Date:
20121210
Docket:
IMM-2884-12
Citation:
2012 FC 1456
Ottawa, Ontario,
December 10, 2012
PRESENT: The
Honourable Mr. Justice O'Reilly
BETWEEN:
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ALEXEY AVERIN
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Overview
[1]
In
2007, Mr Alexey Averin arrived in Canada from Ukraine as a visitor. He applied
unsuccessfully for refugee status.
[2]
After
his refugee claim was turned down, Mr Averin experienced a series of
unfortunate events. He was involved in two car accidents leaving him with
physical limitations and mental health issues. His physicians have diagnosed
him with major depression, post-traumatic stress disorder, and a severe phobia
of being in a car. He requires many different medications. He relies on social
assistance, and his family members in Canada.
[3]
In
November 2011 Mr Averin attempted to hang himself. His neighbours saved him.
While in hospital, with his mother’s help, Mr Averin applied for a pre-removal
risk assessment (PRRA). He alleged that he would not be able to obtain or
afford proper medical treatment in Ukraine, and that there was a “grave
situation regarding the treatment of mentally ill patients” there. He filed his
medical records and documentary evidence about the availability of mental
health care in Ukraine.
[4]
The
PRRA officer dismissed Mr Averin’s application. That decision is the subject of
a separate application for judicial review (see IMM-2600-12).
[5]
Mr
Averin also asked an immigration enforcement officer to defer his removal until
his outstanding application for humanitarian and compassionate (H&C) relief
was decided. In his deferral request, Mr Averin expressed concern about the
lack of appropriate treatment, and possible mistreatment, in Ukraine. The officer dismissed Mr Averin’s request.
[6]
Mr
Averin argues that the officer failed to consider the real basis of his
request, namely that he would not have access to the medication he requires or
adequate medical treatment. The officer reviewed recent medical reports filed
by Mr Averin and concluded that Mr Averin’s condition was improving. The fact
that he has an outstanding H&C did not, on its own, justify a deferral of
removal.
[7]
Mr
Averin argues that the officer’s decision was unreasonable and he asks me to
overturn that decision and order another officer to reconsider his request.
[8]
I
agree that the officer’s decision was unreasonable and must, therefore, allow
this application for judicial review.
II. Was the Officer’s
decision unreasonable?
[9]
A
removal officer’s discretion is limited. He or she can only defer removal where
there exist compelling or exigent personal circumstances that merit a temporary
delay: Ramada v Canada (Solicitor General), 2005 FC 1112,
at para 3; Canada (Minister of Public Safety and Emergency
Preparedness) v Shpati, 2011 FCA 286, at para 43.
[10]
Mr
Averin raised a concern about whether he would have access to the medication he
requires in Ukraine. In previous correspondence with another enforcement
officer, this concern was clearly expressed and the officer requested further
details about Mr Averin’s drug regimen. In his submissions to the deciding
officer, Mr Averin noted that the previous officer had found that only one of
the several drugs Mr Averin required was available in Ukraine.
[11]
However,
the deciding officer did not address this issue and made no reference to the
evidence on the point. In my view, given the evidence before him, the officer
was obliged to consider whether the unavailability of medication for Mr Averin
presented an “exigent personal circumstance” that justified a deferral. The
mere fact that Mr Averin had an outstanding H&C application would not have
justified a deferral. But the fact that Mr Averin would not have available to
him the medication he required would have provided that justification. The
officer did not consider that issue.
[12]
In
my view, the officer’s decision was unreasonable because it did not take
account of an exigent personal circumstance facing Mr Averin. There was evidence
before the officer showing that Mr Averin may not have access to the medication
he required. The officer simply did not consider that evidence. Accordingly, I
find that the officer’s decision does not represent a defensible outcome based
on the evidence before him, and the law requiring him to consider the
applicant’s personal circumstances. Therefore, I must grant this application
for judicial review.
III. Conclusion and
Disposition
[13]
The
officer failed to consider an important issue relating to the timing of Mr
Averin’s departure from Canada. Given that failure, the officer’s decision was
unreasonable because it did not taken account of the evidence before him and
did not accord with the obligation to consider the applicant’s personal
circumstances. Accordingly, I must allow this application for judicial review
and order another officer to reconsider Mr Averin’s request.
[14]
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. The matter is referred back to
another officer for reconsideration;
2.
No
questions of general importance are stated.
“James W. O’Reilly”
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