Date: 20020813
Docket: IMM-2955-01
Neutral Citation: 2002 FCT 853
Montreal, Quebec, August 13, 2002
Present: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
ANTHONY WILLIAMS
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by Expulsions officer Margaret Danby (hereinafter referred to as "expulsions officer") dated June 14, 2001, refusing the applicant's request for deferral of the execution of the removal order.
FACTS
[2] The applicant is a citizen of Jamaica. He has been living in Canada illegally since he overstayed his visitor's visa in 1981.
[3] A departure order was issued to and was signed by the applicant on September 30, 1993. He was told to leave Canada within 30 days.
[4] The applicant ignored this departure order and remained illegally in Canada.
[5] A call-in notice dated June 8, 1999 was sent to three (3) separate addresses where the applicant was known to have lived.
[6] The call-in notice specified that arrangements for his departure from Canada must be made and that an interview was scheduled one (1) month later, on July 8, 1999.
[7] The applicant did not comply with the call-in notice and never arrived at the interview. Therefore, a warrant for his arrest was issued on August 14, 2000.
[8] The applicant was detained by the police on May 15, 2001.
[9] At an immigration detention review held on May 25, 2001, the applicant told an adjudicator that he was willing to purchase his own ticket and that he would affect his deportation by leaving Canada within two (2) weeks. He promised to present a ticket to immigration authorities within five (5) days of release.
[10] Again, the applicant did not keep his promise and continued to remain in Canada illegally.
[11] By letter dated June 14, 2001, the expulsions officer refused to defer the execution of the applicant's removal order to a later time.
[12] Additionally, on June 14, 2001, the applicant filed his humanitarian and compassionate grounds (H & C) application and sent it via registered mail.
RELEVANT LEGISLATION
[13] Section 48 of the Immigration Act (hereinafter referred to as the "Act") addresses the execution of orders:
| 48. Subject to sections 49 and 50, a removal order shall be executed as soon as reasonably practicable. |
48. Sous réserve des articles 49 et 50, la mesure de renvoi est exécutée dès que les circonstances le permettent. |
ISSUES
[14] 1. Did the expulsions officer err when she decided not to defer the execution of the applicant's removal order?
2. Was the expulsions officer's discretion fettered by the memorandum dated September 23, 1999 from the Director of Enforcement Mr. Reinhard Mantzel?
ANALYSIS
1. Did the expulsions officer err when she decided not to defer the execution of the applicant's removal order?
[15] No, the expulsions officer did not err when she decided not to defer the execution of the applicant's removal order.
Limited discretion of the expulsions officer
[16] It is now trite law that the scheduling of a date for removal is a reviewable matter by this Court. However, such a review can take place only on very limited grounds, given that the discretion which is exercised by the expulsions officer is so confined.
[17] In the leading case of Simoes v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 936 (F.C.T.D.), Nadon J. was faced with an applicant who, like the applicant in the present matter, was a citizen of Jamaica. In Simoes, the applicant brought a motion for an order staying her deportation, pending the determination of her H & C application, or pending the consideration of her application to commence judicial review. In regards to the issue of deferral of the removal order pending the determination of the H & C application, Nadon J. held:
[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. [See Note 7 below] For instance, in this case, the removal of the Applicant scheduled for May 10, 2000 was deferred due to medical reasons, and was rescheduled for May 31, 2000. Furthermore, in my view, it was within the removal officer's discretion to defer removal until the Applicant's eight-year old child terminated her school year.
[para 13] With respect to pending H & C applications, certainly, the mere existence of such an application cannot bar the execution of a valid removal order. [See Note 9 below] "To hold otherwise," as Noël J. aptly observed, "would, in effect, allow claimants to automatically and unilaterally stay the execution of validly issued removal orders at their will and leisure by the filing of the appropriate application. This result is obviously not one which Parliament intended."
[18] In Wang v. Canada (Minister of Citizenship and Immigration) (T.D.), [2001] F.C.J. No. 295 (F.C.T.D.), Pelletier J. held:
[para 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 [page705] 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.
[19] This notion has recently been reconfirmed again by Pelletier J. in Rettegi v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 194 (F.C.T.D.), where he held:
[para 12] I do not intend to repeat here the analysis which I undertook in Wang v. Canada, [2001] F.C.J. No. 295, 2001 FCT 148, where I held, among other things, that a pending H & C application is not grounds for a stay except perhaps in the circumstances outlined by my colleague Nadon J. in Simoes v. Canada (2000), 7 Imm. L.R. (3d) 141 (F.C.T.D.) who spoke of an outstanding H & C application made in a timely fashion.
[20] In addition, the Ministerial Guidelines entitled Chapter IP 5 Immigrant Applications in Canada Made on Humanitarian or Compassionate (H & C) Grounds specifically states at section 3.2:
Persons under a removal order who submit an H & C application and pay the appropriate fee are entitled to a decision on that application. However, there is no requirement to delay removal in such cases. Therefore, clients seeking a decision prior to removal must submit their application well before removal is scheduled. Where the H & C assessment will not be completed prior to removal, counsel applicants that · their H & C application will be considered after removal · when a decision is made, they will be informed in writing, and · if their application is approved and they are otherwise admissible to Canada, they will be allowed to return to Canada for processing (see Section 9.10 - Positive H & C decision following removal).
(my emphasis)
[21] Therefore there is no question that the expulsions officer has a limited discretion to defer removal. Section 48 of the Act makes it crystal clear that the expulsions officer is statutorily bound to execute a removal order "as soon as reasonably practicable." In addition to this, an H & C application does not provide sufficient reason to defer the removal.
[22] I find that in the particular circumstances, the expulsions officer acted reasonably when she decided not to defer the applicant's removal order considering the applicant's H & C application was only filed on June 14, 2001.
2. Was the expulsions officer's discretion fettered by the instructions provided in a memorandum dated September 23, 1999 from the Director of Enforcement Mr. Reinhard Mantzel?
[23] No, the expulsions officer's discretion was not fettered by the instructions provided in the memorandum from the Director of Enforcement Mr. Reinhard Mantzel.
[24] The applicant finds that the memorandum in question in some way fettered the discretion of the expulsions officer. With this, I cannot agree. The contents of the memorandum are in complete accordance with what the case law indicates about the nature of the discretion to defer removal.
[25] The relevant portions of the memorandum from Mr. Reinhard Mantzel, Director, Enforcement Ontario Region, to Regional Managers, Ontario Region, Operations Managers, GTEC and Hearings Managers, Niagara Falls, Windsor and Ottawa CICs read as follows:
It has come to my attention that there is some confusion about a time-based factor in deferring removal of applicants for humanitarian and compassionate (H.C.) consideration - i.e. removal is automatically deferred because the H.C. application is pending for six months or more. I would like to stress that no such six-month rule exists.
Officers should keep in mind that the Department has an obligation under section 48 of the Immigration Act to carry out effective removal orders as soon as reasonably practicable. Occasionally situations may arise where due to the unusual or exceptional circumstances, deferral pending the outcome of the H.C. application may be appropriate. In view of the large volume of H.C. applications referred to local CICs in Ontario Region, it takes about one year to assess and decide these cases. Therefore, to automatically delay removals pending the HC decision will inevitably undermine and frustrate the efficiency of the immigration enforcement program, especially since removal officers operate under several other administrative constraints, i.e., difficulties in obtaining travel documents; limited duration of such documents; airline responsibility issues, detention costs, additional removal costs if new travel bookings are required etc.
[...]
Barring any exceptional circumstances where deferral may be justified pending the H.C. application, removal should proceed in the normal manner. All pending H.C. applications will be assessed even if the person is removed. If a personal interview is deemed necessary, such interview may be conducted at a visa office.
[26] The Director of Enforcement's memorandum is clearly in accordance with what the case law indicates about the nature of the discretion and also quotes the wording found in section 48 of the Act.
[27] Therefore this application for judicial review is dismissed.
[28] Counsel for the applicant suggested a question for certification:
What is the scope and/or nature of the discretion of a removal officer in considering a request by a person under a valid removal order for deferral of removal in relation to an outstanding humanitarian and compassionate application?
[29] In my view, I am not satisfied that this is a serious question of general importance, therefore, no question will be certified.
"Pierre Blais"
Judge
TRIAL DIVISION
Date: 20020813
Docket: IMM-2955-01
BETWEEN:
ANTHONY WILLIAMS
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2955-01
STYLE OF CAUSE:
ANTHONY WILLIAMS
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 31, 2002
REASONS FOR ORDER AND ORDER :
THE HONOURABLE MR. JUSTICE BLAIS
DATED: August 13, 2002
APPEARANCES:
Mr. Lorne Waldman FOR THE APPLICANT
Ms. Ann Margaret Oberst FOR THE RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associates FOR THE APPLICANT
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario