Docket: IMM-10681-23
Citation: 2024 FC 1846
Ottawa, Ontario, November 19, 2024
PRESENT: The Honourable Mr. Justice Ahmed
BETWEEN: |
URU LIYANAGE DON PRASAD NISHANTHA GUNASINGHE AGRA SAJEEWANI GOMES URU LIYANAGE DONA S PRASADHIKA GUNASINGHE URU LIYANAGE DONA C SEHANSA GUNASINGHE
|
Applicants |
and |
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicants seek judicial review of a negative deferral decision of an Internal Enforcement Officer (the “Officer”
) of the Canada Border Services Agency (“CBSA”
) dated August 29, 2023 pursuant to subsection 48(2) of the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”
).
[2] The Applicants submit that the Officer erred by disregarding key pieces of evidence, rendering a decision that was divorced from the record and therefore unreasonable. For the reasons below, I disagree. The Officer’s decision is reasonable. This application for judicial review is dismissed.
II. Facts
A. The Applicants
[3] Collectively as the Applicants, Uru Liyanage Don Prasad Nishantha Gunashinghe (the “Principal Applicant”
), Agra Sajeewani Gomes (the “Associate Applicant”
), and their two children, S and C (the “Minor Applicants”
) submitted a request for deferral of removal on August 18, 2023.
[4] The Applicants are citizens of Sri Lanka. The Applicants relocated to Canada in 2020 following political persecution of the Principal Applicant and sexual harassment of the Minor Applicant, S.
[5] The Principal Applicant is a supporter of the UNP, a political party in Sri Lanka. Shortly before the 2018 municipal elections, the Principal Applicant was assaulted by associates of a politician belonging to the rival SLPP party (“SLPP Politician”
).
[6] Shortly afterwards, the Minor Applicant S began to be “continually harass[ed]”
by a relative of the SLPP Politician at school. S eventually stopped attending school due to fears for her safety. As the harassment escalated, the Principal Applicant made arrangements for S to relocate to Canada, where she arrived in 2019.
[7] Following S’s arrival in Canada, the Principal Applicant states that the rest of the family continued to be targeted by the SLPP Politician and his associates. Consequently, the Principal Applicant, the Associate Applicant, and the Minor Applicant C travelled to Canada and initiated refugee claims in 2020.
[8] In November 2021, the Refugee Protection Division (“RPD”
) refused the Applicants’ refugee claims on the basis of viable Internal Flight Alternatives (“IFAs”
) in the cities of Anuradhapura and Batticaloa.
[9] The Applicants appealed the RPD’s decision, appending additional evidence about attempts by police to apprehend the Principal Applicant in Sri Lanka. In March 2022, the Refugee Appeal Division (“RAD”
) dismissed the appeal, partly because the additional evidence was found to lack credibility.
[10] The Applicants then brought an application for leave to judicially review the RAD’s decision. In March 2023, their application for leave was dismissed.
[11] The CBSA commenced removal proceedings in June 2023. By August 2023, the Applicants were deemed fit to fly following a Medical Requirements for Removal Assessment.
[12] That same month, the Applicants filed an application for permanent residence (“PR”
) on humanitarian and compassionate (“H&C”
) grounds along with a request to defer their removal. To their deferral request, they added new evidence of attempts by the Sri Lankan police to locate the Principal Applicant, including a Notice to Report from the Criminal Investigation Division (“CID”
) of the Sri Lanka Police Service.
[13] The Applicants’ deferral request was refused on August 29, 2023. The Officer determined that there was insufficient new evidence to warrant granting a deferral under any of the grounds listed by the Applicants, namely: (1) risk of persecution in Sri Lanka, (2) the Applicants’ outstanding H&C applications, and (3) disruption to the school term for the Minor Applicant C. This is the decision that is presently under review.
III. Issue and Standard of Review
[14] The sole issue in this application is whether the Officer’s decision is reasonable.
[15] The standard of review on the merits of the decision is not disputed. The parties submit that the applicable standard of review is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 16–17, 23–25 (“Vavilov”
)). I agree.
[16] Reasonableness is a deferential, but robust, standard of review (Vavilov at paras 12-13, 75, 85). The reviewing court must determine whether the decision under review, including both its rationale and outcome, is transparent, intelligible and justified (Vavilov at para 15). A decision that is reasonable as a whole is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker (Vavilov at para 85). Whether a decision is reasonable depends on the relevant administrative setting, the record before the decision maker, and the impact of the decision on those affected by its consequences (Vavilov at paras 88-90, 94, 133-135).
[17] For a decision to be unreasonable, the applicant must establish the decision contains flaws that are sufficiently central or significant (Vavilov at para 100). Not all errors or concerns about a decision will warrant intervention. Flaws or shortcomings must be more than superficial or peripheral to the merits of the decision, or a “minor misstep”
(Vavilov at para 100). A reviewing court must refrain from reweighing evidence before the decision maker, and it should not interfere with factual findings absent exceptional circumstances (Vavilov at para 125).
IV. Analysis
A. Risk of Persecution
[18] The Applicants submit that the Officer failed to consider new evidence of the Applicants’ risk of detention and mistreatment in Sri Lanka. The Applicants cite “new…developments [which] have occurred since the [RAD]”
decision, including the CID Notice to Report and a message from the Sri Lanka Police Service that the Principal Applicant must immediately report to a police station. The Applicants also discuss evidence of the mistreatment “of returning failed refugee claimants to Sri Lanka,”
in addition to the elevated risk faced by the Principal Applicant, who “would be likely to be questioned by the Sri Lankan authorities upon return and checked against [a] watchlist due to his profile.”
The Applicants submit that the Officer failed to consider the new evidence and thus committed a reviewable error.
[19] The Respondent submits that the Officer did not err in his analysis of risk, as the Applicants failed to bring evidence of a new risk not previously assessed by decision-makers.
[20] I agree with the Respondent.
[21] The Applicants’ submissions are contradicted by the record. The Officer’s written reasons make specific reference to “the possible heavy legal repercussions stated by the CID,”
“inquiries…about [the Applicants’] whereabouts,”
“[t]he risk to failed refugee claimants,”
and “[t]he likelihood that [the Principal Applicant] would face questioning by authorities upon his return and be checked against [a] watch-list due to his profile.”
Contrary to the Applicants’ submissions, it is clear that the Officer considered the new evidence in their assessment.
[22] Additionally, I agree with the Respondents that the Applicants failed to raise evidence of a new risk that was not previously assessed by the RPD, the RAD, or the Federal Court. Instead, the Applicants brought further evidence of their risk of persecution by police and the SLPP politician in Sri Lanka, issues which had been previously assessed by immigration decision-makers. This is not sufficient to warrant a deferral of removal.
B. Outstanding H&C Application
[23] The parties acknowledge that the Officer’s discretion to defer removal is limited. An outstanding H&C application does not justify a deferral unless a decision on the H&C application is imminent, there are special considerations which apply to the Applicants, or there is a threat to the Applicants’ personal safety (Wang v Canada (Minister of Citizenship and Immigration)(T.D.), 2001 FCT 148 at paras 48-50; Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 at paras 50-51; Dwyer v Canada (Minister of Public Safety and Emergency Preparedness), 2020 FC 919 at para 65).
[24] It is the Applicants’ submission that a deferral is warranted “[g]iven the Family’s personal circumstances.”
The Applicants state that the deportation has seriously affected their mental health and that “the Associate Applicant’s doctor has recommended suspending travel for at least three months”
to determine whether the Associate Applicant has ischemic heart disease. The Applicants note that the Associate Applicant and the Principal Applicant take medication for several health conditions, and that “Sri Lanka faces a humanitarian crisis and almost the entire country cannot access basic medications and health care needs.”
As a result, the Applicants submit that they would face irreparable harm if they are deported to Sri Lanka.
[25] The Respondent submits that the Officer considered the Applicants’ mental health, physical health, and the availability of medicine in Sri Lanka. According to the Respondent, the Officer found that the Applicants’ mental health issues do not constitute irreparable harm because they do not amount to “something more than the inherent consequences of deportation”
(Ryabinin v Canada (Public Safety and Emergency Preparedness), 2016 FC 1118 at para 8). Similarly, the Respondent submits that the Officer considered the doctor’s recommendation that the Associate Applicant not travel for three months, but found that subsequent diagnostics reported “no indication of ischemic heart disease or contraindication to travel.”
Lastly, the Respondent submits that, since the Applicants did not bring a timeline for when the availability of medicine in Sri Lanka may improve, they were essentially suggesting an indefinite deferral, which is not an appropriate remedy in the stay motion context (Dada v Canada (Public Safety and Emergency Preparedness), 2018 CanLII 110424 (FC)).
[26] I agree with the Respondent.
[27] The Officer did not err in determining that the evidence provided by the Applicants was insufficient to warrant a deferral. The decision demonstrates that the Officer was sensitive to the Applicants’ medical history, their physical health, and the availability of medicines in Sri Lanka. The Applicants are effectively requesting this Court to reweigh the evidence and decide for itself the issues that were before the Officer, a request which falls outside the scope of judicial review on the standard of reasonableness (Vavilov at paras 83, 125).
[28] Furthermore, I note that a deferral of removal is a temporary measure. By requesting a deferral until the determination of their PR application, the Applicants are effectively seeking the long-term status of permanent residency outside of the legislative mechanisms set out in IRPA for acquiring this status. As the Respondent rightfully put it, a deferral is not the appropriate means to obtain such a remedy.
C. Disruption to the School Term
[29] The Applicants submit that the Officer erred by disregarding evidence of the impact that removal would have on the Minor Applicants’ education. The Minor Applicant S has graduated and only the Minor Applicant C remains enrolled in school. The Applicants state the Officer failed to consider evidence of the language barrier that C would experience upon returning to Sri Lanka, the disruption that would be caused by enrolling C in the “Sri Lankan school system midway through the second term,”
or the growth and achievements of C in the Canadian school system.
[30] The Respondent submits that the Officer’s reasons are responsive to the Applicants’ concerns. According to the Respondent, the Officer considered the potential disruption that would arise if the deferral was granted and if the deferral was denied, finding that, “[e]ither way, it would be disruptive for the children.”
The Officer also considered the Minor Applicants’ success in adjusting to the Canadian school system midway through an academic term upon their arrival in 2020. The Respondent submits that, although this portion of the analysis was placed under a different heading in the Officer’s reasons, “the Officer clearly turned their mind to how the ‘crisis’ in Sri Lanka may impact the Applicants (including the children and their schooling) upon their return.”
[31] Once again, I agree with the Respondent.
[32] The written reasons demonstrate that the Officer considered the Minor Applicant C’s schooling and educational needs. The Officer acknowledged “that the children are accustomed to being educated in English and that public schools [in Sri Lanka] do not offer education in English,”
as well as the Applicants’ “concern that entering the Sri Lankan school system now would place them “mid-way through second term.””
The Officer also noted that the Minor Applicants “have been reported as adjusted and thriving”
in Canada and that C has achieved “great success…during this period.”
I do not find that the Officer failed to consider this evidence in denying the deferral request.
[33] I also do not find that the Officer’s decision is unreasonable simply because C would be required to change schools in the middle of the Sri Lankan academic term. Citing Iheonye v Canada (Public Safety and Emergency Preparedness), 2018 FC 375 (“Iheonye”
), the Applicants submit that “the schooling situation of [C] warranted a short deferral of removal until December 2023.”
However, as stated by my colleague Justice Grammond, albeit in the context of assessing whether a serious issue exists pursuant to the test for a stay of removal in Toth v Canada (Minister of Employment and Immigration), [1988] FCJ No 587, 86 NR 302 (FCA), “Iheonye and similar cases do not stand for the proposition that children can never be removed during the school year. Rather, it is mainly when a school year is about to end that removal may be deferred on this ground”
(Quezada Salas v Canada (Citizenship and Immigration), 2022 FC 1801 at para 37).
[34] The situation of the Minor Applicant C does not fall under the “narrow circumstances”
in which “the need to finish a school year may constitute a valid reason to defer removal”
(Iheonye at para 19). C is not on the cusp of finishing the school year in Canada. She is not “in her graduating year”
nor does she require “special accommodation not available in the country of removal”
(Oworu v Canada (Public Safety and Emergency Preparedness), 2023 CanLII 51300 (FC)).
[35] Notwithstanding that her circumstances do not fall under the narrow circumstances outlined in Iheonye, the written reasons show that the Officer duly considered the impact that deportation would have on the Minor Applicant C’s education. The Applicants’ submissions to the contrary are not supported by the record.
V. Conclusion
[36] This application for judicial review is dismissed. The Officer’s decision “bears the hallmarks of reasonableness”
and is justified in relation to its legal and factual constraints (Vavilov at paras 85, 99). No questions for certification were raised, and I agree that none arise.
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