Deferring Removal

People who either face removal or who have received a removal order should contact a lawyer immediately to determine what their options are. The purpose of this post is to provide an overview of the legislative scheme for deferring removal orders. It provides a general framework, and cannot substitute the advice that a lawyer can give when he applies these facts to your situation.
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Four Case Comments

Hussain v. Canada (Citizenship and Immigration), 2013 FC 636

This was a FSWP case involving an officer who refused an applicant’s application because the officer determined that the applicant’s work experience was equivalent to “computer and information systems administrator” rather than “computer and information systems manager”.  In overturning the decision, the Court determined that the question is not which National Occupational Classification most resembles an applicant’s experience, but rather the applicant can demonstrate that he/she has one year of skilled work experience in a specific NOC.

The following three paragraphs are the relevant part of the decision:

With respect to its comments regarding the similarities between the Applicant’s experience and NOC 2281, the Respondent falls into the same trap as the Visa Officer – the question is not whether the Applicant’s duties bear more of a resemblance to another category than to the one sought, but whether the Applicant has satisfied the requirements of the category in question.

Although it is not for this Court to re-weigh the Visa Officer’s conclusions in this regard, the Applicant is correct to assert that the similarity with NOC 2281 is the sole explanation offered by the Visa Officer in support of his conclusion that the information submitted was insufficient to show that the Applicant satisfied the requirements of NOC 0213.

This Court is not an expert in the technological terms connected with the various NOC codes and cannot be required to assess the sufficiency of the Applicant’s application where the Visa Officer has provided no relevant comments or reasons in that regard.  The Applicant is correct in his assertion that the fact that duties may “bear more resemblance” to another category is irrelevant where an officer has failed to assess the relevance of the duties in relation to the particular category in question and has provided no analysis comparing the requirements of the two codes mentioned.

The Court also noted that while great deference is owed to visa officers, decisions still require justification, transparency and intelligibility so that courts can understand why the decision was made or to assess whether the conclusion is within the range of acceptable outcomes.

Ulybin v. Canada (Citizenship and Immigration), 2013 FC 629

This case involved a a determination of whether an equivalency analysis is reviewable on the standard of correctness or reasonableness.  The answer is reasonableness.  The nature of foreign law and the determination of the circumstances underlying the foreign conviction are questions of fact. Comparison of Canadian law to foreign law and the offence committed by an individual engages questions of mixed fact and law.  As well, it is possible that there may be more than one correct equivalent offence.  The Court noted:

How does the reasonableness standard apply to the analysis in issue? It is important that the Officer carrying out the equivalency analysis understand the elements of the comparable offence. A failure to address one of the elements would make the analysis unreasonable. However, the Officer’s application of the facts to the Criminal Code elements is a matter for which the Officer is owed deference by the Court. This exercise may lead to more than one reasonable outcome, particularly when taking into account the highly factual determination of equivalency.

Ndjizera v. Canada (Citizenship and Immigration), 2013 FC 601

This case extends the principle that it is unreasonable for Officers to distrust evidence simply because it comes from individuals connected to the applicants to refugee claims.

 

Begum v. Canada (Citizenship and Immigration), 2013 FC 550

This decision involved a stay of removal application in which the Court was clearly unimpressed with the position of the Canada Border Services Agency.  The decision is short, and worth a read in its entirety, but some of the key paragraphs are:

During the hearing before me, I said I was not particularly interested in the tripartite test for an interlocutory stay which is that there be a serious issue, irreparable harm if the stay were not granted and if the balance of convenience favoured the applicant. I was more interested in the administration of justice.

I wanted to know if the Enforcement Officer was aware of the court proceedings when he served the notice of removal. The record is silent. Did he assume there was no merit to the judicial review, notwithstanding Mr. Justice Manson has already decided there was a fairly arguable case? It is only in the notes to file, dated yesterday, that there is an acknowledgment that there are, in fact, ongoing court proceedings.

The applicants have been removal ready for almost nine years. Why incarcerate Ms. Begum for a year, and deprive her of her decent income as a teacher, and then decide to remove her and her son, a son who knows nothing of Bangladesh?After further questioning on this topic, the Board member said, “So just for fun would you be able to tell where I’m from?”  The applicant attempted to answer, and the Board member replied, “Not even close, so do you understand now?  If you can’t tell where I’m from, my background, how do I know yours?”

This motion deals with the administration of justice, and disrespect of this Court. It is not quite contempt, but not far off. The sub judice rule is almost on point. Not only were proceedings ongoing, but a hearing on the merits of the judicial review has taken place.

If the Canada Border Services Agency is interpreting section 48 of the Immigration and Refugee Protection Act which now requires removal “as soon as possible” rather than “as soon as practical”, so that the only way the removal can be stopped is by court order, then so be it! What happened to common sense?

Counsel for the Minister informed the Court that the applicants would be removed on the government’s dime. If they are, however, ultimately successful in their application for permanent residence from within Canada, notwithstanding that they would be outside Canada, the government is not undertaking to pay their way back, the same government which has prevented Ms. Begum from earning any money over the last year.

The Minister “graciously” conceded there was a serious issue, but argued that there was no irreparable harm and that the balance of convenience favoured him. I am not prepared to second guess Mr. Justice Manson, and whatever Madam Justice Strickland may decide. The irreparable harm is that the applicants would be removed from Canada without the wherewithal to return should they be ultimately successful. The balance of convenience favours them.

I wonder if we would see more decisions like this if judges were able to actually listen to some Canada Border Services Agency officers tell people “I have no discretion in whether to defer your removal.  My job is to say that you will be removed ASAP, and if you want to try and stay you’ll have to go to court.”


A Common Sense Approach to A44 Reports

Canada’s Immigration and Refugee Protection Act (the “Act“) provides that an officer who believes that a foreign national or permanent resident in Canada is inadmissible to Canada (for criminality, health, overstay, working without authorization, etc.) may prepare a report alleging the inadmissibility (commonly known as an “A44 Report“).   The Act further provides that once an officer prepares an A44 Report, then the Canada Border Services Agency (“CBSA“) (the agency generally responsible for this) may commence removal proceedings, or, when necessary, refer the matter to the Immigration and Refugee Board, an independent administrative tribunal.

I have underlined the word “may” above because the use of the term “may” in the Act has caused much confusion.

In Cha v. Canada (Minister of Citizenship and Immigration), 2006 FCA 126 (“Cha“), the Federal Court of Appeal (the “FCA“) went beyond what even the government was seeking, and declared that the use of the word “may” did not actually grant CBSA officers broad discretion to exercise or not to exercise the power to write A44 Reports and to commence removal proceedings when it believed that someone was inadmissible to Canada.  The FCA stated:

In Ruby v. Canada (Solicitor General), [2000] 3 F.C. 589 (C.A.), at pages 623 to 626, Létourneau J.A. reminded us that the use of the word “may” is often a signal that a margin of discretion is given to an administrative decision maker. It can sometimes be read in context as “must” or “shall”, thereby rebutting the presumptive rule in section 11 of the Interpretation Act, R.S.C., 1985, c. I‑21 that “may” is permissive. It can also be read as no more than a signal from the legislator that an official is being empowered to do something. Even when “may” is read as granting discretion, all grants of discretion are not created equal: depending on the purpose and object of the legislation, there may be considerable discretion, or there may be little.

The FCA went on to hold that in the context of serious criminal inadmissibility CBSA officers must prepare an A44 Report and act on it, and that the use of the word “may” is “no more than an enabling provision, nothing more.”  The Federal Court has since cited Cha for the principle that CBSA officers have very little discretion in deciding whether to write an A44 Report and commencing removal proceedings once they believe that someone is inadmissible (see Nagalingam v. Canada (Public Safety and Emergency Preparedness), 2012 FC 1411).

In practice, if CBSA were to prepare an A44 Report and seek removal for every inadmissible person it would be unmanageable.  Accordingly, they have given officers the flexibility to not write an A44 Report or seek removal where the objectives of the Act may or will be achieved without the need to do so.  Most of the officers that I know like this discretion as they understand that in certain circumstances the preparation of an A44 Report would be extremely disproportionate and/or not in the public interest.  The Citizenship and Immigration Canada Enforcement Manual (the “Manual”) lists numerous factors that officers should consider when deciding whether to write A44 Reports and seek removal.  The Manual states:

Thankfully, the FCA appears to have recently indirectly addressed the issue of what “may” means in B010 v. The Minister of Citizenship and Immigration, 2013 FCA 87.   In this case, which was primarily about whether a person could be inadmissible to Canada for human smuggling if they did not receive a material benefit (they can be), the FCA stated:

 The preparation of a report is permissive, that is, an officer “may” prepare a report. As well, the Minister’s delegate “may” refer the report to the Immigration Division. It is to be expected that common sense will prevail in situations such as when family members simply assist other family members in their flight to Canada, or when a person acting for humanitarian purposes advises a refugee claimant to come to Canada without documents.

I agree.  And much as the FCA is now saying that it is to be expected that common sense will prevail in the human smuggling context, so too should common sense prevail in cases of criminality, non-compliance, misrepresentation, etc.  CBSA Officers deal with countless potential inadmissibility issues every week.  They know which ones warrant an A44 Report, and which ones don’t.  It is time that they were empowered with a “common sense” approach rather than a “no discretion” one.