Tuesday, October 5, 2010

The Court set aside a refusal to deter based on a long filed H & C application.acknowledged the outstanding H&C application, failed to turn his mind to whether it amounted to a special circumstance on the facts of this case. The Applicant, at the material time, had a timely H&C application outstanding for some three years through no fault of the Applicant. Not to recognize this as a possible factor in a deferral decision would be to secretly undercut the H&C process from the perspective of applicants. In my view, this is not entirely remedied by the fact that the H&C process can be continued outside Canada.

[43] As the Applicant points out, following Simoes, above, in deciding when it is “reasonably practicable” for a removal order to be executed, a removal officer may consider various factors such as illness, other impediments to travel and pending H&C applications that were brought on a timely basis but have yet to be resolved due to backlogs in the system. In the present case we also have the same error that occurred in Bhagat, above, at paragraph 18: “it is clear that the Enforcement Officer calculated timeliness not in terms of when the H&C application was filed but when it would be decided.”

[44] I note also that in Harry, above, Justice Gibson calculated that an H&C application was outstanding in terms of the time lapse between the time the H&C application was filed and when the applicant in that case was scheduled to be removed. Moreover, as I pointed out in Villanueva v. Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC 543 (Can. LII), Justice Zinn in Williams v. Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC 274 at paragraph 36 made it clear that

[w]here the Minister has failed in his duty to promptly process an H&C application, then this should be a relevant consideration when determining when it is "reasonably practicable" to remove that applicant. Where an H&C application was filed promptly and the only reason why it has not been determined lies in the hands of the Minister, then the Minister should not be allowed to rigorously enforce his duty of removal when he has been delinquent in his duty to process applications that may make the removal unnecessary or invalid.

[45] was long outstanding through no fault of the Applicant, the Officer failed to turn his mind to this issue in deciding whether this was a special circumstance that affected the reasonable practicality of removal. In my view, this was a reviewable error and the Decision must be returned for reconsideration.

2010 FC 992
Key Issues: 
Deferral of removal outstanding H & C