Kunni v. Canada (Minister of Citizenship and Immigration), 2004 FC 212

Date: 20040210

Docket: IMM-1027-04

Citation: 2004 FC 212

Ottawa, Ontario, on this February 10th, 2004

Present:           The Honourable Mr. Justice Mosley                                     

BETWEEN:

                                                                      AIYUB KUNNI

                                                                                                                                                       Applicant

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 Mr. Kunni is a citizen of Fiji and has been a permanent resident of Canada for over twenty years. He was ordered deported from this country in January 2003 as a result of serious criminality including a robbery conviction in 2001 for which he received a sentence of two years incarceration plus a term of probation. Mr. Kunni is diabetic, and suffers from a number of severe psychiatric disorders and long-term multiple substance abuse problems. He requires daily injections of insulin and daily medication for the psychiatric conditions.

[2]                 While in custody, Mr. Kunni made an application for protection under s.112 of the Immigration and Refugee Protection Act, S.C. 2001, c.27 ("IRPA"), primarily on the basis that he would be unable to obtain adequate medical and psychiatric care in Fiji. A Pre-removal Risk Assessment concluded on March 25, 2003, that any risks that the applicant might face would not be the result of the inability of his country of nationality to provide medical or health care.           

[3]                 Mr. Kunni was released from the custodial portion of his sentence in September, 2003 and the Minister's staff have since been making efforts to execute the deportation order.

[4]                 Those efforts have been necessarily complicated by Mr. Kunni's medical history and on-going need for treatment. To address those concerns, the enforcement officers contacted the Fijian government and received assurances that the required medications would be made available to the applicant at minimal or no cost.

[5]                 On February 5^th, 2004, Enforcement Officer M.C. Flexhaug advised Mr. Kunni that his removal was scheduled to take place on Sunday, February 8^th, 2004 with arrival in Fiji on the 10^th. In response to inquiries from Mr. Kunni's counsel, Officer Flexhaug wrote the same day to advise that he had no authority to "defer the execution of this deportation order" and that he was "duty bound to carry it out pending any federal court ruling to the contrary."

[6]                 Mr. Kunni immediately sought such a ruling pending determination of an underlying application for leave and judicial review of the Officer's refusal to defer his removal. The grounds for the motion essentially being that the officer fettered his discretion by refusing to consider a deferral, that the applicant would suffer irreparable harm if returned to Fiji because of his medical condition and that the balance of convenience lies in his favour, again because of his condition and the lack of support awaiting him in Fiji.

[7]                 Written submissions were received on Friday, February 7^th. The parties were heard by telephone on Saturday, February 8^th and at the end of that conference an order was issued dismissing the application on the basis that the three-part test had not been met: Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A).

[8]                 As enunciated by Pelletier J., as he then was, in Wang v. Canada (Minister of Citizenship and Immigration), 2001 FCT 148, [2001] F.C.J. No. 295 (T.D.)(QL), an elevated standard applies to a stay motion arising from a refusal to defer an applicant's removal because the stay, if granted, effectively grants the relief sought in the underlying judicial review application. Accordingly, it is necessary to go further than simply applying the "serious issue" test and to closely examine the merits of the underlying application.

[9]                 Enforcement officers executing removal orders under section 48 of IRPA have a very limited discretion to defer removal. The order must be "enforced as soon as reasonably practicable" in the words of the section. There must be a lawful reason for not executing the removal order, found in the statute or in some other legal obligation sufficient in importance to relieve the Minister from compliance with section 48: Wang, supra.

[10]            Justice Russell of this court recently reviewed the authorities regarding this issue in Prasad v. Canada (Minister of Citizenship and Immigration), 2003 FCT 614, [2003] F.C.J. No. 805 (T.D.)(QL) and concluded that a failure to consider compelling individual circumstances, such as personal safety or health, may constitute an unlawful fettering of the officer's discretion.

[11]            The evidence before me was clear that the enforcement officer had considered Mr. Kunni's medical condition and had taken steps to obtain assurances from the Fijian government that medication and health care would be available to the applicant before completing the arrangements for his removal to Fiji. Further the respondent submitted evidence that Fiji's health care system was "adequate" in the view of Health Canada's Travel Medicine Program and that basic medications, such as insulin, would be readily available at minimal or no cost. No evidence was offered by the applicant to effectively challenge those assertions.

[12]            In the circumstances, I was unable to conclude that there was a serious issue to be tried with respect to the exercise of the officer's discretion. Nor was I satisfied that the applicant would suffer irreparable harm if returned to Fiji, based on the evidence. At its highest, the applicant's motion rested on the inference that the quality of the health care available to him in that country would not meet Canadian standards. That is an insufficient basis on which to interfere with the exercise of the Minister's duty.

[13]            This motion for stay of removal was, accordingly, dismissed.

"Richard G. Mosley"

F.C.J.

                                                                 FEDERAL COURT

                                                          SOLICITORS OF RECORD

DOCKET:                                             IMM-1027-04

STYLE OF CAUSE:                           AIYUB KUNNI

AND

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

PLACE OF HEARING:                     Ottawa / Edmonton

via Teleconference

DATE OF HEARING:                       February 7, 2004

REASONS FOR ORDER

AND ORDER BY:                              The Honourable Mr. Justice Mosley

DATED:                                                February 10, 2004

APPEARANCES:

Kevin Moore                                                                                   FOR THE APPLICANT

Rick Garvin                                                                                     FOR THE RESPONDENT

SOLICITORS OF RECORD:

KEVIN MOORE                                                                           FOR THE APPLICANT

Barrister & Solicitor

Edmonton, Alberta

MORRIS ROSENBERG                                                              FOR THE RESPONDENT

Deputy Attorney General of Canada

Edmonton, Alberta