Date: 20070327
Docket: IMM-1203-07
Citation: 2007 FC 325
Toronto, Ontario, March 27,
2007
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
THEODORA
BRIDGET TOBIN
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1]
This
is another motion which probes the discretion of an officer to defer removal
from Canada of a person
against whom an enforceable order has been issued.
[2]
Section
48 of the Immigration and Refugee Protection Act provides:
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48. (1) A removal order is enforceable if
it has come into force and is not stayed.
(2) If a removal order is enforceable, the
foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as is
reasonably practicable.
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48.
(1) La
mesure de renvoi est exécutoire depuis sa prise d’effet dès lors qu’elle ne
fait pas l’objet d’un sursis.
(2) L’étranger visé par la mesure de
renvoi exécutoire doit immédiatement quitter le territoire du Canada, la
mesure devant être appliquée dès que les circonstances le permettent.
|
[3]
Ms.
Tobin came to Canada from Grenada in 1990, and has not
returned. For most of that time she has been out of status.
[4]
She
made an application for permanent residence from within Canada on humanitarian and
compassionate grounds in November 2005. That application is still being
processed.
[5]
She
also underwent a pre-removal risk assessment, which was negative, and so has
been ordered to leave the country.
[6]
Her
lawyer requested the officer to defer removal pending the outcome of her
humanitarian and compassionate application for permanent residence; because of
the current situation in Grenada and because of pressing
health issues. The officer refused. That refusal is now the subject of an
application for leave and judicial review.
[7]
In
the interim, Ms. Tobin seeks a stay of that removal order. It is well
established that in order to succeed she must establish that there is a serious
issue in the underlying application, irreparable harm and that the balance of
convenience favours her (Toth v. Canada (Minister of Employment and
Immigration) (1988), 86 N.R. 302 (FCA)).
[8]
For
the purposes of disposing of this motion, it is not necessary to consider, one
way or another, whether the H&C application was sufficiently timely to
engage the officer’s discretion (Simoes v. Canada (Minister of Citizenship
and Immigration), [2000] F.C.J. No. 936 (QL)) or to consider the situation
in Grenada, particularly in the
aftermath of Hurricane Ivan.
[9]
I am
satisfied that Ms. Tobin has pressing health issues which were not properly
considered by the enforcement officer.
[10]
Ms.
Tobin suffers from glaucoma that severally limits her vision. Although she is
out of status and does not benefit from Medicare, she has some insurance from
her employer and a community health centre has helped out financially. She had
an operation on her right eye in 2005 and her doctor tells her that she needs
an operation on her left eye in the very near future. She is concerned that if
she is removed from Grenada she will no longer be able to afford the operation,
and indeed it is unclear, even if she could afford it, if such an operation is
available in that country.
[11]
The
enforcement officer said he consulted with the Medical Officer in Ottawa who confirmed that Ms.
Tobin was able to fly. The enforcement officer went on to say that the doctor
“indicated that basic medical care is available in Grenada. Moreover, eye surgery
is available in Trinidad
and Tobago
if it cannot be undertaken in Grenada.”
[12]
It
was not suggested that Trinidad
and Tobago
has any obligation to treat Grenadian citizens. All that can be said is that Trinidad and Tobago is close by
geographically. If eye surgery is available there, it is also available in
Canada, the United
States and
any number of other countries.
[13]
A
serious is thus raised. In Prasad v. Canada (Minister of Citizenship and
Immigration), 2003 FCT 614, Mr. Justice Russell pointed out that this Court
has not been entirely consistent in ranking the relevant factors which may
press upon the officer’s discretion under section 48 of IRPA. He concluded at
paragraph 32:
In
summary, the cases appear to suggest that the discretion under section 48
allows the officer to consider the circumstances directly affecting travel
arrangements, but her inquiry is not restricted to that. She also has to
consider other special circumstances of the case. On the one hand, the
mere existence of a pending H & C application does not warrant a deferral
of removal; nor is it the enforcement officer's job to evaluate the merits of
an H & C application. On the other hand, a failure to consider compelling
individual circumstances, such as personal safety or health issues, may
constitute an unlawful fettering of the officer's discretion.
[14]
More
recently, Prasad and other decisions were cited by Mr. Justice O’Reilly
in Ramada v. Canada (Solicitor General), 2005 FC 1112, [2005]
F.C.J. No. 1384 where he stated at paragraph 3:
Enforcement
officers have a limited discretion to defer the removal of persons who have
been ordered to leave Canada. Generally speaking, officers have an
obligation to remove persons as soon as reasonably practicable (s. 48(2), Immigration
and Refugee Protection Act, S.C. 2001, c. 27; set out in the attached
Annex). However, consistent with that duty, officers can consider whether there
are good reasons to delay removal. Valid reasons may be related to the person's
ability to travel (e.g. illness or a lack of proper travel documents),
the need to accommodate other commitments (e.g. school or family
obligations), or compelling personal circumstances (e.g. humanitarian
and compassionate considerations). (See: Simoes v. Canada (Minister
of Citizenship and Immigration), [2000] F.C.J. No. 936 (T.D.) (QL), Wang
v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 682
(T.D.) (QL), Prasad v. Canada (Minister of Citizenship and
Immigration), [2003] F.C.J. No. 805 (T.D.) (QL); Padda v. Canada
(Minister of Citizenship and Immigration), [2003] F.C.J. No. 1353 (F.C.)
(QL)). It is clear, however, that the mere fact that a person has an
outstanding application for humanitarian and compassionate relief is not a
sufficient ground to defer removal. On the other hand, an officer must consider
whether exigent personal circumstances, particularly those involving children,
justify delay.
[15]
The
risk of irreparable harm Ms. Tobin faces is that without treatment she may
become functionally sightless.
[16]
The
balance of convenience also favours her. As stated by Mr. Justice Beetz in Manitoba (Attorney General) v.
Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110, the Court must determine “which
of the two parties will suffer the greater harm from the granting or refusal of
an interlocutory stay pending a decision on the merits.”
ORDER
THIS COURT
ORDERS that the motion for an application for a stay of
the removal scheduled for 2 April 2007 is granted until final determination of the
underlying application for leave and for judicial review.
“Sean Harrington”
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