Date:
20130507
Docket:
IMM-10533-12
Citation:
2013 FC 479
Ottawa, Ontario,
May 7, 2013
PRESENT: The
Honourable Mr. Justice Harrington
BETWEEN:
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PETER RIGACS
PETERNE RIGACS
BETTINA ROZALIA
RIGACS
PETER MIHALY RIGACS
ROLAND RIGACS
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Applicants
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and
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MINISTER FOR PUBLIC
SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR
ORDER AND ORDER
[1]
Peter
Rigacs left Hungary with his family and sought protection in Canada from a loan shark. Their claim for asylum was dismissed by the Refugee Protection
Division of the Immigration and Refugee Board of Canada, and their application
for leave to judicially review that decision was denied by this Court.
[2]
What
is at issue in this judicial review is their request to an enforcement officer
to defer their removal to Hungary pending the outcome of their application for
permanent residence based on humanitarian and compassionate (H&C) grounds.
The gist of the claim is that they all suffer from high anxiety. More
particularly, the son Peter Mihaly suffers from post-traumatic stress disorder
as a result of witnessing death threats against his father.
[3]
The
enforcement officer refused to defer. He noted that the humanitarian and
compassionate application was submitted late June last year, and that the
outstanding processing time would be between 27 and 39 months. He accepted the
psychological assessment of Peter Mihaly, which was that he required long term
counselling. However, he was of the view that it was reasonable to assume that
such counselling would also be available in Hungary. Furthermore, Peter Mihaly
would not be separated from his family, as the entire family would be removed.
[4]
This
refusal was based on the previous version of section 48 of the Immigration
and Refugee Protection Act, which required an officer to remove persons “as
soon as is reasonably practicable” rather than the current version which
requires removal “as soon as possible”.
[5]
In
my opinion, the decision was reasonable, irrespective of whether I would have
come to the same conclusion, and so the application shall be dismissed.
[6]
There
has been a great deal of jurisprudence touching upon the discretion of an
enforcement officer to defer removal. Such discretion as there is has been
limited to the short term, such as a pending birth or with respect to an
outstanding H&C application which would have been resolved had it not been
for a backlog in the system. There is no such situation here. Longer term
delays relate more to personal risk of safety, and their application has already
been dismissed in that regard. There were no special considerations in this
case (Baron v Canada (Minister of Public Safety and Emergency Preparedness),
2009 FCA 81, [2010] 2 FCR 311, [2009] FCJ No 314 (QL)).
[7]
The
enforcement officer is not required, and indeed does not have the ability, to
carry out a mini H&C analysis (Baron, above).
[8]
The
law was recently reviewed by Mr. Justice O’Keefe in Ortiz v Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 18, [2012] FCJ
No 11 (QL)). That case was very similar to this one, save that the psychiatrist
was of the view that the applicant’s mental state would collapse were she to be
returned to Mexico. Nevertheless, the application was dismissed. In this case,
there is no such statement from the psychologist, and no evidence has been
provided by the applicants, the burden being on them, to establish that
appropriate psychological counselling would not be available in Hungary.
ORDER
FOR
REASONS GIVEN;
THIS
COURT ORDERS that
1.
The
application for judicial review is dismissed.
2.
There
is no serious question of general importance to certify.
“Sean Harrington”
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