Date: 20150910

Docket: IMM-4248-14

Citation: 2015 FC 1064

Ottawa, Ontario, September 10, 2015

PRESENT:    The Honourable Mr. Justice LeBlanc

ORDER AND REASONS

I.                   Introduction

[1]               The applicant seeks judicial review, pursuant to paragraph 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA or the Act], of the decision by a Citizenship and Immigration Canada [CIC] immigration officer [the Officer] refusing her application for permanent residence as a member of the live-in caregiver class.

[2]               The applicant is seeking an order quashing the Officer’s decision and referring the matter back for redetermination by another CIC officer.

[3]               For the reasons that follow, the application for judicial review is dismissed.

II.                Background

[4]               The applicant, Ms. Leilani Terante, is a citizen of the Philippines. She came to Canada in April 2007 to work as a live-in caregiver and applied for permanent residence as a member of the live-in caregiver class in May 2011. She included her two minor children, who continue to reside in the Philippines.

[5]               On June 7, 2013, CIC informed the applicant that she had met all of the eligibility requirements to apply under the live-in caregiver class, but a final decision would not be made until all remaining requirements were satisfied. The letter also indicated that she would not be able to become a permanent resident until all of her family members passed medical and background checks.

[6]               On June 15, 2013, the applicant married Mr. Sujeewa Sampath Madduma Hallina Liyanage, with whom she had been cohabiting since October 2011 and had a child with, born in March 2012. In April 2013, Mr. Liyanage applied for a Pre-Removal Risk Assessment [PRRA] after his refugee claim had been rejected in March 2012. Mr. Liyanage also had an ongoing criminal case in Canada. In early October 2013, the applicant added Mr. Liyanage to her application for permanent residence.

[7]               On October 20, 2013, CIC contacted the applicant to inform her that the requirements set out in the Immigration and Refugee Protection Regulations, SOR 2002/227 [the Regulations] for permanent residence under the live-in caregiver class still did not appear to be satisfied. Specifically, the Officer indicated that Mr. Liyanage did not meet paragraph 113(1)(e) of the Regulations:

Regulation 113(1)(e) states that a foreign national becomes a member of the live-in caregiver class if they are not, and none of their family members are, the subject of an enforceable removal order or an admissibility hearing under the Act or an appeal or application for judicial review arising from such a hearing.

Your spouse Sujeewa Madduma Hallina Liyanage is the subject of an enforceable removal order or an admissibility hearing under the Act or an appeal or application for judicial review arising from such a hearing.

[8]               The Officer provided the applicant with 60 days to submit a response.

[9]               On November 5, 2013, the applicant and Mr. Liyanage met with a Canadian Border Services Agency Officer [the CBSA Officer]. The CBSA Officer informed them that Mr. Liyanage’s PRRA had been refused. The applicant’s evidence in this application is that, after some discussion, the CBSA Officer told them that he would stay Mr. Liyanage’s removal from Canada until after the hearing of his criminal case (scheduled for January 10, 2014) and, “in light of [the applicant’s] permanent residence application and the likelihood of a decision being rendered shortly thereafter,” Mr. Liyanage’s removal would also be stayed until a final decision was made on the application. She also contends that she discussed the CIC fairness letter with the CBSA Officer, who indicated that submitting the documents related to the criminal hearing to CIC would be a sufficient response.

[10]           On November 29, 2013, the applicant requested a 90 day extension from CIC to respond the fairness letter and that request was granted. The applicant responded to the Officer on January 30, 2014. She submitted that the hearing for Mr. Liyanage’s criminal matter was held on January 10, 2014 and he had received a conditional discharge, attaching the relevant court documents.

[11]           At the request of the applicant on November 29, 2013 a 90-day extension was granted by CIC to respond to the fairness letter. On January 30, 2014 the applicant submitted the relevant court documents resulting from Mr. Liyanage’s criminal matter held on January 10, 2014 for which he had received a conditional discharge.

III.             Issues

[12]           The following issues arise in this application:

1. Did the Officer err in refusing the application for permanent residence on the basis that the applicant’s husband was subject to an enforceable removal order?
2. Did the Officer breach the duty of procedural fairness?

IV.             Standard of Review

[13]           The Officer’s assessment of the applicant’s eligibility for permanent residence as a member of the live-in caregiver class raises questions of mixed fact and law that fall within his or her expertise, so the applicable standard of review is reasonableness (Abalos v Canada (Citizenship and Immigration), 2011 FC 608 at para 15, 390 FTR 150 [Abalos], Maxim v Canada (Citizenship and Immigration), 2012 FC 1029 at para 19).

[14]           It is well-established that issues of procedural fairness are to be reviewed on the correctness standard (Mission Institute v Khela, 2014 SCC 24, [2014] 1 SCR 502 at para 79, [2014] 1 SCR 502; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339 at para 43, [2009] 1 SCR 339). However, some deference should be given to the Officer’s procedural choices (Forest Ethics Advocacy Association v National Energy Board, 2014 FCA 245, 246 ACWS (3d) 191, Re: Sound v Fitness Industry Council of Canada, 2014 FCA 48 at paras 34-42, 455 NR 87, Maritime Broadcasting System Ltd. v Canadian Media Guild, 2014 FCA 59 at paras 50-56, 373 DLR (4th) 167).

V.                Analysis

A.                Did the Officer err in refusing the application for permanent residence on the basis that the applicant’s husband was subject to an enforceable removal order?

[15]           The live-in caregiver class is a class for foreign nationals who may become permanent residents upon meeting the requirements of Part 6, Division 3 of the Regulations (Regulations, s 110).  The requirements for becoming a member of the class are set out in subsection 113(1) of the Regulations, including the requirement that neither the foreign national themselves, nor their family members, are the subject of an enforceable removal order (Regulations, s 113(1)(e)).

[16]           Family members may be included in a caregiver’s application and will become permanent residents if the caregiver becomes a permanent resident and if the family members themselves are not inadmissible (Regulations, s 114 and 114.1). All of these requirements must be met when the application for a work permit or temporary resident visa is made, when the permit or visa is issued, and when the foreign national becomes a permanent resident (Regulations, s 115).

[17]           A removal order is enforceable if it has come into force and has not been stayed (IRPA, s 48(1)) and removal orders are to be enforced as soon as possible (IRPA, s 48(2)). A removal order comes into force 15 days after one’s refugee claim is refused by the Refugee Protection Division (IRPA, s 49(1)(b)).

[18]           Section 50 of the Act provides that a removal order will be stayed in certain circumstances:

[19]           The Minister may also impose a stay of removal when the circumstances in a country or place pose a generalized risk to the entire civilian population (Regulations, s 230). Subject to some exceptions, a statutory stay of removal will apply when an applicant seeks judicial review of a decision of the Refugee Appeal Division that rejects, or confirms the rejection of, their claim for refugee protection (Regulations, s 231). The same is true while a PRRA application is being processed and thereafter if the PRRA is granted (Regulations, s 232) and in cases where the Minister is of the opinion that a stay is justified by humanitarian and compassionate or public policy considerations (Regulations, s 233).

[20]           Unlike stays of removal, deferrals of removal are not defined by the Act or the Regulations and are granted by CBSA enforcement officers at their discretion.

[21]           It is not disputed that Mr. Liyanage has been subject to a removal order following the refusal of his refugee claim. The parties do, however, differ on the question of whether that removal order remained enforceable at the time of the Officer’s decision.

[22]           The applicant submits that the Officer erred in concluding that the applicant was ineligible, since the removal order against Mr. Liyanage had been stayed by the CBSA Officer and was therefore not enforceable. In support of this argument, the applicant cites the following notes in the Field Operations Support System [FOSS]:

NEGATIVE PRRA & NEGATIVE H&C DELIVERED WITH MOTIVES. PENDING CRIMINAL CHARGES (NEXT COURT DATE 10JAN2014). APPROVED STAGE 1 FOR SPONSORSHIP BY STAY OF REMOVAL.

[Emphasis added.]

[23]           It is the applicant’s position that the CBSA Officer was likely granting a stay pursuant to section 233 of the Regulations in reliance on public policy considerations derived from the CIC IP-8 Spouse or Common-law Partner in Canada Class Operational Manual.

[24]           The respondent in turn argues that the CBSA Officer only had jurisdiction to grant a deferral of removal which, unlike a stay, does not affect the enforceability of the removal order against Mr. Liyanage. The applicant submits that the respondent’s argument is one of semantics since the effect of a stay and a deferral are the same, in that both render an enforceable removal order temporarily unenforceable.

[25]           Both a stay of removal and a deferral of removal are temporary in nature, but the larger issue at hand is who has the jurisdiction to grant a stay of removal and whether both a stay and a deferral have the effect of rendering a removal order unenforceable. A stay of removal is granted by a legislative, regulatory or judicial authority, while a deferral of removal is solely within the purview of CBSA. A CBSA officer may assess whether a statutory stay applies so as to prevent removal (Garcia v Canada (Citizenship and Immigration), 2006 FC 311 at para 39 [Garcia]), but it does not appear that they have discretion to impose such stays.

[26]           In Wang v Canada (Citizenship and Immigration), 2001 FCT 148, [2001] 3 FC 682 [Wang], Justice Denis Pelletier held that the discretion to defer removal is founded in section 48 of the Act, noting that this discretion should only be exercised “in circumstances where the process to which deferral is accorded could result in the removal order becoming unenforceable or ineffective” (Wang at para 48). Justice Pelletier found that granting deferral solely for the purpose of delay is not consistent with the Act, as deferral “should be reserved for those applications or processes where the failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment in circumstances and where deferral might result in the order becoming inoperative” (Wang at para 48). A deferral is also appropriate when some collateral process might affect the enforceability of the removal order, such as where the other process might create a “situation in which the execution of the removal order was no longer mandatory” (Wang at para 33).

[27]           This concept of limited discretion was echoed by Justice Danièle Tremblay-Lamer in Garcia, above, when she stated that “the discretion of the officer responsible for removal is clearly limited to when a removal order will be carried out” (Garcia at para 39).

[28]           Further, the Federal Court of Appeal held in Canada (Public Safety and Emergency Preparedness) v Shpati, 2011 FCA 286 [Shpati] that the functions of CBSA removal officers are limited and deferrals are intended to be temporary. This finding was driven by “both the primary statutory duty to remove, and the language chosen by Parliament to confine enforcement officers’ discretion,” referring to subsection 48(2) which, at the time of both Wang and Shpati, specified that removal be executed “as soon as reasonably practicable” (Shpati at para 45). This discretion is arguably even narrower now that the obligation placed on CBSA officers is to enforce removal orders “as soon as possible” (IRPA, s 48(2), see Peter v Canada (Public Safety and Emergency Preparedness), 2014 FC 1073).

[29]           I agree with the respondent that Mr. Liyanage’s circumstances do not give rise to a statutory stay pursuant to section 50 of the Act. There was no judicial decision that would have contravened if the removal order was enforced, he was not serving a sentence in Canada, and he does not benefit from a stay imposed by the Immigration Appeal Division, a judicial stay, or a stay under paragraph 114(1)(b) of the IRPA. He also does not appear to have the benefit of a stay pursuant to sections 230 to 234 of the Regulations.

[30]           I further agree with the respondent that a deferral granted by a CBSA enforcement officer is not a stay imposed by the Minister for the purposes of subsection 50(e) of the Act. The Minister of Public Safety and Emergency Preparedness is the Minister for the purpose of section 50 of the Act (Order Setting Out the Respective Responsibilities of the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness, SI/2005-120). The Minister’s power to impose a stay under subsection 50(e) has been delegated to the Director General of the Border Services Directorate, Operations Branch, except “in cases relating to interim measures requests and decisions made by International Human Rights Treaty Bodies.” A stay of removal under subsection 50(e) is a statutory power and there is no evidence to suggest that this authority has been delegated to CBSA removal officers.

[31]           In my opinion, CBSA removal officers’ discretion is limited to assessing the person’s circumstances so as to determine the timing of removal, not to make legal determinations of the nature raised in statutory and judicial stays of removal. When they grant a deferral, they are not rendering the underlying removal order unenforceable; they are just suspending its application temporarily. This is a slight difference in the short-term, but it becomes more important when one considers that some of the statutory stays might result in very long stays of removal, such as the temporary suspension of removals to Haiti imposed by the Minister following the earthquake and which was in force for approximately 4 years. Therefore, it would appear that stays and deferrals are intended to address very different types of circumstances and to perform different functions in the immigration system.

[32]           This differentiation seems to find support in the jurisprudence holding that removal officers do not have the jurisdiction to redetermine PRRAs or applications for permanent residence based on humanitarian and compassionate considerations made under paragraph 25(1) of the Act (e.g. Charles v Canada (Public Safety and Emergency Preparedness), 2012 FC 1096 at paras 28-29), their discretion to assess risk and personal circumstances being limited to deciding whether or not the obligation to remove can be carried out. Further, I note that the Act specifically indicates which body is responsible for each of the stays of removal outlined in the Act (the Minister, the Immigration Appeal Division, the courts, etc.). This, in my view, suggests that if Parliament had intended for removal officers to have the ability to impose stays for the purpose of rendering removal orders unenforceable, it would have done so. No similar administrative decision-maker is accorded the authority to grant stays in the legislation. In my view, this, again, reflects the differing purposes of stays and removals.

[33]           The applicant further submits that the Officer’s findings regarding the stay of removal were made without regard to the material before him. However, the FOSS notes show that the Officer acknowledged receipt of the criminal court documents submitted by the applicant. The applicant made no submissions to the Officer about the enforceability of the removal order, so the sole mention of this issue was the note in her immigration file about the “stay” granted by the CBSA Officer. Given my finding that a stay of removal exceeds the jurisdiction of the CBSA Officer, it would be reasonable for the Officer to conclude that Mr. Liyanage had only been granted a deferral of removal. This conclusion was based on the answers and evidence provided by the applicant, as well as the information contained in her immigration file.

[34]           Once the Officer made that determination, he or she had to refuse the application. Immigration Officers may apply a “flexible and constructive approach” in processing live-in caregiver applications (Turingan v Canada (Minister of Employment and Immigration) (1993), 72 FTR 316, 24 Imm LR (2d) 113 (FC), Santos v Canada (Citizenship and Immigration), 2009 FC 360, 343 FTR 284), but this does not mean that they can depart from the statutory requirements for membership in the class. In assessing these applications, Immigration Officers are exercising a ministerial duty which involves “no element of discretion or independent judgment” (Laluna v Canada (Citizenship and Immigration) (2000), 182 FTR 134, 95 ACWS (3d) 545 at para 16 [Laluna]). This means that the Officer had no ability to grant the application once he or she had determined that the requirement in subsection 113(1)(e) of the Act had not been met (Abalos at para 42, see also Lumayno v Canada (Citizenship and Immigration), 2009 FC 765, 179 ACWS (3d) 911).

[35]           I find that the Officer’s conclusion that Mr. Liyanage is subject to an enforceable removal order falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law. As such, the Officer reasonably concluded that the applicant could not be a member of the live-in caregiver class for the purposes of permanent residence.

B.                 Did the Officer breach the duty of procedural fairness?

[36]           The applicant submits that the Officer breached the duty of procedural fairness because the terms of the fairness letter were overly broad, which had the effect of obscuring the case she had to meet and denying her a meaningful opportunity to respond. She argues that in these circumstances the Officer should have made another, more specific request for information based on his or her concerns regarding her eligibility under paragraph 113(1)(e).

[37]           I agree with the respondent that the applicant has been afforded all procedural fairness required in the circumstances. The fairness letter fully disclosed the source of the Officer’s concerns, having listed all possible grounds for refusal under paragraph 113(1)(e) of the Act. She was granted an extension of time to provide her response. The fact remains, however, that her submissions did not provide adequate evidence to suggest that Mr. Liyanage was not subject to an enforceable removal order. In fact, she did not mention this issue in her response at all, choosing to focus only on the issue of Mr. Liyanage’s criminal charges. The onus is on the applicant and her failure to furnish information in support of her case cannot be blamed on the Officer.

[38]           The applicant submits that the Officer further breached the duty of fairness by failing to consider her application in light of the legitimate expectation created by the stay of removal granted by the CBSA Officer. In my view, there can be no legitimate expectation based on the CBSA’s misuse of the word “stay” in their discussions or in the FOSS notes. This may have caused some confusion for the applicant, but as discussed earlier, the CBSA Officer did not have discretion to grant a stay of removal. The doctrine of legitimate expectation is a procedural doctrine that cannot give rise to substantive rights or be used to counter express parliamentary intent (Canada (Minister of Citizenship and Immigration) v Dela Fuente, 2006 FCA 186 at para 19, [2007] 1 FCR 387).

[39]           The applicant also claims that the Officer breached the duty of fairness by providing inadequate reasons. The Officer was not required to discuss every factor which played a part in the decision-making process (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16). This was a discretionary decision and the reasons for the refusal are transparent and intelligible.

[40]           Finally, the applicant contends that the Officer had the duty to provide her with some basic information with regard to alternate permanent residency applications, such as deleting Mr. Liyanage from her application. She is relying on the case of Ycasas v Canada (Minister of Citizenship and Immigration), 2001 FCT 554 [Ycasas], in support of that proposition.

[41]           Ycasas does not appear to have been followed and I have seen nothing like it in other matters decided before this Court. Other than the initial fairness letter, I’m not persuaded that the courts have imposed any further obligation on visa officers to continue to follow-up with applicants or to make suggestions. This is consistent with the generally held view that immigration officers are under no duty to highlight weaknesses, request further submissions to overcome these weaknesses or otherwise provide advice to enhance the chances of success of applicants be it in the context of a PRRA application (Adetunji v Canada (Minister of Citizenship and Immigration), 2012 FC 708 at para 19, [2012] FCJ No 698; Ferguson v Canada (Minister of Citizenship and Immigration), 2008 FC 1067, at para 22, [2008] FCJ No 1308), an application for permanent residence for humanitarian and compassionate considerations (Kisana v Canada (Minister of Citizenship and Immigration), 2009 CAF 189, at para 45), or a visa application (Hamza v Canada (Citizenship and Immigration), 2013 FC 264, 429 FTR 93 at paras 22-24; Ansari v Canada (Citizenship and Immigration), 2013 FC 849 at para 18; Sharma v Canada (Citizenship and Immigration), 2009 FC 786, at para 8; Chen v Canada (Citizenship and Immigration), 2011 FC 1279, at para 22; Rukmangathan v Canada (Minister of Citizenship and Immigration), 2004 FC 284, 247 FTR 147, at para 23).

[42]           The same approach was recently followed in the context of an application for permanent residence under the Convention refugees abroad class in Mariyadas v Canada (Minister of Citizenship and Immigration), 2015 FC 741. This Court held that although applicants for permanent residence under that class were to be given a full opportunity to identify the basis of their fears, officers did not have a duty to suggest possible grounds of protection for the applicant to adopt in his or her application (Mariyadas, at para 32).

[43]           I see no reason to depart from these principles when someone applies for permanent residence as a member of the live-in caregiver class.

[44]           Neither party has proposed a question of general importance.  None will be certified.

ORDER

THIS COURT ORDERS that:

1.                  The application for judicial review is dismissed; and

2.                  No question is certified.

"René LeBlanc"

APPENDIX A

The following provisions of the Act arise in this proceeding:

The following provisions of the Regulations arise in this proceeding:

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: