OTTAWA, Ontario, this 14th day of December, 2005
PRESENT: THE HONOURABLE PAUL U.C. ROULEAU
BETWEEN:
and
THE SOLICITOR GENERAL OF CANADA
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for a judicial review under section 72(1) of the Immigration and Refugee Protection Act, 2001 S.C. c. 27 (the IRPA), of the decision of and Expulsion Officer (the "Officer") made February 9, 2005 in which the Officer refused to exercise her discretion to stay the removal of the applicant from Canada to Jamaica. The Officer noted that the Canada Border Services Agency (the "CBSA") has an obligation under s. 48 of the IRPA to carry out removal orders as soon as reasonably practicable. The Officer chose not to exercise her discretion to defer the applicant's removal order in the present case.
[2] The applicant, Tafari Rennock, came to Canada in 2001 on an invalid United States Green Card. Upon his arrival, he failed to give information about past criminal convictions in the United States.
[3] The applicant is a citizen of Jamaica. He married a Canadian citizen, Keisha Tavares, on October 27, 2001. His wife gave birth to a son on January 18, 2003.
[4] Since arriving in Canada, the applicant has had a negative refugee claim, a negative Pre-Removal Risk Assessment ("PRRA"), and a negative Humanitarian & Compassionate ("H & C") decision. He is subject to a valid removal order. The applicant currently has a second H & C application pending, based on a spousal sponsorship.
[5] The applicant was sent a Direction to Report dated January 24, 2005, informing him that his removal from Canada was scheduled for Friday, March 31, 2005. In a further letter dated January 28, 2005, the applicant was informed of a change in removal dates to March 4, 2005.
[6] On February 9, 2005, the Officer sent the applicant a letter refusing his request for a deferral. The letter is the subject of this application and reads as follows:
Re: Request for deferral of removal - RENNOCK, Tafari
I refer to your request dated February 8, 2005, concerning a deferral of Mr. Rennock's removal from Canada.
Canada Border Services (CBSA) has an obligation under section 48 of the Immigration and Refugee Protection Act to carry out 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.
Mr. Rennock is expected to report for removal on March 4, 2005 as was previously arranged.
[7] On February 28, 2005, Campbell J. heard the applicant's application for a stay of removal pending the present application for judicial review and stayed the removal pending the determination of the instant application.
[8] The applicant argues that the Officer erred in determining that he does not qualify for administrative deferral under the Minister's new spousal policy, A25(1) of the IRPA.
[9] The applicant also argues that the Officer failed to consider the best interests of his son in refusing to defer the removal order.
[10] While I am of the opinion that the best interests of a child directly affected should be left for consideration in the applicant's pending second H & C application, the Minister's spousal policy A25(1) deserves further consideration as it refers directly to deferral of removal. The policy reads as follows:
The Canada Border Services Agency has agreed to grant a temporary administrative deferral of removal to applicants who qualify under this pubic policy. The deferral will not be granted to applicants who:
Are inadmissible for security (A34), human or international rights violations (A35), serious criminality (A36), or organized criminality (A37)...
Applicants who apply under this public policy after they are deemed removal ready by CBSA will not benefit from the administrative deferral of removal.
[11] The respondent argues that the applicant was removal ready once a valid removal order was issued against him. The respondent notes that, for an applicant to apply for a PRRA, he or she must have a valid removal order in force against him or her. The respondent submits that the applicant had a valid removal order in force against him prior to his negative PRRA decision on December 10, 2004.
[12] The respondent argues that the applicant was removal ready prior to his H & C spousal sponsorship application on January 25, 2005.
[13] I am of the opinion that the respondent is correct in claiming that the applicant was removal ready prior to his second H & C application. The negative PRRA decision was issued on December 10, 2004, indicating that a valid removal order was in force against the applicant prior to that date. In addition, the CBSA's letter dated January 24, 2005, with a scheduled removal date, pre-dated the applicant's H & C application. I agree with the respondent that a valid removal order indicates that an applicant is deemed removal ready by the CBSA.
[14] The A25(1) policy indicates that "Applicants who apply under this public policy after they are deemed removal ready by CBSA will not benefit from the administrative deferral of removal". The applicant was deemed removal ready prior to his negative PRRA decision and therefore prior to his spousal sponsorship H & C application under the A25(1) policy.
[15] As the temporal issue disposes of the consideration of the A25(1) policy, I am of the opinion that the Officer's discretionary decision was reasonable and cannot be disturbed. The notion of the applicant's serious criminality, along with his arguments regarding rehabilitation, does not need to be considered at this time. As noted above, the best interests of the applicant's minor son should be considered as part of his second H & C application, but the present application is not an H & C decision. The Officer's determination not to defer the removal of the applicant was reasonably within her discretion.
JUDGMENT
The application for judicial review is dismissed.
"Paul U.C. Rouleau"
DEPUTY JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1027-05
STYLE OF CAUSE: TAFARI RENNOCK and SOLICITOR GENERAL OF CANADA
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 30, 2005
REASONS FOR JUDGMENT: ROULEAU D.J.
APPEARANCES:
| Mr. Suvendu Goswami
|
|
| Ms. Alison Engel-Yan
|
SOLICITORS OF RECORD:
| Suvendu Goswami Toronto, Ontario
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada
|