OTTAWA, ONTARIO, September 15, 2006
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
and
AND EMERGENCY PREPAREDNESS
REASONS FOR ORDER AND ORDER
[1] The Applicant is a 34-year-old citizen of Ghana who fled to Canada on January 19, 2003, due to a fear of serious harm from her ex-spouse. On January 24, 2003, she claimed refugee protection, but the claim was refused on May 11, 2004, by the Immigration and Refugee Board because adequate state protection was available to her in Ghana.
[2] On November 13, 2004, the Applicant married Frederick Appiah-Danso, a permanent resident of Canada.
[3] On February 18, 2005, the Minister of Citizenship and Immigration (the “Minister”) announced that out-of-status spouses of Canadian residents would be permitted to submit sponsorship applications from within Canada. This policy however did not apply to ‘removal ready’ cases, i.e. cases where the Applicant had received the application papers to make a Pre-Removal Risk Assessment (“PRRA”) application. Applicants who were subject to a removal order but not ‘removal ready’ would receive a 60-day administrative deferral while their files were processed on an expedited basis.
[4] On April 4, 2005, the Applicant was summoned to the office of Citizenship and Immigration Canada (“CIC”) and given a PRRA application. At this time the Applicant was deemed “removal ready”.
[5] The Applicant alleges that they had originally planned on submitting an outland spousal sponsorship application through the office of the Canadian High Commission in Ghana (“CHC Ghana”). However, once the Minister’s policy was announced they decided on an inland application. Unfortunately, they had failed to gather all the necessary papers when they were called to the PRRA interview on April 4, 2005. Subsequently, when they discovered that the new policy did not apply to ‘removal ready’ applicants, the Applicant filed an outland spousal sponsorship application with the CIC Mississauga on April 11, 2005.
[6] On June 24, 2005, the CIC Mississauga found the Applicant’s husband eligible to sponsor the Applicant. However, on August 11, 2005, CHC Ghana advised them that on average it would take 21 months to process a spousal application.
[7] On September 14, 2005, the Applicant received her negative PRRA decision and a direction to report for removal on October 12, 2005.
[8] On October 2, 2005, the Applicant made a request for a deferral of removal on humanitarian grounds because a long-term separation with her husband would cause excessive hardship on them. Consistent with the Minister’s new policy, which was designed to alleviate hardship in spousal sponsorship cases, counsel for the Applicant, in a letter dated October 3, 2005, suggested that a temporary deferral of removal based on humanitarian grounds should be granted for either one of the two following reasons:
1. To allow the Applicant to apply and be processed from within Canada as per the inland spousal program; or
2. To allow the Applicant to remain in Canada with her husband until such a time as she is called on by the CHC Ghana to attend a personal interview regarding her pending spousal application.
Decision
[9] The request for deferral was denied on October 7, 2005. The removal officer stated: “As neither of these requested situations qualify for an administrative deferral of removal under the IRPA I do not feel that the circumstances of this case warrant such.”
Issue
[10] The Applicant argues that the removal officer had the discretion to defer removal (pending consideration of an out of Canada spousal family class application) until the Applicant was called to attend a personal interview abroad and that the removal officer fettered his discretion to defer the Applicant’s removal by limiting himself to situations that would “qualify for an administrative deferral of removal under the Immigration and Refugee Protection Act.”
STANDARD OF REVIEW
[11] This Court established that the appropriate standard of review of a removal officer’s decision to refuse a deferral of removal is one of patent unreasonableness. (Zenunaj v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 2133.)
ANALYSIS
[12] The discretion of a removal officer is set out in section 48(2) of IRPA. It states:
(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.
[13] This discretion was considered by Justice Pelletier in Wang v. Canada (M.C.I.), [2001] F.C.J. No. 295. After considering the logical boundaries in the notion of “deferral,” Justice Pelletier described the discretion in the following manner at para 48:
It has been recognized that there is a discretion to defer removal though the boundaries of that discretion have not been defined. The grant of discretion is found in the same section which imposes the obligation to execute removal orders, a juxtaposition which is not insignificant. At its widest, the discretion to defer should logically be exercised only in circumstances where the process to which deferral is accorded could result in the removal order becoming unenforceable or ineffective. Deferral for the mere sake of delay is not in accordance with the imperatives of the Act. One instance of a policy which respects the discretion to defer while limiting its application to cases which are consistent with the policy of the Act, is that deferral should be reserved for those applications or processes where the failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment in circumstances and where deferral might result in the order becoming inoperative. The consequences of removal in those circumstances cannot be made good by re-admitting the person to the country following the successful conclusion of their pending application. Family hardship cases such as this one are unfortunate but they can be remedied by readmission.
[14] In Simoes v. M.C.I, [2000] F.C.J. No. 936 Justice Nadon held at para 12:
In my opinion, the discretion that a removal officer may exercise is very limited, and in any case, is restricted to when a removal order will be executed. In deciding when it is "reasonably practicable" for a removal order to be executed, a removal officer may consider various factors such as illness, other impediments to travelling, and pending H&C applications that were brought on a timely basis but have yet to be resolved due to backlogs in the system.
[15] The removals officer here considered the totality of the Applicant’s situation. He was well aware to the Applicant’s situation, the Minister’s new policy and the administrative deferral connected therewith.
[16] The affidavit of the Applicant makes it clear that originally she considered submitting an outland application, but decided to take advantage of the Minister’s new policy that allowed her to put forward an inland application; however, she was tardy in so doing. Once she was disqualified by becoming ‘removal ready’ she changed her mind again and filed an outland application instead, with the explicit knowledge that she would have to leave the country. Once she realized that the extent of the backlog in processing spousal applications in Accra would result in a 21-month delay, she applied for a deferral on H&C grounds.
[17] Given that an outland application by definition means voluntarily returning to Ghana, the only grounds on which she could base her H&C application on was family separation. While separation unquestionably imposes hardship, there is an abundance of jurisprudence stating that mere family separation is not a sufficient ground to justify an H&C deferment. (See Wang, supra, at para 48; Kaur v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1082, at para 18; Rettegi v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 194, at para 16.)
[18] Removal officers have limited discretion and accordingly, the reasons for decision are often sparse and not as well written as one might wish. They have to be read in their totality; rather than focusing on a single sentence and reading it too literally. In this case, after looking at the entire decision, it becomes clear that the removal officer was aware of the total situation and took all of the relevant factors into account. I take his decision to mean that under the circumstances of the Applicant’s case, she had not advanced any facts that would qualify her for H&C considerations nor had she made out a case qualifying her for an administrative deferment.
[19] Consequently, I do not find that the removal officer fettered his discretion or came to a patently unreasonable decision. Accordingly, this application cannot succeed.
ORDER
THIS COURT ORDERS that this application be dismissed.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6075-05
STYLE OF CAUSE: Ellah Adomako
v. Minister of Public Safety and Emergency Preparedness
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 13, 2006
REASONS FOR
ORDER AND ORDER: von FINCKENSTEIN J.
DATED: September 15, 2006
APPEARANCES:
|
Mr. Michael Korman |
FOR THE APPLICANT |
|
Ms. Negar Hashemi |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
OTIS & KORMAN Toronto, Ontario |
FOR THE APPLICANT |
|
JOHN H. SIMS, Q.C. Deputy Attorney General of Canada |
FOR THE RESPONDENT |