Toronto, Ontario, February 22, 2006
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
REASONS FOR ORDER AND ORDER
[1] The applicant, Mr. Chir, seeksjudicial review of the decision of Expulsion Officer
Ms. Tanya Noel, dated May 5, 2005, to deny his request to defer his removal from Canada. For the reasons set out below, I am unable to conclude that the officer erred in making her decision and the application will be dismissed.
[2] Mr.Chir is a citizen of the Philippines who arrived in Canada as a visitor with his wife and children in June 1997. His wife and children subsequently returned to the Philippines but he decided to remain here. A conditional departure order was issued on February 17, 1998. Mr.Chir claimed refugee status which was denied by the Immigration and Refugee Board in October 1998. He applied for judicial review of that decision but was denied leave. Mr. Chir was also given a negative Post-Determination Refugee Claimants in Canada Class ("PDRCC") decision in 2000. He did not seek to judicially review that decision.
[3] In 1999, Mr. Chir applied for permanent residence in Canada on humanitarian and compassionate grounds (H & C) on the basis of alleged risks to his life should he return to the Philippines. This application was rejected in April 2003. He sought leave to judicially review that decision but leave was denied in September 2003. The officer who considered the applicant's risk within the context of his H & C application determined that he would not be at risk if removed.
[4] Mr. Chir filed a second H & C application in April 2004 which remains outstanding as of this date. In his April 2004 application, the applicant set out his background, enclosed a "psycho-social" report prepared by a clinical therapist, Dr. Agard and dealt with the circumstances which would make an internal flight alternative (IFA) in the Philippines impractical. The reference to "social" in the description of the report apparently indicates that it is sensitive to cultural considerations.
[5] A negative pre-removal risk assessment ("PRRA") was served on Mr. Chir on April 13, 2005. On the same day he was served with a direction to report for removal on May 21, 2005.
Mr. Chir filed an application for leave and for judicial review of that assessment on April 28, 2005 that remains outstanding.
[6] The applicant's request for deferral of the scheduled removal pending the outcome of the second H & C application was initially denied on April 15, 2005. Following further representations from counsel including an updated psycho-social report from Dr. Agard dated April 18, 2005, a further refusal decision was issued dated May 5, 2005. Mr. Chir filed his application for judicial review of that decision on May 9, 2005, which is the application before the court in these proceedings.
[7] On May 17, 2005, Justice John O'Keefe granted the applicant's motion and issued an Order staying the execution of the removal order until either leave was granted in the two applications before the Court or if granted, the applications for judicial review were finally dealt with by the Court.
DECISION
[8] In her notes to file dated April 15, 2005, Ms. Noel cited the three factors relied upon by the applicant in requesting deferral until the outcome of his H & C application: (1) that the applicant is financially supporting his family back home, in particular his children's education; (2) that the applicant feels he is at risk despite the negative PRRA decision and is seeking judicial review of that decision; and (3) Dr. Agard's report respecting the applicant's fragile mental health including suicidal ideations.
[9] The officer's conclusions with regard to the applicant's representations can be summarized as follows:
· the applicant could not legally remain in Canadato work to financially support his family abroad;
· the applicant had been found not to be at risk if returned to his country in the PRRA assessment;
· an application for judicial review of the PRRA determination did not have the effect of staying his removal;
· Dr. Agard's medical report from July 2003 was not recent enough to determine the applicant's current mental state;
· the applicant was asked at his interview on April 13, 2005 if he had any health concerns or health problems and he stated he did not;
· a deferral had been granted the applicant until the outcome of his first H & C application which had been pending at the time the PRRA was initiated;
· the second H & C would not be determined in the near future
[10] Officer Noel forwarded Dr. Agard's April 18, 2005 report to a Citizenship and Immigration Canada overseas medical services officer for review. In her file notes dated May 5, 2005, the officer states that the response received was that anxiety and depression were normal and understandable for the given situation. The immigration medical completed in 1998 for his application for landing indicated that the applicant had no medical problems at that time. There was nothing in the information provided by Mr. Chir's representative that indicated he was not fit to fly. The officer concluded that upon consideration of the circumstances and review of counsel's submissions and the medical services response that a deferral would not be appropriate. I would note in passing that Dr. Agard's April 18, 2005 report mentions that Mr. Chir had not continued therapy beyond August 2003.
ISSUE
[11] Did the Officer err by refusing to defer the applicant's removal from Canada?
APPLICABLE LEGISLATION
[12] The applicable statutory provision is section 48 of the Immigration and Refugee Protection Act, S.C. 2001 c. 27:
| 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 has been made must leave Canada immediately and it must be enforced as soon as is reasonably practicable. |
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. |
ARGUMENT & ANALYSIS
Standard of Review
[13] The applicant did not address this question in his written submissions. In oral argument, counsel submitted that the choice of standard would be dispositive of the application as the Court would be unlikely to conclude that the decision of the officer in the circumstances described above was patently unreasonable. Thus, the applicant urged, the choice should be that of the reasonableness standard relying upon the decisions of Justice Luc Martineau in Adviento v. Canada (Minister of Citizenship and Immigration)(2003), 242 F.T.R. 295, 2003 FC 1430, and Justice Eleanor Dawson in Alexander v. Canada (Solicitor General), 2005 FC 1147, [2005] F.C.J. No.1416 (QL).
[14] The respondent relies upon my decision in Zenuaj v. Canada(Minister of Citizenship and Immigration) (2005), 144 A.C.W.S. (3d) 927, 2005 FC 1715 in which I concluded, upon a pragmatic and functional analysis, that the standard should be one of patent unreasonableness. I remain of the view that is the appropriate standard given the very limited discretion exercised by the officer and that the nature of the inquiry required in considering a request for deferral is fact driven. The standard is that set out in paragraph 18.1(4) (d) of the Federal Courts Act. The officer's decision should only be reviewed if it was made in a "perverse" or "capricious" manner or without regard for the evidence. That standard equates with patent unreasonableness: Harb v. Canada(Minister of Citizenship and Immigration) (2003), 238 F.T.R. 194, 2003 FCA 39 at para. 14.
[15] However, as I will elaborate below, in this case I am satisfied that whether I apply the patently unreasonable standard or the test of simple reasonableness to the officer's decision, I am unable to conclude that she committed a reviewable error.
Did the Officer err?
[16] The applicant submits that the officer erred in several ways. First, that the officer fettered her discretion by relying on the advice of the medical services officer who indicated that there was no reason that the applicant could not fly based on the medical and psychological assessments. The issue was not whether the applicant was "fit to fly" but whether he was in a safe psychological condition to return to his country of origin in light of his fears of what would happen to him there.
[17] Secondly, the applicant submits, the officer ignored the relevant and critical evidence set out in Dr. Agard's updated report. The issue of Mr. Chir's psychological health had not been addressed in his first H & C application or in either his PDRCC or PRRA assessments. It was now part of the second H & C that remained outstanding. The officer should have given greater weight to that factor in her consideration of the deferral request. The applicant also submits that the officer erred in considering the earlier deferral and in doing so, further fettered her discretion.
[18] The respondent submits that the law is clear that removals officers are not to perform "mini" H & C reviews in performing their statutory duty pursuant to section 48(2) of IRPA. That duty is to enforce removal orders as soon as is reasonably practicable: Simoes v. Canada(Minister of Citizenship and Immigration) (2000), 187 F.T.R. 219, 7 Imm. L.R. (3d) 141 (F.C.T.D).
[19] In Wang v. Canada (Minister of Citizenship and Immigration) [2001] 3 F.C. 682, 2001 FCT 148 (T.D.), Justice Pelletier (as he was then), in surveying the authorities regarding discretion to defer removal in the context of a pending H & C application described the officer's duty in the following terms at paragraph 45:
The order whose deferral is in issue is a mandatory order which the Minister is bound by law to execute. The exercise of deferral requires justification for failing to obey a positive obligation imposed by statute. That justification must be found in the statute or in some other legal obligation imposed on the Minister which is of sufficient importance to relieve the Minister from compliance with section 48 of the Act. In considering the duty imposed and duty to comply with section 48, the availability of an alternate remedy, such as a right of return, should weigh heavily in the balance against deferral since it points to a means by which the applicant can be made whole without the necessity of non-compliance with a statutory obligation. For that reason, I would be inclined to the view that, absent special considerations, an H & C application which is not based upon a threat to personal safety would not justify deferral because there is a remedy other than failing to comply with a positive statutory obligation.
[20] As I noted in Zenunaj, above at paragraph 31 an enforcement officer retains a flexible but limited discretion and may take into account a variety of factors that may preclude or delay the exercise of their duty to remove persons as soon as "reasonably practicable," such as factors affecting the personal safety or health of the person to be removed; Prasad v. Canada (Minister of Citizenship and Immigration) (2003), 28 Imm. L.R. (3d) 87, 2003 FCT 614 (F.C.T.D); Pavalaki v. Canada(Minister of Citizenship and Immigration) (1998), 78 A.C.W.S. (3d) 566, [1998] F.C.J. No. 338 (F.C.T.D.) (QL); Boniowski v. Canada(Minister of Citizenship and Immigration) (2004), 44 Imm. L.R. (3d) 31,2004 FC 1161.
[21] In this case, had the officer ignored the updated psycho-social report submitted by the applicant, I would have been inclined to find that she had erred in failing to consider a factor affecting the health of the person to be removed. But that is not what the officer did. She referred the report to a medical expert for advice. This is not a fettering of her discretion but rather a prudent and appropriate action to take in the circumstances.
[22] The applicant's immigration history provided context to the officer's decision. Reference to the fact that he had previously been granted an extended deferral did not fetter the officer's discretion as she proceeded to consider the grounds on which she had been asked to defer removal. The officer considered the pending H & C. The inference that the second H & C was not "timely" was, in my view, open to her on the record, as it was to take into consideration the probability that a determination would not be soon forthcoming and that the application could continue whether the applicant remained in Canada or not.
[23] For these reasons, I am unable to conclude that the decision was unreasonable. Accordingly, this application will be dismissed.
[24] The applicant has requested that I consider certifying as a matter of general importance, this question: What is the standard of review of an expulsion officer's decision not to defer removal?
[25] As I have determined that the officer's decision would withstand scrutiny on either a patently unreasonable or unreasonableness standard, this question would not be dispositive of an appeal in this matter. Accordingly, I decline to certify the question.
ORDER
THIS COURT ORDERS that the application is dismissed. No question is certified.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2835-05
STYLE OF CAUSE: REMESH KURA LAL CHIR
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 21, 2006
APPEARANCES:
|
Osborne Barnwell |
|
|
Sharon Stewart-Guthrie |
|
SOLICITORS OF RECORD:
| Osborne Barnwell, Toronto, Ontario |
|
| John H. Simms, Q.C. Deputy Attorney General of Canada
|