Date:
20121204
Docket:
IMM-2801-12
Citation:
2012 FC 1413
Ottawa, Ontario,
December 4, 2012
PRESENT: The
Honourable Mr. Justice Barnes
BETWEEN:
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LEOKADIA JODLOWSKA
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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
[1]
This
is an application by Leokadia Jodlowska challenging a decision by a Removals
Officer (Officer) whereby her request for a deferral of removal was denied.
That decision was stayed by the Order of Justice Elizabeth Heneghan on March
23, 2012 and the matter was heard on the merits at Toronto, Ontario on November
20, 2012.
[2]
Ms.
Jodlowska is a 77 year old citizen of Poland of Roma ethnicity. She has been
living in Canada for eleven years. She suffers from a number of chronic but non
life threatening medical problems, most notably the onset of dementia. She
presently lives with her daughter and son-in-law, who assist with her daily
needs.
[3]
Ms.
Jodlowska’s claim for a deferral was based on her medical circumstances and her
Roma ethnicity. It was contended that, because of her deteriorating health and
the discrimination she would face as an elderly Roma, she would not be able to
cope in Poland without the assistance of her family. She argued that her
removal ought to be deferred until a recently submitted Humanitarian and
Compassionate (H&C) application was determined.
[4]
The
Officer declined to defer removal. He noted that Ms. Jodlowska’s pending
H&C application would not be rendered moot by her return to Poland and that no decision on that application was imminent.
[5]
The
Officer also took note of Ms. Jodlowska’s medical condition. After speaking
with the family physician he was told that she was physically fit to fly but
would need assistance en route. Arrangements were accordingly made for two
officers to accompany Ms. Jodlowska on her return flight to Poland. Advice from a Senior Medical Officer with the Department indicated that Ms. Jodlowska’s
health problems could be adequately treated in Poland. With respect to the
other barriers to resettlement in Poland the Officer found as follows:
As stated above, I find that insufficient evidence
has been provided to demonstrate that Ms. Jodlowska would not be able to rely
on other friends, family or social and health agencies in Poland for support in the treatment of her health conditions. I note that Ms. Jodlowska has had
approximately three months to make arrangements for her return to Poland.
[6]
The
Officer also found that the risk of discrimination had already been addressed
by the Refugee Protection Division (RPD) and in a PRRA. His own authority was
“extremely limited” and did not include a reassessment of those earlier
findings.
[7]
Counsel
for Ms. Jodlowska took issue with the Officer’s finding that there was
insufficient evidence to establish that Ms. Jodlowska’s medical and daily needs
could not be met in Poland. This finding was said to be inconsistent with the
evidence that Ms. Jodlowska had no family in Poland who could assist her, and
was otherwise speculative.
[8]
It
seems to me, however, that in the context of a return to a European country an
applicant bears an evidentiary burden of establishing that medical and assisted
living needs are either unavailable or inaccessible. An applicant cannot request
a deferral from removal on the basis of an undocumented and unproven risk and
then complain that the decision-maker failed to consider the asserted barriers
to resettlement.
[9]
Here
the evidence of Ms. Jodlowska’s health status was fairly non-specific, at least
in terms of her capacity for independent living. There was no doubt that she
benefited from the care provided by her children and it was likely that she
would need some form of assistance in Poland. But the primary obligation to
look after Ms. Jodlowska rests with her family, or alternatively, with the
state. In the absence of any evidence that Ms. Jodlowska’s family or the Polish
authorities were unable or unwilling to financially support her resettlement it
was not unreasonable for the Officer to expect that one or the other would do
so. I can identify no error made by the Officer in his treatment of this issue.
The Applicant simply failed to prove that her needs cannot be met in Poland.
[10]
All
of Ms. Jodlowska’s remaining concerns would involve the reweighing of evidence.
It goes without saying that that is not the function of the Court on judicial
review.
[11]
Whether
or not there was a plausible excuse for Ms. Jodlowska’s failure to file a
timely H&C application, the fact remains that the determination of that
application was not imminent. It is also settled law and accepted by the
Officer that the H&C application could be dealt with on the merits
notwithstanding Ms. Jodlowska’s removal to Poland. Her change of residency
would not terminate the family relationships that were at the core of her claim
to relief; and if her situation in Poland turned out to be as dire as she
predicted the H&C application could be supplemented and enhanced. There is
no identifiable error in connection with the Officer’s assessment of this
issue.
[12]
The
Officer similarly did not err by discounting the evidence of possible
discrimination in Poland. It was speculative to assume that Ms. Jodlowska’s
health care needs would not be addressed because she is Roma. The Officer also
correctly noted that his authority was extremely limited and was not a
substitute for the other avenues of relief she had previously pursued. Indeed
the underlying premise to this application is that a removal officer has a
legal duty to consider all manner of circumstances and concerns when dealing
with a deferral request. This is not the case: see Baron v Canada (Minister of Citizenship and Immigration), 2009 FCA 81, [2009] FCJ no 314, and Doman v
Canada (Minister of Citizenship and Immigration), 2012 FC 435, [2012] FCJ
no 496.
[13]
For
the foregoing reasons, this application is dismissed.
[14]
Neither
party proposed a certified question and no issue of general importance arises
from these reasons.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application is dismissed.
"R.L.
Barnes"
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