lied, or
is otherwise guilty of misconduct, a reviewing court may dismiss the
application without proceeding to determine the merits or, even though having
found reviewable error, decline to grant relief.
[10] In exercising its discretion, the
Court should attempt to strike a balance between, on the one hand, maintaining
the integrity of and preventing the abuse of judicial and administrative
processes, and, on the other, the public interest in ensuring the lawful
conduct of government and the protection of fundamental human rights. The
factors to be taken into account in this exercise include: the seriousness of
the applicant's misconduct and the extent to which it undermines the proceeding
in question, the need to deter others from similar conduct, the nature of the
alleged administrative unlawfulness and the apparent strength of the case, the
importance of the individual rights affected and the likely impact upon the
applicant if the administrative action impugned is allowed to stand.
[10]
I note that this argument was raised before the
Court on the stay motion. Consistent with the balancing exercise described in Thanabalasingham,
Justice Gleeson’s decision noted the Respondent’s argument that Mr. El
Sayed was before the Court with unclean hands but also noted that the deferral
request was based, in part, on the negative impacts of removal upon his spouse
and two-year-old child. Justice Gleeson did not expressly reach a conclusion on
the clean hands argument but proceeded to find that the balance of convenience,
which required assessment in consideration of the request for a stay, favoured
the Applicant.
[11]
Similarly, I consider the necessary balancing to
be between the seriousness of Mr. El Sayed’s misconduct and the alleged impact
upon his spouse and son. Consistent with the analysis in Makias v Canada
(Minister of Public Safety and Emergency Preparedness), 2008 FC 1218, one
of the authorities relied upon by the Respondent, Mr. El Sayed’s misconduct cannot be imputed to
his family. While I consider his decision to flout Canada’s immigration
laws since 2013 to represent serious misconduct, I find this is outweighed by
the seriousness of the impact upon his family that it is alleged would result
from his removal. I therefore exercise my discretion to proceed to consider the
merits of this application.
B.
What is the applicable standard of review?
[12]
Mr. El Sayed submits that the issues he raises,
involving arguments of fettering of discretion and that the Officer applied the
wrong test in considering the best interests of the child, involve questions of
law which should be examined on the standard of correctness. The Respondent
takes the position that the standard of review applicable to the Officer’s
consideration of Mr. El Sayed’s deferral request is reasonableness, such that
the Court should intervene only if the Officer’s decision fails to evidence
justification, transparency and intelligibility and falls outside the range of
possible, acceptable outcomes.
[13]
I agree with the Respondent’s position on this
issue. The standard of review applicable to a CBSA enforcement officer’s
consideration of a request for deferral of removal is reasonableness (see e.g. Newman
v Canada (Minister of Public Safety and Emergency Preparedness), 2016 FC 888
[Newman], at paras 12-13).
C.
Has the Applicant established a reviewable
error?
[14]
My decision to allow this application turns on
the conclusion that the Officer either misapprehended, or failed to engage
with, the evidence surrounding the mental health of Mr. El Sayed’s wife and submissions
as to the resulting effect of his removal upon his wife and son.
[15]
The Officer referred to having considered a
letter from the psychiatrist treating Mr. El Sayed’s wife, Ms. Lopez, and a
letter from the child protection worker who was involved with the family. The
Officer noted that Ms. Lopez had been diagnosed with major depressive disorder,
anxiety and emotional dysregulation and that she had suicidal ideations.
However, the Officer also noted that, while Ms. Lopez had a history of mental
instability, her condition was currently controlled, her psychiatrist was still
actively involved in her medical care and, in the case of relapse of her
condition, Ms. Lopez could turn to her physician for help. The Officer
therefore concluded that the evidence submitted did not warrant a deferral of Mr.
El Sayed’s removal.
[16]
However, Mr. El Sayed points out that the
evidence does not support the Officer’s statement that his wife’s condition is
currently controlled. There were two letters submitted from Ms. Lopez’s
psychiatrist, which explained that she had been treating Ms. Lopez since 2015
when her child was born. Her diagnosis includes a chronically elevated risk of
self-harm, and she has had several relapses of depression and required
hospitalizations for suicide attempts. The psychiatrist’s most recent letter,
prepared in February 2017 at the time of the deferral request, states that Ms.
Lopez’s depression has relapsed again under the pressure of Ms. El Sayed
potentially been deported from Canada. She states that she is increasingly
concerned about
Ms. Lopez’s safety if her husband is not in Canada to support her and their
child and that, to stay stable, she requires ongoing support, particularly from
her husband, as well as ongoing psychiatric treatment.
[17]
While the Officer accurately notes that Ms. Lopez’s
psychiatrist is still actively involved in her medical care, it is not clear on
what basis the Officer stated that her condition is currently controlled. I
note that the April 14, 2016 letter from the child protection worker with the
Children’s Aid Society referred to Ms. Lopez following up with her treatment
plan, taking prescribed medication, and having been stable since a year ago.
However, that letter predated by 10 months the psychiatrist’s February 2017
statement that Ms. Lopez’s condition had relapsed and that there were concerns
for her safety. I also note that the psychiatrist’s evidence refers not to past
suicidal ideation but rather to past suicide attempts.
[18]
I am therefore unable to find the Officer’s
treatment of the evidence surrounding Ms. Lopez’s psychiatric condition to
demonstrate the intelligibility necessary to conclude that it falls within the
range of reasonable outcomes.
[19]
In considering the interests of the couple’s
two-year-old son, the Officer noted that Mr. El Sayed is involved with raising
his child. However, the Officer observed that the child will remain with his
mother in Canada, which may attenuate a period of adjustment for the child,
that he is eligible for all the social, educational and medical benefits
available to Canadians, and that he is very young and would therefore more
easily and naturally adjust to his new circumstances. The Officer considered
the submission that the child could end up in the custody of the Children’s Aid
Society if Mr. El Sayed was removed but concluded that this concern was
speculative in nature.
[20]
My concern with this aspect of the Officer’s
decision flows from my findings with respect to the Officer’s treatment of the
evidence surrounding Ms. Lopez’s psychiatric condition. The submissions
supporting the deferral request argued that Mr. El Sayed’s removal would
increase the risk of Ms. Lopez attempting to commit suicide again and that, due
to this risk and Ms. Lopez’s overall psychiatric condition, the child would be
left without adequate care. Perhaps because of the findings surrounding Ms.
Lopez’s psychiatric condition, the Officer does not appear to have engaged with
this argument, concluding simply that the child will adjust to the absence of
his father because of the availability of care from his mother. Again, I find
that the decision does not demonstrate an engagement with the evidence and
arguments sufficient to conclude that it falls within the range of reasonable
outcomes.
[21]
In responding to this application, the
Respondent placed considerable emphasis upon the law governing the limited
discretion afforded to a CBSA enforcement officer when presented with a request
for deferral of removal. The Respondent relied on the recent decision by this
Court in Newman at paras 35-36, in which Justice Gascon explained the
limits upon an enforcement officer’s discretion as follows:
[35] When considered in the context of
requests for deferral and through the prism of section 48 of IRPA, as they
properly should, those “special considerations” therefore cannot simply
encompass any or all factors contained or provided in support of an H&C
application, or even less so the H&C application itself. It is well
accepted that enforcement officers are not positioned to evaluate all the
evidence that might be relevant in an H&C application (Ramada at para 7) or its merits, and
that a pending H&C application does not in itself constitute one of the special
considerations which could allow the enforcement officer to defer a removal (Shpati
at para 45; Ponce Moreno v Canada (Public Safety and Emergency
Preparedness), 2010 FC 494 at para 19). An enforcement officer has neither
the general duty, nor the discretion to consider various H&C factors in
determining whether to defer removal (Mkhonta v Canada (Minister of Public
Safety and Emergency Preparedness), 2015 FC 991 at para 26).
[36] Against the backdrop of an
enforcement officer’s decision on a request for deferral and the limited
discretion bestowed to the officer, I thus conclude that the special
considerations arising in an H&C context are limited to those elements
evoking some form of harm linked to the removal from Canada. In other words, a
condition or a situation alleged in an H&C application would not be
sufficient to constitute one of the “special considerations” mentioned in Baron
if it does not translate into some form of detrimental harm caused by the
impending removal.
[22]
In particular, the Respondent emphasized Justice
Gascon’s reference to the requirement that the special circumstances to be
taken into account by an enforcement officer be those which relate to some form
of detrimental harm caused by the impending removal from Canada. The Respondent
correctly notes that the psychiatric evidence demonstrates that Ms. Lopez’s
mental disability significantly predates the impending removal, that the
disability is permanent, and that her elevated risk of self-harm is chronic. The
Respondent argues that the Officer is not in a position to address a long-term
mental health concern of this nature, that the harm argued by the Applicant is
not sufficiently linked to the removal, and that the Officer therefore did not
have the authority to defer the removal based on Ms. Lopez’s mental health
condition.
[23]
With respect, I cannot accept this argument.
While the mental health condition certainly predates the impending removal, the
Applicant’s submission based on the psychiatrist’s evidence is that Mr. El
Sayed’s removal could trigger a significant exacerbation of that condition,
including the risk of another suicide attempt. In my view, this is precisely
the sort of linkage, or detrimental harm resulting from an impending removal,
to which Justice Gascon was referring in Newman.
[24]
I acknowledge the Respondent’s point that a
deferral of removal is intended to be short-term relief, changing only the
timing of removal and not whether removal will eventually take place. However,
I understand the Applicant’s argument to be that the Officer has the discretion
to defer immediate removal, and thereby prevent the immediate harm that he
submits would be the consequence of that removal. This preserves the
possibility that his removal and the harm argued to result therefrom will be
avoided permanently should the sponsorship application succeed. I consider this
argument to be sound and responsive to the Respondent’s position that the
Officer did not have the discretion to defer removal in the circumstances
presented in this case.
V.
Conclusion
[25]
It is therefore my decision to allow this
application for judicial review, such that the Applicant’s request for deferral
of his removal will be returned to another enforcement officer for
consideration. The parties raised no question for certification for appeal, and
none is stated.
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