Date: 20061123
Docket: IMM-658-06
Citation: 2006 FC 1401
Ottawa, Ontario, November 23, 2006
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
GEORGE
ANTHONY BETTON
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. George Betton was ordered to leave Canada in December 2005.
He asked an immigration enforcement officer to defer his removal on the grounds
that his wife was pregnant, and she had health concerns that would be exacerbated
by the stress of his departure. He stated that their children would be
adversely affected because he provided them financial and emotional support,
and his wife would have difficulty caring for them in her current condition. He
asked for a deferral until his wife gave birth or until his application for
humanitarian and compassionate relief had been decided. The officer refused.
[2]
Mr. Betton obtained a stay of the removal order pending this application
for judicial review. He argues that the officer failed to consider a medical
report describing the impact his departure would have on his wife’s health. He
also argues that the officer failed to consider the best interests of his
children. He asks me to order a reconsideration of his deferral request by another
officer.
[3]
I agree that the officer failed to consider the best interests of
Mr. Betton’s children and must, therefore, allow this application for judicial
review.
I. Issues
- Did the officer fail to consider
the medical evidence?
- Did the officer fail to consider
the best interests of Mr. Betton’s children?
II. Analysis
[4]
Before considering the specific issues raised by Mr. Betton, I
note that enforcement officers have a limited discretion to defer removal. In
turn, the Court will intervene only where officers overlook an important factor
or seriously misapprehend the circumstances surrounding the removal: Ramada v.
Canada (Solicitor General), 2005 FC 1112, [2005] F.C.J. No.
1384 (T.D.) (QL).
1. Did the
officer fail to consider the medical evidence?
[5]
Included in his submissions to the enforcement officer was an affidavit sworn
by Mr. Betton’s spouse. In it, she explained her concerns about his imminent
departure, including the impact on her health. She attached opinions from her
physician that corroborated her concerns.
[6]
In his reasons, the officer took note of Mr. Betton’s spouse’s
pregnancy, the stress she was under and her fluctuating blood count, but did
not specifically mention the medical report. However, he did state that he
considered her affidavit and its attached exhibits. Mr. Betton argues that the
officer had an obligation to consider and explicitly refer to the medical
report, given that it provided professional corroboration of her personal
concerns. In the circumstances, I disagree. There was little, if anything, in
the medical reports that was not contained in the affidavit or the other
submissions to the officer. He clearly took note of the main concerns. I cannot
find anything in the officer’s approach to this evidence that would justify the
Court’s intervention.
2. Did the officer
fail to consider the best interests of Mr. Betton’s children?
[7]
Within their limited discretion, enforcement officers must consider
submissions about the immediate impact that removal might have on the departing
persons’ children: Munar v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1180, [2005] F.C.J. No. 1448
(T.D.) (QL). In this case, Mr. Betton submitted that his removal would
seriously affect his children because they would suffer without his financial
and emotional support. Further, he stated that his wife would have difficulty
caring for the children on her own in her current condition.
[8]
The officer acknowledged Mr. Betton’s family but stated that he was “not
qualified” to determine the best interests of a child. The respondent argues
that this answer was appropriate in the circumstances, given both the limited
role of enforcement officers and general nature of the submissions about Mr.
Betton’s children. The concerns about the children, the respondent suggests,
were not immediate. They were long-term and more appropriately dealt with in
Mr. Betton’s application for humanitarian and compassionate relief.
Accordingly, the officer should not have been expected to address them.
[9]
In my view, at least some of the concerns about Mr. Betton’s children
were immediate – in particular, their care and financial support in the
short-term. The officer should have considered whether a deferral of Mr.
Betton’s removal was necessary to allow an opportunity for appropriate
arrangements to be made for the children.
[10]
Given that the officer failed to consider an important factor, I
must allow this application for judicial review and order another officer to
consider Mr. Betton’s request for a deferral. Neither party proposed a question
of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT IS
that:
1.
The
application for judicial review is allowed.
2.
The
applicant’s request for deferral must be re-assessed by a different officer.
3.
No
question of general importance is stated.
“James
W. O’Reilly”
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