2018 FC, 2018 FC 1292

Date: 20181219 Docket: IMM-2108-18 Citation: 2018 FC 1292 Vancouver, British Columbia, December 19, 2018 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:FABRIZIO SALTARELLIApplicantandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent JUDGMENT AND REASONS [1] Mr. Fabrizio Saltarelli (the “Applicant”) seeks judicial review of the decision made on May 3, 2018, by a Canada Border ServicesAgency Officer (the “Officer”), refusing his request for the deferral of his removal. The Officer found that there was no legalimpediment to removal of the Applicant nor sufficient compelling, and unusual or extraordinary circumstances to warrant deferral, inlight of

section 48 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”). [2] The Applicant is an Italian national. He acquired status in Canada as a permanent resident in 1965. A deportation order was issuedagainst him on August 24, 2010, following his conviction for fraud over the amount of $5000. [3] The Applicant is in a common-law relationship with a Canadian resident and stands in a parental relationship with her two minorchildren.

He argues that the Officer committed a reviewable error by failing to consider the best interests of those children, includingcontextual factors and evidence of their reliance upon him as a parent. [4] The Minister of Public Safety and Emergency Preparedness (the “Respondent”) raises an objection to certain material included asexhibits to the affidavit of the Applicant, filed in support of this application for judicial review, on the basis that these exhibits were notbefore the Officer.

He argues that the Officer was only required to consider the short-term interests of the children and reasonably did so. [5] Following the hearing, counsel for the Respondent submitted the decision in Forde v. Canada (Public Safety and EmergencyPreparedness), 2018 FC 1029. Counsel for both the Respondent and the Applicant filed written submissions as to the relevance of thatdecision to the within application for judicial review. [6] The decision of the Officer is reviewable upon the standard of reasonableness; see the decision in Nguyen v.

Canada (Public Safetyand Emergency Preparedness). [7] According to the decision in Dunsmuir v.

New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190, the standard ofreasonableness requires that a decision be transparent, justifiable and intelligible, falling within a range of possible, acceptable outcomesthat are defensible on the law and the facts. [8] Upon consideration of the evidence that was before the Officer, as contained in the Certified Tribunal Record, and of thesubmissions of Counsel, both written and oral, I am not satisfied that the decision under review meets the applicable standard of review. [9] I acknowledge that the Officer was not obliged to conduct a full analysis of the best interests of the children, on the basis ofhumanitarian and compassionate factors.

However, I am not satisfied that the Officer reasonably considered the short-term interests ofthe children. The decision does not mention those interests. [10] The facts in the present proceeding can be distinguished from those in Forde, supra. [11] The applicant in Forde, supra requested a deferral for a six month period to support his wife through the rest of her pregnancy andthe first months of the child’s life. In the present proceeding, the Applicant requested a deferral to coach his step-daughter in soccer.

TheApplicant’s request for deferral was not for a specific period of time, and that fact is distinguishable from the decision in Forde, supra. [12] As well, the Applicant’s situation is distinguishable from that of the applicant in Forde, supra because he does not pose a risk topublic safety and has not been charged with any additional offences since his fraud conviction in 2008. [13] In the result, this application for judicial review is allowed and the decision is set aside, for redetermination by a different officer.There is no question for certification arising.

JUDGMENT in IMM-2108-18 THIS COURT’S JUDGMENT is that this application for judicial review is allowed, the decision is set aside and the matter is remittedfor redetermination by a different officer. There is no question for certification arising. "E. Heneghan"

Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-2108-18 STYLE OF CAUSE: FABRIZIO SALTARELLI v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Edmonton, Alberta DATE OF HEARING: October 15, 2018 Judgment and reasons: HENEGHAN J. DATED: December 19, 2018 APPEARANCES : Rachael J. Anderson For The Applicant Maria Green For The Respondent SOLICITORS OF RECORD : RJA Law Edmonton, Alberta For The Applicant Attorney General of Canada Edmonton, Alberta For The Respondent