Baron v. Canada (Minister of Public Safety and Emergency Preparedness), [2010] 2 FCR 311, 2009 FCA 81 (CanLII)
http://canlii.ca/t/22rzn
• The case deals with the application of the Wang standard for “serious issue” in stays of removal where the underlying application is a JR of a failure to defer removal
• The Court also provided some broader commentary on the scope of discretion afforded to the Removals Officer (the Minister):
• Appeal of a negative JR of a removals officer’s decision not to defer removal pending applicants’ H&C application under s. 25 IRPA
• Argentinian nationals who came to Canada as visitors in 2000 and applied for refugee status shortly after visas expired
• Remained in Canada for six years – eventually filed an H&C application in 2006
• Removal order issued and deferral granted; then another deferral requested and denied
• Federal Court dismissed the JR because it said the issue was moot
• The circumstances were as follows:
o Pending the initial application for JR of the officer’s decision to decline deferral of removal, the appellants got a stay of removal from the FC (would have had be successful in three-part test with Wang standard for serious issue; Nadon JA comments in this case that the decision to grant a stay was wrong)
o By the time the FC got around to hearing the actual JR of the officer’s decision declining to defer removal, the date for removal had passed
o The FC said that the issue was moot because the date for removal had passed
o This is an appeal of that decision
• Court holds that the issue was not moot – applicants had asked in their initial JR for a deferral of removal until after their H&C application was decided; that issue was still a live controversy as H&C still hadn’t been decided
• The case also deals with the application of the Wang standard for “serious issue” in stays of removal where the underlying application is a JR of a failure to defer removal
• On the Wang standard, the Court held
o Pursuant to section 48 of the Act, an enforcement officer’s discretion to defer removal is limited. The mere existence of an H&C application does not constitute a bar to the execution of a valid removal order. Absent special considerations, such applications will not justify deferral unless based on a threat to personal safety. It was clear from the enforcement officer’s decision that she considered all of the relevant facts, including the best interests of the children. The enforcement officer did not make a reviewable error in her review and consideration of the evidence and it was not open to the Court to reassess the evidence. Her decision was therefore reasonable and had to stand. (headnote)
• The Court also provided some broader commentary on the scope of discretion afforded to the Removals Officer (the Minister):
o [51] Subsequent to my decision in Simoes, above, my colleague Pelletier J.A., then a member of the Federal Court Trial Division, had occasion in Wang v. Canada (Minister of Citizenship and Immigration), 2001 FCT 148 (CanLII), [2001] 3 F.C. 682 (F.C.), in the context of a motion to stay the execution of a removal order, to address the issue of an enforcement officer’s discretion to defer a removal. After a careful and thorough review of the relevant statutory provisions and jurisprudence pertaining thereto, Mr. Justice Pelletier circumscribed the boundaries of an enforcement officer’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 those factors related to making effective travel arrangements and other factors affected by those arrangements, such as children’s school years and 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 the Act. In considering the duty to comply with section 48, the availability of an alternate remedy, such as a right to return, should be given great consideration because it is a remedy other than failing to comply with a positive statutory obligation. In instances where applicants are 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.
I agree entirely with Mr. Justice Pelletier’s statement of the law.
…
o [57] With respect to the best interests of the children, they state that the officer ought to have deferred their removal pending the determination of their H&C application so as to fulfill Canada’s obligations under the Convention on the Rights of the Child [November 20, 1989, [1992] Can. T.S. No. 3]. In my view, this argument is without merit. The enforcement officer considered the children’s best interests and concluded that no serious practical impediment existed to prevent removal of their parents to Argentina. The fact that the appellants intend to take their children with them to Argentina and that the children might not be able to return until their parents regularize their status in Canada or until they become adults is not, in my view, an impediment to the removal of the parents. The jurisprudence of this Court has made it clear that illegal immigrants cannot avoid the execution of a valid removal order simply because they are the parents of Canadian-born children (see: Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125 (CanLII), [2002] 4 F.C. 358, paragraph 12; see also with respect to international law: Baker v. Canada (Minister of Citizenship and Immigration), 1996 CanLII 3884 (FCA), [1997] 2 F.C. 127 (C.A.); Langner v. Canada (Minister of Citizenship and Immigration) (1995), 29 C.R.R. (2d) 184 (F.C.A.)). I might add that the officer went further than required in her consideration of the children’s best interests. As I stated in Simoes, above, an enforcement officer has no obligation to substantially review the children’s best interest before executing a removal order. I believe that Pelletier J.A.’s reasons in Wang, above, support this view.
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[67] While I agree entirely with my colleague’s approach to the “serious issue” prong of the tripartite test in the context of a motion to stay a removal order, I would add the following. In determining whether a serious issue exists so as to warrant the granting of a stay of removal, the Judge hearing the motion should clearly have in mind, first of all, that the discretion to defer the removal of a person subject to an enforceable removal order is limited, as explained in Simoes, above, and, particularly, in Wang, above. Second, the Judge should also have in mind that the standard of review of an enforcement officer’s decision is that of reasonableness. Thus, for an applicant to succeed on a judicial review challenge of such a decision, he or she must be able to put forward quite a strong case. In my view, the appellants herein clearly did not have such a case to put forward.