Docket: IMM-1868-24
Citation: 2025 FC 578
Toronto, Ontario, March 31, 2025
PRESENT: The Honourable Justice Battista
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BETWEEN: |
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KURTIS OMERO DOUGLAS |
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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 |
JUDGMENT AND REASONS
I. Overview
[1] The Applicant was scheduled for removal from Canada on February 14, 2024. He requested a deferral of his removal until his stepchild, Anastasia, could complete her school year and until a decision was made on a humanitarian and compassionate (H&C) application that he believed to be outstanding. His request for a deferral of his removal was refused, and this is the application for judicial review of that decision.
[2] For the reasons that follow, the decision to refuse deferral of the Applicant’s removal is reasonable, and the application is dismissed.
II. Background
[3] The Applicant was born in Jamaica and was taken to the United States of America by his mother when he was under 10 years of age. Except for two months in 2012, he has not resided in Jamaica since his childhood. Raised in poverty and instability in the Bronx, New York, he entered the criminal justice system after being convicted of robbery in 2007 when he was 22 years old. He was eventually removed to Jamaica, but after two months he entered Canada in 2012 using false documentation.
[4] When the Applicant’s identity was discovered by immigration authorities in 2013, he was found inadmissible for serious criminality under the Immigration and Refugee Protection Act, SC 2001, c 27, and removal proceedings began. In January 2017, he received a conditional discharge for fraud related charges in Canada, which he attributed to a gambling addiction. He began treatment from the Centre for Addiction and Mental Health in February 2016.
[5] The Applicant’s removal from Canada was delayed at first due to a lack of Jamaican travel documents. He then received a stay of his removal and succeeded in a judicial review application in this Court in 2017. Most recently, in January 2024, an airline issue prevented his removal, leading to a new removal date of February 14, 2024, and a new request to defer his removal. When that request was denied, this Court stayed his deportation pending this application for judicial review of the decision denying the deferral.
[6] The Applicant married a Canadian citizen in 2015, and the couple co-parented two Canadian children. In 2015, his wife filed an application to sponsor him from within Canada but no clear request for an H&C exemption from his inadmissibility was made in connection with that application. The application was refused on August 3, 2018.
[7] The Applicant’s previous counsel prepared an application for permanent residence on H&C grounds for him in 2017, and the fate of that application is in dispute. The deferral officer (Officer) found no evidence of the “new kit” for the application in the system shared with Immigration, Refugees and Citizenship Canada (IRCC), and did not give further consideration to the request to defer his removal because of that allegedly pending application.
[8] The Applicant maintains that the H&C application was held in abeyance until the disposition of his sponsorship application and is now being processed. He presented new evidence in this application for judicial review in the form of an email dated February 1, 2024, from IRCC indicating that an H&C “submission” was received and was in process. By contrast, the Respondent maintains that the 2017 H&C application was never put into processing.
[9] The Applicant requested that his removal be deferred to two future events. First, he submitted that it was in the best interest of his minor stepchild, Anastasia, that his removal be deferred to the end of her school year. Second, he requested deferral of his removal until a decision was made on his outstanding H&C application based on the hardship that would result to his family if he were removed before that time.
III. Issues
[10] As a preliminary issue, the Respondent requested that new evidence and submissions presented by the Applicant in relation to his background, his criminal rehabilitation application, and the present status of his H&C application be struck. This issue will be resolved pursuant to the principles guiding the admission of evidence not before the author of the decision being judicially reviewed (Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 (Access Copyright) at para 19).
[11] The substantive issue is the reasonableness of the Officer’s decision to refuse deferral. The Applicant argues that the decision was unresponsive to submissions made regarding his stepchild’s school year, the hardship of his family’s relocation to Jamaica, and the status of his H&C application. This issue will be resolved based on the description of the reasonableness standard in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (Vavilov), affirmed in Mason v Canada (Citizenship and Immigration), 2023 SCC 21 (Mason).
[12] Finally, the Applicant raised an argument concerning a breach of the doctrine of legitimate expectations through IRCC’s commitment to process his H&C application. This issue relates to IRCC’s processing of a separate matter and does not concern the present deferral decision. It will therefore not be considered.
IV. Analysis
A. Inadmissible evidence
[13] As stated above, the Respondent submits that many portions of the Applicant’s affidavit contain evidence that was not before the Officer and are therefore inadmissible on judicial review. This includes the email confirming that the Applicant’s H&C submissions had been received, statements that the Applicant’s family would follow him to Jamaica, and evidence of a new application for criminal rehabilitation.
[14] Evidence that was not before a decision maker is generally inadmissible on judicial review and evidence not before the decision maker “that goes to the merits of”
a decision that has already been rendered is inadmissible (Access Copyright at para 19). One exception to this principle is affidavit evidence of “procedural defects that cannot be found in the evidentiary record”
(Access Copyright at para 20).
[15] The Applicant’s new evidence of his family following him to Jamaica was not before the Officer and relates to the merits of the Officer’s decision. The issue regarding the existence of an outstanding H&C application relates to whether the Officer breached the doctrine of legitimate expectations (i.e., that the Applicant was given a “clear impression” that the H&C had been received).
[16] Therefore, the Applicant’s new evidence of his family following him to Jamaica is inadmissible and will be struck from the record, and the evidence of the H&C application being received is not admissible because, as stated above, the issue of legitimate expectations does not relate to the decision under review and is not properly before the Court. Finally, the evidence of the Applicant’s criminal rehabilitation application is not relevant to this application for judicial review and will not be considered.
B. The Officer’s findings regarding hardship from removal are reasonable
[17] The Officer’s findings regarding the disruption to Anastasia’s school year are reasonable because the submission that she would accompany the Applicant to Jamaica was not clearly advanced as a central issue in the deferral request.
[18] The Applicant alleges that the Officer was not responsive to the submission that his stepdaughter’s school year would be disrupted because if he were removed the family would follow him to Jamaica.
[19] It is true that the Officer’s decision focused on hardship as a result of the separation of the Applicant from his family. However, the bulk of the submissions before the Officer concerned the hardship envisioned by the Applicant returning to Jamaica and the family remaining in Canada, rather than the entire family going to Jamaica. Justice William Pentney, in granting the request for a stay, found as a fact “that the wife’s evidence focused on the challenges they would face if the Applicant left Canada, and she did not address any difficulties she or the children would face if they moved to Jamaica”
(Douglas v Canada (Public Safety and Emergency Preparedness), 2024 FC 245 at para 25).
[20] The only evidence of the prospect of the entire family going to Jamaica was two brief references from counsel and two references to the family’s departure in the support letter from the Applicant’s wife.
[21] Otherwise, the majority of the hardship evidence described in the Applicant’s wife’s letter envisioned the Applicant returning to Jamaica and the rest of the family remaining in Canada. For example, the Applicant’s wife wrote:
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-I implore you to consider the implications of separating a father and husband from his family and the insurmountable challenges we would face if he were to be deported.
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-The abrupt disruption caused by the deportation of their father would undoubtedly inflict emotional distress on [the daughters].
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-All of Kurtis’ children are minor Canadian Citizens who will be disproportionately affected by Kurtis’s removal from Canada.
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-I implore you to consider Kurtis’s role not just as an individual but as an integral part of our family’s fabric. His presence is irreplaceable, and any separation would inflict immeasurable emotional and practical hardships on us all.
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-Now this day has come and we are not prepared to cancel all our plans, all our schedule and remove the girls from their school, relocated [sic] and readjust to a strange country with a completely different culture and dialect (way of speaking).
[Emphasis added]
[22] The evidence was, at the least, scant and ambivalent about the family’s travel to Jamaica together. For this reason, it was not unreasonable for the Officer to fail resolve the potential hardship resulting from the disruption of the Applicant’s stepdaughter’s school year if the family were to leave Canada together.
[23] There is no doubt that a reasonable decision is one that is responsive to the submissions made by the parties (Vavilov at paras 127-128; Mason at para 74). However, as I recently held, “the implied precondition to the requirement for responsive reasons is that the parties clearly communicate their central concerns to the decision maker. The requirement of responsiveness falls with the degree to which submissions fail to identify those central concerns and issues”
(Kapoor v Canada (Citizenship and Immigration), 2025 FC 365 at para 15).
[24] In the present case, the submissions on this issue were not clear and central, and in the context of a deferral decision the Officer was not required to sort through the submissions in an attempt to achieve clarity, or speculate on alternative scenarios involving future hardship.
C. The existence of an outstanding H&C application
[25] The Officer did not unreasonably find that there was no evidence of an outstanding H&C application.
[26] The Applicant submits that the Officer erred by relying on a 2018 internal memo in finding that the Applicant’s H&C application could not be processed after his spousal sponsorship application had been refused due to his criminal inadmissibility.
[27] However, there was no evidence before the Officer to support the Applicant’s claim that he had a pending H&C application. The Applicant cited a 2013 operational bulletin in support of his contention that the Applicant’s H&C application had resumed. The Officer cited a 2018 IRCC internal memo stating that the Applicant could pursue an H&C assessment with a “new kit and fee”. In the Officer’s view, no new kit had been received and the Applicant had “not been found to be not inadmissible”, therefore the Applicant did not have an outstanding H&C application.
[28] This finding is reasonable based on the evidence provided to the Officer. The Applicant’s argument amounts to a request that the Court favours the 2013 operational bulletin over the 2018 IRCC memo. The Applicant is asking the Court to reweigh evidence before the Officer, which is not permitted on reasonableness review (Vavilov at para 125).
[29] While I am aware of the evidence that the Applicant tendered in this application that he has an H&C application in process, as stated above this evidence is not admissible for determining the reasonableness of the Officer’s decision. The Applicant has not raised a reviewable error with the Officer’s finding that there was no outstanding H&C application.
V. Conclusion
[30] There is reason to have sympathy for the Applicant. He has demonstrated resilience and courage in managing his addiction and overcoming challenging life circumstances. The evidence reveals him to be dedicated to his family and to his responsibilities to his minor children. His proximity to removal appears to be the result of his previous struggle with addiction which led to his inadmissibility, and procedural missteps in the processing of his previous applications.
[31] Nevertheless, the question before the Court is whether the decision rendered by the Officer on the deferral request is reasonable. I find that it is reasonable, based on the evidence and submissions.
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