Date: 20041209
Docket: IMM-6514-03
Citation: 2004 FC 1720
Ottawa, Ontario, this 9th day of December, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
JAMES BHARAT
Applicant
and
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Bharat is a 29-year-old citizen of Trinidad and Tobago without status in Canada. He made two requests for deferral of his removal in 2003. Both requests resulted in stay orders from this court, the first on consent subject to conditions. This application arises out of the refusal of the enforcement officer to defer removal in response to the second request. The issue before me is whether the officer's decision was unreasonable, given the evidence before her respecting the interests of the applicant's Canadian wife and children.
[2] Mr. Bharat arrived in Canada on April 5, 2000 as a visitor. He was granted an extension of his visitor status to January 31, 2001. A second extension was refused and Mr. Bharat was arrested on an immigration warrant on May 16, 2002 following a police investigation that resulted in charges being laid against him for assault, sexual assault, and uttering death threats. The criminal charges all arose from an incident involving his then 16-year-old girlfriend, a ward of the Children's Aid Society. A child was born of that relationship in June, 2001. Mr. Bharat was released on bond on June 4, 2002.
[3] On August 29, 2002 an exclusion order was issued to Mr. Bharat. The criminal charges remained pending until June 30, 2003, at which time they were resolved by a finding of guilt on the assault count and withdrawal of the more serious charges. A conditional discharge and term of probation for 14 months was imposed.
[4] Removal proceedings were commenced following the disposition of the criminal charges. The applicant - until then subject to a restraining order - moved in with his girlfriend in July 2003. The change of living arrangements was in breach of the terms of his immigration release, which required him to live with the bondsperson (his uncle) and to notify immigration officials of any change in his address, which he also failed to do until called in and confronted with the information disclosed by his probation officer.
[5] Arrangements were made to remove Mr. Bharat on July 29, 2003. On July 23, 2003, the first request to defer removal was made on his behalf. The request was refused but a motion to this court for a stay was granted on consent and terms to September 2, 2003 to allow Mr. Bharat to be present for the birth of his second child, which took place on July 24, 2003. The couple were married a day later on July 25, 2003. The consent order was issued on July 29, 2003.
[6] Among the terms of the consent order were the conditions that Mr. Bharat would be removed on September 2, 2003 and that he would bring no further application for a stay "unless there are exceptional and new circumstances", not including "the filing of an H & C application". An application for permanent residence on humanitarian and compassionate grounds was submitted on Mr. Bharat's behalf on August 20, 2003 and remained outstanding as of the date of the hearing in this matter.
[7] A further deferral request was made to the enforcement officer on August 20, 2003 respecting the September 2, 2003 removal date. The grounds for this request were:
a) the birth of the second child on July 24th,
b) the marriage on July 25th,
c) the submission of the H & C application on August 20th,
d) a psychological report concerning the applicant's wife, and
e) applicant's counsel required time to obtain information from the Children's Aid Society ("CAS").
[8] The CAS caseworkers for the wife were on holiday until September 2003 and the applicant's counsel was hopeful that they could provide critical information to assist his request for a deferral. The record indicates that the first child was also under CAS care. It also appears that the CAS had intervened in response to an earlier incident that did not result in criminal charges and had barred the applicant from contact with the young mother and her child while she was under their care.
[9] The psychological report was prepared by Dr. Judith Pilowsky, also on August 20, 2003, based on a meeting with the applicant's wife and her then two week old infant on August 11th. Dr. Pilowsky's report outlines a sad history of severe emotional and physical abuse, including sexual exploitation, that led to CAS custody at the age of ten. Abuse by a family member apparently continued while she was under care and residing in foster homes.
[10] Dr. Pilowsky reports that the applicant's wife stated that her life changed for the better when she met Mr. Bharat, that previously she had felt continually depressed and experienced suicidal ideas. Mr. Bharat was her sole source of emotional support. Dr. Pilowsky concluded that the young woman was suffering from depression and anxiety related to her fear of being separated from the applicant and would be at a high risk of suicide. The bond with the applicant was "apparently corrective, as well as essential to her psychological functioning". Further the applicant's removal "would cause extreme emotional hardship for both of the children; it is certainly not in their best interest to be separated from their father."
[11] Dr. Pilowsky does not explain in her report how a two week old child would suffer "extreme emotional hardship" from the removal of the father. Nor is there any reference to the criminal charges that were laid against the father in relation to an incident of violence against the mother or the restraining order that had kept him from cohabitating with her - evidently, however, not preventing all contact - until the charges had been disposed of in June. There is also no explanation of whether and how the older child, just over two years old in the summer of 2003 may have bonded with the applicant under these circumstances nor was that addressed in counsel's submissions to the removals officer.
[12] There is a statement in the psychologist's report, not otherwise explained in the material before me, that the new born child had a swollen kidney and may require surgery. The officer made note of this in her file. There appears to have been no additional information provided to the officer about the child's condition.
[13] On August 21, 2003 the enforcement officer refused a further deferral of the removal order. An application for leave and for judicial review of that decision was filed immediately and a stay of execution was granted by Justice Snider on August 29th until final disposition of the application.
[14] In Boniowski v. Canada (Minister of Citizenship and Immigration) [2004] F.C.J. No.1397 I expressed the view that given the purpose of Section 48(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") in the statutory scheme - that is, to allow for some limited discretion in the timing of a person's removal from Canada - any reasons requirement was fulfilled in the officer's decision letter. However, the recording of written notes that set out the reasons for an administrative decision fosters better decision-making, and provides a basis of explanation if such decision is challenged on judicial review. In this case, the record includes the officer's written notes and an affidavit was sworn by the officer outlining the reasons for her decision. At paragraph 14 of the affidavit she states:
I reviewed all the information and concluded that a further deferral was not warranted. The Doctor's report did not address the fact that the Applicant's spouse has known that he would be deported since last year, that she was aware of the Consent to defer removal to September 2, 2003 and that the problems mentioned regarding her upbringing were there all along.
[15] In her notes to file the officer had found the following:
Having reviewed the new submissions, I find that there are no new exceptional circumstances in this case. When removal was originally deferred in July, these circumstances were known at that time, other than the newborn child having an enlarged kidney. As Mr. Bharat is under an exclusion order, and is not legally allowed to work, I have great concerns of how he is providing financial support to his wife and children. There was no mention of wife's emotional state, when subject was charged with sexual assault, assault and threaten death/bodily harm against her...Also not stated, that Children's Aid had an order in place which prohibited him from living with his wife and child, while she was under their care. CAS has one prior allegation of assault by Mr. Bharat on his wife, that police were not involved. When subject was arrested, he also had a court order to stay away from his wife.
[16] The officer also noted a number of other concerns, including her opinion that Mr. Bharat lacked credibility, that he was attempting to manipulate the immigration system, and that he was manipulating an 18-year-old, vulnerable, emotionally and psychologically disturbed girl.
Positions of the Parties and Analysis:
[17] In these proceedings, there was no issue of risk to Mr. Bharat arising from the prospect of his return to Trinidad and Tobago. He had previously waived his right to a pre-removal risk assessment. While the applicant argued in his written leave submissions that the officer failed to give sufficient weight to his pending H & C application and should have deferred the removal decision until that application had been decided, that was not stressed in oral argument. The H & C submission had been made the same day as the request for deferral. The applicant focused rather on the officer's treatment of the interests of the spouse and children, in light of the content of Dr. Pilowsky's report, which had been submitted to and considered by the officer prior to the decision declining to defer removal.
[18] Mr. Bharat submits that the officer failed to act reasonably and ignored the evidence before her. Removals officers, he contends, have a duty to consider other compelling circumstances, such as the best interests of the wife and the children in this case: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Paterson v. Canada (Minister of Citizenship and Immigration)(2000), 4 Imm. L.R. (3d) 65 (T.D.); Harry v.Canada (Minister of Citizenship and Immigration) (2000), 195 F.T.R. 221 (T.D.) ; Anthony v. Canada (Minister of Citizenship and Immigration) (2001), 217 F.T.R. 181 (T.D.); Obasohan v. Canada (Minister of Citizenship and Immigration) (2001), 13 Imm. L.R. (3d) 82 (T.D.); UN Declaration of the Rights of the Child (1959).
[19] The applicant argues that the officer failed to take into account Dr. Pilowsky's report respecting the interests of his family, and that she appeared to base her decision largely upon her disapproval of the applicant's relationship with his wife and her apparent assumption that he was taking advantage of a young and vulnerable woman to remain in the country. Moreover, he argues, the officer should have waited for the return from vacation of the Children's Aid Society workers who had been involved in the care of the applicant's wife and child. They may have been able to offer additional information about the effect of the applicant's removal upon the wife and children.
[20] The respondent submits that on all the facts of this case it was not unreasonable to decline to defer removal: Sklarzyk v. (Minister of Citizenship and Immigration) 2001 FCT 336. The best interests of the children had already been considered in the first deferral request and no new circumstances were in play. There is no obligation on a removals officer to undertake a pre-H & C inquiry: Saibu v. Canada (Minister of Citizenship and Immigration) 2002 FCT 103; John v. Canada (Minister of Citizenship and Immigration)(2003), 231 F.T.R. 248 (T.D.); Padda v. Canada (Minister of Citizenship and Immigration)(2003), 33 Imm. L.R. (3d) 134 (T.D.); Simoes v. Canada (Minister of Employment and Immigration)(2000), 187 F.T.R. 219.
[21] The respondent contends that the authorities relied upon by the applicant are distinguishable. There is no suggestion, as in Obasohan that the applicant's wife is an unfit mother. In Harry, supra the H & C application had been outstanding for over a year, not filed the same day as the request for deferral. Baker arose in the H & C context and, the respondent submits, does not conclusively apply to the decisions of removals officers: Simoes, supra; John, supra. Mr. Bharat has not resided with his children for a long time, and the second child is a new-born. There is no evidence that the wife and children could not accompany Mr. Bharat to Trinidad.
[22] In my view, an enforcement officer retains a flexible discretion and may take into account a variety of factors with regard to the timing of removal, including the effect of the removal on a spouse or child of the subject. However, the purpose of the legislation is not to provide for a substantive review by removals officers of the humanitarian circumstances that are to be considered as part of an H & C application: Simoes, supra ;John, supra.
[23] Applying a functional and pragmatic analysis, Justice Martineau arrived at the conclusion that the appropriate standard of review for decisions of removals officers should be reasonableness simpliciter : Adviento v.Canada (Minister of Employment and Immigration) [2003] F.C.J. No.1837. He noted, however, at paragraph 39;
Here, the determination made here by the removal officer is essentially factual. Pursuant to paragraph 18.1(4)(d) of the Federal Court Act, it should only be reviewed if it was made in a "perverse" or "capricious" manner or without regard for the material before the removal officer. As already mentioned, the strong words of this provision, "capricious" and "perverse", suggest that factual determinations be reviewed on a "patent unreasonabless" standard (Harb, supra, at para. 14 and Owen, supra, at para. 87).
[24] In Prasad v. Canada (Minister of Citizenship and Immigration) 2003 FCT No. 614, Justice Russell applied the patently unreasonable standard in concluding that the removals officer had made reviewable factual errors.
[25] In my view, the patently unreasonable standard should be applied to the decisions of removals officers, given the nature of the statutory scheme and, in particular, the limited and fact-driven discretion they exercise.
[26] In this case, the officer was well acquainted with the applicant's history and personal circumstances. It is apparent from her extensive notes to file and from her affidavit that she considered the submissions made to her by the applicant's counsel, including the report prepared by Dr. Pilowsky. There is no indication on the record that she ignored that material or made a perverse or capricious finding of fact. She was entitled, in my view, to make the determination that Dr. Pilowsky's report contributed little of value to the decision she had to make about whether to defer removal. It also appears from the record that the officer was aware of the history of the CAS involvement with the applicant's wife and older child. That there would be new "critical information" to be provided by the case workers upon their return from holidays was entirely speculative. The condition of the new born child may well have been an important factor but the onus was on the applicant to provide the officer with the information for her to make a reasoned decision on that basis and there is no indication on the record this was done.
[27] While I might not have arrived at the same conclusions, I am unable to find that the officer made a reviewable error in considering the submissions made to her in support of the deferral request. Accordingly, this application will be dismissed. No question of general importance was proposed and none will be certified.
ORDER
THIS COURT ORDERS that the application for judicial review is hereby dismissed. No question is certified.
" Richard G. Mosley"
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6514-03
STYLE OF CAUSE: JAMES BHARAT and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 14, 2004
REASONS FOR ORDER
AND ORDER BY : The Honourable Mr. Justice Mosley
DATED: December 9, 2004
APPEARANCES:
Robin Selignam FOR THE APPLICANT
Rhonda Marquis FOR THE RESPONDENT
SOLICITORS OF RECORD:
ROBIN SELIGMAN FOR THE APPLICANT
Barrister & Solicitor
Toronto, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontairo