PAULO JORGE MOTA FURTADO Applicant v. THE MINISTER OF PUBLIC SAFETY AND, 2011 FC 963

Federal Court Cour fédérale Date: 20110729 Docket: IMM-85-11 Citation: 2011 FC 963 Ottawa, Ontario , July 29, 2011 PRESENT: The Honourable Mr.

Justice Mandamin BETWEEN: PAULO JORGE MOTA FURTADO Applicant and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent REASONS FOR JUDGMENT AND JUDGMENT Introduction [ 1 ] The Applicant, Paulo Jorge Mota Furtado, applies for judicial review of the decision of the Inland Enforcement Officer (the Officer) not to defer the execution of the Applicant’s removal from Canada scheduled for January 8, 2011. [ 2 ] The Applicant submits that the Officer failed to exercise his discretion in a reasonable and equitable manner and that the Officer made an erroneous finding of fact.

The Applicant submits the Officer did not properly consider the Applicant’s request for an extension of time to care for his gravely ill father, to provide for the best interests of his children and also to allow consideration of his application for permanent residence based on humanitarian and compassionate (H&

C) grounds. The Applicant further submits the Officer erred in concluding the Applicant was on welfare, when the evidence did not support that conclusion. [ 3 ] I am dismissing this application for judicial review as I do not see any reviewable error made by the Officer in coming to his conclusion. Background [ 4 ] The Applicant came to Canada on February 3, 1991 at the age of 12 and is a permanent resident.

Between the years 1999 to 2007, he was convicted of a number of criminal charges ranging from driving while impaired, assault, trafficking, mischief, obstructing a peace officer, and failure to comply with probation order. On November 1, 2007, a report was written finding him inadmissible on the

grounds of serious criminality. A removal order was issued on July 9, 2008. This was appealed to the Immigration Appeal Division, which granted a stay of the removal order. On January 14, 2010, the Applicant was convicted of assault causing bodily harm. After a hearing, the stay order was cancelled on October 28, 2010. [ 5 ] The Applicant made an application for permanent residence on humanitarian and compassionate grounds in October 2010.

The Applicant also submitted a Pre-Removal Risk Assessment (PRRA) application, which received a negative decision on December 1, 2010. [ 6 ] Around the same time, the Applicant requested deferral of the removal order on the humanitarian basis that the Applicant had to care for his father who was seriously ill, as well as for the best interest of his children who resided with their mother.

He also advanced his request on the basis of his outstanding H&C application and the hardship he would face in Portugal because of problems finding housing and employment. [ 7 ] The Applicant’s removal was scheduled for January 8, 2011. The Officer refused the request for deferral. Subsequently a stay of removal was granted pending judicial review of the Officer’s decision. Decision Under Review [ 8 ] The Officer refused the Applicant’s request concerning a deferral of his removal from Canada on December 30, 2010. The Officer wrote: “The Canada Border Services Agency (CBSA) has an obligation under

section 48 of the Immigration and Refugee Protection Act to enforce removal orders as soon as reasonably practicable.

Having considered your request, I do not feel that a deferral of the execution of the removal order is appropriate in the circumstances of this case.” [ 9 ] In the accompanying Notes To File, the Officer wrote that inland enforcement officers had little discretion to defer removal but if one did choose to exercise this discretion, he must do so while continuing to enforce a removal order as soon as reasonably practicable. [ 10 ] Regarding the Applicant’s father’s illness, the Officer found there was another family member in Canada , the Applicant’s sister, and there was insufficient evidence to demonstrate that she would not be able to help assist her parents in the Applicant’s absence.

The Officer recorded that during the interview the Applicant had stated that he was unemployed, receiving social assistance and was being supported by his mother. The Officer concluded that he would not be able to financially support his parents. [ 11 ] The Officer noted the Applicant’s submissions regarding the best interests of his two children. The Officer observed, however, that the Applicant’s children live with their mother, and they would continue to have her support after the Applicant’s removal.

Since the Applicant’s children would remain in Canada , the Officer concluded that they would have access to all the services available to all Canadians and they therefore would have “every opportunity to be capable individuals.” [ 12 ] The Officer found that there was insufficient evidence to demonstrate that a decision on his H&C application was imminent. The Officer noted the CBSA agrees to grant temporary deferrals of removals to applicants applying for H&C applications, but that the policy will not be granted to applicants who have been found to be inadmissible for criminality or serious criminality.

The Officer observed that an outstanding H&C application does not warrant deferral of removal, nor does it constitute a stay. The Officer also noted that according to

section 233 of the Immigration and Refugee Protection Regulations, SOR/2002-227 , there is no stay of removal where there is an outstanding H&C application that has not been approved in principle by the Minister. [ 13 ] Finally, the Officer considered the hardship that the Applicant may face if removed to Portugal . The Officer noted that he had been previously employed as a landscaper, and insufficient evidence had been provided to demonstrate he would not be able to seek similar employment in Portugal .

The Officer also found that the Applicant had been given reasonable notice of his removal from Canada and therefore had an appropriate amount of time to prepare for it. [ 14 ] The Officer was not satisfied that a deferral of removal was warranted on the above grounds.

Legislation [ 15 ] The Immigration and Refugee Protection Act , R.S. 2001, c. 27 [ IRPA ] provides: 25.

(1) The Minister must, on request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected. […] 48.

(1) A removal order is enforceable if it has come into force and is not stayed. Effect

(2) If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as is reasonably practicable. 25.

(1) Le ministre doit, sur demande d’un étranger se trouvant au Canada qui est interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, sur demande d’un étranger se trouvant hors du Canada, étudier le cas de cet étranger; il peut lui octroyer le statut de résident permanent ou lever tout ou

partie des critères et obligations applicables, s’il estime que des considérations d’ordre humanitaire relatives à l’étranger le justifient, compte tenu de l’intérêt supérieur de l’enfant directement touché. […] 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. Conséquence

(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. Immigration and Refugee Protection Regulations, S.O.R./2002-227 (the Regulations) 233. A removal order made against a foreign national, and any family member of the foreign national, is stayed if the Minister is of the opinion that the stay is justified by humanitarian and compassionate considerations, under subsection 25(1) or 25.1(1) of the Act, or by public policy considerations, under subsection 25.2(1) of the Act.

The stay is effective until a decision is made to grant, or not grant, permanent resident status. 233. Si le ministre estime, aux termes des paragraphes 25(1) ou 25.1(1) de la Loi, que des considérations d’ordre humanitaire le justifient ou, aux termes du paragraphe 25.2(1) de la Loi, que l’intérêt public le justifie, il est sursis à la mesure de renvoi visant l’étranger et les membres de sa famille jusqu’à ce qu’il soit statué sur sa demande de résidence permanente.

Issues [16] The Applicant submits that the Officer erred by failing to exercise his discretion and to do so in a reasonable and equitablemanner . [17] The issues in this application are: a. was the decision of the Officer not to exercise his discretion reasonable? b. did the Officer make a reviewable error stating the Applicant was on social assistance? Standard of Review [18] The Applicant makes no submissions on the appropriate standard of review.

The Respondent submits that the standard ofreview of an enforcement officer’s decision is reasonableness, noting in particular that an officer’s discretion to defer removal is limited. [19] I agree with the Respondent that the standard of review of an enforcement officer’s decision is reasonableness: Baron vCanada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 at para 67 [Baron].

Analysis [20] Both parties refer to case law regarding stay applications, but I must observe that the present matter concerns a judicialreview of the Officer’s decision to refuse the request for deferral of the Applicant’s removal, which is different from an application for astay of removal. [21] While the jurisprudence of stay applications may be helpful in forming some judicial review applications, they do not involvethe same legal test.

Stay applications require an application of the test formulated in Toth v Canada (Minister of Employment andImmigration), (1988), (FCA), 86 NR 302 (FCA) [Toth] whereas in a judicial review application, the Court must assessthe reasonableness of the Officer’s decision in his application of the facts to the law. [22] The Applicant acknowledges that the relevant IRPA provision, s.48(2), allows the Officer the discretion to

schedule a removalonly when the conditions set out in the provision are met – that is, once it is reasonably practicable to do so. The Applicant submits thatspecial considerations exist here, including the fact that the Applicant has lived in Canada for 20 years and is only asking to stay for afew months to take care of his father. The Applicant also states that he had submitted his H&C application in a timely manner soon afterthe stay of removal order was cancelled.

He therefore objects to the Officer’s refusal to defer his removal. [23] The Officer’s discretion to do so was described by Justice Lemieux in the case Umukoro v Canada (Minister of Citizenshipand Immigration), [1999] FCJ No 436 (TD) at para 24 [Umukoro]: The jurisprudence of this Court is clearly to the effect that a removal officer such as Carolyn Moffett has some discretion under theImmigration Act concerning removal once the removal officer has become involved in making deportation arrangements. The reason thisdiscretion exists is because removals under

section 48 of the Immigration Act are to be carried out "as soon as reasonably practicable.” (emphasis added) [24] Umukoro dealt with an application for a stay of removal, and Justice Lemieux’s words were in the context of the irreparableharm analysis of the Toth test. This case dealt with the removal provision under the former Immigration Act. However, it would appearthat the principle that the appropriateness of a removal officer’s exercise of discretion depends on the circumstances of each case remainsrelevant. [25] The case law submitted by the Applicant, all dealing with requests for a stay, point to the limited nature of the Officer’s

discretion to defer a removal order, which may include consideration of factors such as illness, other impediments to travelling, andpending H&C applications that were brought on a timely basis but yet have to be resolved due to backlogs in the system: Simoes vCanada (Minister of Citizenship and Immigration), (FC), [2000] 187 FTR 219 (TD) at para 12 [Simoes]. The Father’s Illness [26] The Applicant submitted his father was seriously ill, and receiving treatment for gastric cancer. He now submits the father’slife expectancy for his condition less than five years.

However, the evidence and submission before the Officer was that his father wasundergoing chemotherapy treatment and would be unable to work for six to 12 months. [27] The Applicant contends his parents rely on him for support. The Applicant also submits that the Officer made an error infinding that the Applicant would not be able to financially support his parents because he stated he was receiving social assistance.

TheApplicant states in his affidavit that at the interview he did not tell the Officer he received social assistance. [28] The Respondent disputes the Applicant’s evidence on this matter, but is nevertheless of the opinion that whether theApplicant was on social assistance was not an error central to the Officer’s decision in that it would not change the ultimate finding thatdeferral was not warranted.

Given that the Applicant’s record showed his employment to be sporadic and that there was no evidence thathe was employed at the time of the deferral request, the Respondent submits that it was open to the Officer to find that the Applicant wasunable to support his parents financially. [29] I agree with the Respondent. Even if the Officer had made an error in concluding that the Applicant was on social assistance,his employment was at best sporadic. The Applicant did not provide evidence to the Officer demonstrating employment.

The Officer’sNotes to File indicate the Applicant was not currently employed and being supported by his mother. The Officer’s conclusion that theApplicant was on social assistance is not a material error central to the decision. Pending H&C Applications [30] The Applicant submits he submitted a timely H&C application as soon as his stay of removal had been cancelled. [31] The Officer noted that there was no evidence that a decision on the Applicant’s H&C application was imminent.

The Officerfully canvassed the question of deferral of removal when H&C applications where pending. [32] In [Baron], the Federal Court of Appeal dealt with an application for judicial review of an officer’s refusal to defer removalfrom Canada. The Federal Court of Appeal addressed the H&C applications stating at paras 50 to 51: I further opined that the mere existence of an H&C application did not constitute a bar to the execution of a valid removal order.

Withrespect to the presence of Canadian-born children, I took the view that an enforcement officer was not required to undertake a substantivereview of the children's best interests before executing a removal order. Subsequent to my decision in Simoes, supra, my colleague Pelletier J.A., then a member of the Federal Court Trial Division, had occasionin Wang v. Canada (M.C.I.), 2001 FCT 148 , [2001] 3 F.C. 682 (F.C.), in the context of a motion to stay the execution of aremoval order, to address the issue of an enforcement officer's discretion to defer a removal.

After a careful and thorough review of therelevant statutory provisions and jurisprudence pertaining thereto, Mr. Justice Pelletier circumscribed the boundaries of an enforcementofficer's discretion to defer. In Reasons which I find myself unable to improve, he made the following points: There are a range of factors that can validly influence the timing of removal on even the narrowest reading of

section 48, such as thosefactors related to making effective travel arrangements and other factors affected by those arrangements, such as children's school yearsand pending births or deaths. The Minister is bound by law to execute a valid removal order and, consequently, any deferral policy should reflect this imperative of theAct. In considering the duty to comply with

section 48, the availability of an alternate remedy, such as a right to return, should be givengreat consideration because it is a remedy other than failing to comply with a positive statutory obligation. In instances where applicantsare successful in their H&C applications, they can be made whole by readmission.

In order to respect the policy of the Act which imposes a positive obligation on the Minister, while allowing for some discretion with respect to the timing of a removal, deferral should be reserved for those applications where failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment. With respect to H&C applications, absent special considerations, such applications will not justify deferral unless based upon a threat to personal safety.

Cases where the only harm suffered by the applicant will be family hardship can be remedied by readmitting the person to the country following the successful conclusion of the pending application. (emphasis added) [ 33 ] In my view, the decision in Baron fully addresses the Applicant’s submissions on the H&C application. The Applicant has made an H&C application and, if successful, he would be able to return.

Conclusion [ 34 ] T he Applicant disagrees with the way the Officer weighed the factors, but the Officer correctly outlined the relevant legal provisions, acknowledged the Applicant’s concerns but reasonably concluded that this was not an appropriate case to defer the Applicant’s removal. The Officer provided adequate reasons that were based on the evidence that was before him. [ 35 ] I consider the Officer’s decision not to grant a deferral of removal on these grounds to be reasonable.

I do not see any reviewable error made by the Officer in deciding not to grant the deferral of removal. [ 36 ] I would dismiss this application for judicial review. [ 37 ] The parties do not propose a question of general importance for certification. JUDGMENT THIS COURT’S JUDGMENT is that : 1. The Application for judicial review is dismissed; and 2. I do not certify a question of general importance. “Leonard S. Mandamin” Judge FEDERAL COURT

SOLICITORS OF RECORD DOCKET: IMM-85-11 STYLE OF CAUSE: PAULO JORGE MOTA FURTADO v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Ottawa , Ontario DATE OF HEARING: July 14, 2011 REASONS FOR JUDGMENT AND JUDGMENT: Mandamin J. DATED: July 29, 2011 APPEARANCES : Wennie Lee FOR THE APPLICANT Tamrat Gebeyehu FOR THE RESPONDENT SOLICITORS OF RECORD : LEE & COMPANY Barristers and Solicitors North York , Ontario FOR THE APPLICANT

MYLES J. KIRVAN Deputy Attorney General of Canada FOR THE RESPONDENT