G.M. v. Canada (Minister of Public Safety and Emergency Preparedness), (2013) 435 F.T.R. 165 (FC)

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: April 15, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 435 F.T.R. 165 (FC);2013 FC 709

G.M. v. Can. (2013), 435 F.T.R. 165 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] F.T.R. TBEd. JL.003

G.M. (applicant) v. The Minister of Public Safety and Emergency Preparedness (respondent)

(IMM-8122-12; 2013 FC 709; 2013 CF 709)

Indexed As: G.M. v. Canada (Minister of Public Safety and Emergency Preparedness)

Federal Court

Russell, J.

June 26, 2013.

Summary:

The applicant applied for judicial review of a decision of an Enforcement Officer of the Canada Border Services Agency which denied the applicant's request for a deferral of his removal from Canada.

The Federal Court dismissed the application.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Aliens - Topic 1797.2

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Deportation or removal order - Appeals or judicial review (incl. reopening) - Deferral of removal order - The Applicant was a Hungarian man of Roma ethnicity - In 2001, he entered Canada and made a claim for refugee protection - His claim was denied and he left Canada in 2004 - After returning to Hungary, the applicant was married and took his wife's name - The applicant and his wife fled to Canada in 2011 - His wife arrived first with her children, and they made a refugee claim upon arrival - The applicant's wife provided Canada Border Services Agency (CBSA) officials at the airport with the applicant's airline information and a copy of his passport, which included his birth certificate and married name - She also explained that the applicant would be arriving three days later, would not claim refugee status because of his earlier refusal, and would seek to enter Canada as a visitor - The applicant arrived three days later and was given a six month visitor's visa upon arrival - In June 2012, the applicant was ordered deported - His Pre-Removal Risk Assessment was refused - The applicant requested deferral of his removal until his wife's refugee claim could be dealt with - An Enhancement Officer denied the request - The applicant applied for judicial review, asserting that the Officer erroneously imputed an intention to contravene the Immigration and Refugee Protection Act by the applicant's name change - The Federal Court dismissed the application - The applicant argued that it was a matter of balancing and that, had the Officer not made the mistake about the applicant's motives for changing his name, a decision could have been made in his favour - However, even if the wife's evidence on the applicant's name change had been taken into account, the court could not see how this could, reasonably, have made a difference to a decision in which so many other factors and findings counted against the applicant, including that he entered Canada illegally because he failed to obtain an Authorization to Return to Canada, and the applicant did not challenge any other finding or aspect of the reasons - The name change issue had to be examined in the context of the Officer's limited discretion to defer - There was simply no reason why the applicant could not travel - The Officer was not conducting an H&C analysis - Illegal entry could be considered by a removals officer and on these facts, there was little in the applicant's favour to warrant a positive decision.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para.15].

Mejia v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 477; 2012 FC 980, refd to. [para. 16].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 17].

Khakh v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 506; 2008 FC 710, refd to. [para. 25].

Andujo v. Canada (Minister of Citizenship and Immigration) (2011), 391 F.T.R. 298; 2011 FC 731, refd to. [para. 26].

Chazaro v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 563; 155 A.C.W.S.(3d) 640; 2006 FC 966, refd to. [para. 30].

Sharpe v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 514; 2009 FC 843, refd to. [para. 30].

Baron et al. v. Canada (Minister of Public Safety and Emergency Preparedness), [2010] 2 F.C.R. 311; 387 N.R. 278; 2009 FCA 81, refd to. [para. 32].

Ramada v. Canada (Solicitor General), [2005] F.T.R. Uned. 679; 2005 FC 1112, refd to. [para. 32].

Ontario Association of Architects v. Association of Architectural Technologists of Ontario (2002), 291 N.R. 61; 2002 FCA 218, refd to. [para. 36].

Counsel:

Aviva Basman, for the applicant;

John Provart, for the respondent.

Solicitors of Record:

Aviva Basman, Refugee Law Office, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on April 15, 2013, by Russell, J., of the Federal Court, who delivered the following judgment at Ottawa, Ontario, on June 26, 2013.