Docket:
IMM-2002-13
Citation: 2013 FC 1073
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa,
Ontario, October 24, 2013
PRESENT: The Honourable Mr. Justice
Shore
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BETWEEN:
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EDUARDO GONZALEZ VELA
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
AND
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondents
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Preliminary comments
[1]
Can a weight loss
regimen be linked to a deportation date for the purpose of eligibility for a
rehabilitation treatment and prosthesis?
II. Introduction
[2]
This is an
application for judicial review brought under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], of a decision rendered on
March 14, 2013, by a Canada Border Services Agency enforcement officer, in
which he refused to grant a stay of a removal order under section 48 of
the IRPA.
III. Facts
[3]
The applicant, Eduardo
Gonzalez Vela, is a Mexican citizen, born in 1983 in Puebla, Mexico. He arrived
in Canada on September 18, 2008, and filed a claim for refugee protection.
[4]
On May 14, 2009,
the applicant was involved in a train accident and had his left foot amputated.
After his amputation, the applicant had to obtain a prosthesis for his leg.
[5]
On June 11, 2011, the
applicant underwent gastric bypass surgery in order to lose weight and obtain a
new prosthesis.
[6]
On April 10, 2012,
the Refugee Protection Division [RPD] of the Immigration and Refugee Board
rejected the applicant’s claim for refugee protection. (The applicant filed an
application for leave and judicial review of this decision, but this Court
dismissed that application on October 9, 2012.)
[7]
On May 24, 2012,
the applicant applied for an exemption based on humanitarian and compassionate
grounds [H&C application].
[8]
On December 27,
2012, the officer called in the applicant in preparation for his removal to
Mexico. It was then that the applicant first applied for a stay. The officer
refused that application on January 31, 2013.
[9]
On March 8,
2013, the applicant filed a second application for a stay of removal to allow
him to remain in the country pending the outcome of his H&C application, or
at least to allow him to meet with his prosthetist on April 30, 2013, to
have a new prosthetic leg attached.
[10]
The second
application was rejected on March 14, 2013.
IV. Decision under review
[11]
In his decision, the
officer began by noting that he would not be reviewing the allegations that the
applicant had already made in his initial application for a stay of removal. He
would only review the new elements presented by the applicant in support of his
second application.
[12]
After considering the
applicant’s new statements, the officer concluded that the applicant had still
not demonstrated any harm that would justify a stay of his removal to Mexico.
[13]
The officer noted the
following in particular:
(a)
A pending H&C
application does not justify a stay of removal;
(b)
The applicant failed
to demonstrate that he would be unable to pay for a new prosthesis or medical treatments
in Mexico;
(c)
There is no guarantee
that the applicant will receive a new prosthesis on April 30, 2013,
because he may not have lost sufficient weight by that date.
V. Issue
[14]
Was the officer’s
decision to refuse to stay the removal order against the applicant justified?
VI. Relevant legislative provisions
[15]
Section 48 of
the IRPA applies in this case:
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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 the order
must be enforced as soon as possible.
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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 exécutée dès que possible.
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VII. Standard of review
[16]
The standard of
review applicable to an enforcement officer’s decision to refuse to stay an
applicant’s removal is the standard of reasonableness (Arrechavala de Roman v
Canada (Minister of Public Safety and Emergency Preparedness), 2013 FC 478;
Turay v Canada (Minister of Public Safety and Emergency Preparedness),
2009 FC 1090; Baron v Canada (Minister of Public Safety and Emergency
Preparedness), 2009 FCA 81, [2010] 2 FCR 311).
[17]
When a decision is
reviewed on a standard of reasonableness, the analysis is concerned with “the
existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at para 47).
[18]
Accordingly, it is
only where enforcement officers “have overlooked an important factor, or
seriously misapprehended the circumstances of a person to be removed, that
their discretion should be second-guessed on judicial review” (Ramada v
Canada (Solicitor General), 2005 FC 1112 at para 7).
VIII. Parties’ positions
[19]
The applicant argues
that the officer’s decision is unreasonable because the officer completely
ignored the following evidence: the letter from Dr. José Martin Morales Garcia and
the estimate from the Ortho Tech company. The applicant alleges that this
evidence confirms that the cost of a new prosthesis in Mexico would cause him
irreparable harm.
[20]
The applicant also
characterizes as unreasonable the officer’s finding that there was no guarantee
that he would lose sufficient weight by April 30, 2013, to be able to
obtain a new prosthesis.
[21]
The respondent
submits that the officer took all of the evidence and the applicant’s
allegations into consideration and reasonably concluded that there were no
impediments to his removal to Mexico.
[22]
The respondent
submits that the officer reasonably found that there was no proof that the
applicant would have lost sufficient weight to ensure that his new prosthesis
would be ordered on April 30, 2013.
[23]
The respondent also
submits that the high cost of medical care in other countries does not
constitute irreparable harm and is not an impediment to the applicant’s removal
(Singh v Canada (Minister of Citizenship and Immigration), 2005 FC 909; Kunni
v Canada (Minister of Citizenship and Immigration), 2004 FC 212).
IX. Analysis
Preliminary issue
[24]
The Court agrees with
the respondent that the review of the officer’s decision must be based on the
evidence that was before him. The applicant may not add evidence to complete
his record at the judicial review stage. Accordingly, the Court excludes the
evidence relating to the applicant’s marriage and his wife’s status.
Was the officer’s decision to refuse to stay the removal
order against the applicant justified?
[25]
It is well established
that, in order to obtain a stay of his removal, the applicant must demonstrate,
firstly, that there is a serious issue to be tried; secondly, that he would
suffer irreparable harm if no stay were ordered; and, thirdly, that the balance
of convenience considering the applicant’s total situation favours the order (Toth
v Canada (Minister of Employment and Immigration) (1988), 86 NR 302 (FCA)).
To succeed, an applicant must meet all three criteria.
[26]
In this case, the
Court finds that the applicant has not raised a serious issue that could
provide a basis for a stay of removal.
[27]
First, the Court cannot
accept the applicant’s claim that the officer failed to take into account
relevant evidence, in particular, the letter from Dr. José Martin Morales
Garcia and the estimate from the Ortho Tech company. The officer expressly
noted the following in his initial decision letter:
Mr. Gonzalez Vela has
submitted multiple documents concerning his medical file as well as his request
for Humanitarian and Compassionate grounds. I scanned the documents and sent
them for medical expertise to our medical department at Citizenship and
Immigration Canada. Below you will find an excerpt of the response from
Citizenship and Immigration Canada:
We have reviewed the medical material submitted on this client.
The client wears a prosthesis after receiving amputation of the left foot
in June 2009. He also received a gastric bypass surgery. He is fully functional
and works actively.
The medical services for patients with prosthesis (orthopedist,
occupational therapist, prostesists, physiotherapist) are all available in his
home country Mexico, as well as gastroenterologists, surgeons, nutritionists
and psychologists.
There are no special medical recommendations for his
travel.
Thank you.
After the evaluation from medical officer from Citizenship and Immigration
Canada and a complete revision of Mr. Gonzalez
Vela file, I have concluded that the circumstances of this case do not
grant any delay or deferral of this removal.
(Certified Tribunal Record [CTR] at p 25)
[28]
The Court is
satisfied that, in rendering his second decision, the officer properly
considered this evidence, as well as the applicant’s capacity to work to pay
for his medical treatments. Based on this evidence, the officer found that the
applicant’s circumstances would not impede his return to Mexico.
[29]
While it may be that
the cost of a prosthesis and medical care is higher in Mexico, the Court agrees
with the respondent that this does not in itself constitute irreparable harm (see
Singh, above, at para 14). The officer did not err in finding that there
was no impediment to the applicant’s return to Mexico. The applicant already
had a prosthesis, he was fully functional and he worked actively
(CTR at pp 20 and 30). Furthermore, there is no evidence in the record that the
applicant would be unable to return to Canada to have his prosthesis attached
or to have it attached in Mexico.
[30]
Nor can the Court
accept the applicant’s second allegation that the officer’s conclusion regarding
the applicant’s weight loss was unreasonable. As the Court of Appeal held in Baron,
above, it is well established that an enforcement officer’s discretion is
limited. Although enforcement officers have the discretion to set new removal
dates in specific circumstances, they cannot postpone a removal indefinitely
(Baron at para 80).
[31]
In this case, the
time it would take to resolve the applicant’s H&C application and have his
prosthesis attached was unknown. According to the evidence in the record, it was
unlikely that the prosthesis would be attached imminently (before
April 30, 2013) because the applicant still had a significant amount of
weight to lose (CTR at p 20). The Court finds that it was not open to the
officer to stay the applicant’s removal in the circumstances and that he
reasonably concluded that he could not postpone the date beyond April 30, 2013. Therefore,
the Court finds that the applicant has not raised a serious issue regarding the
way in which the officer exercised his discretion in this case. The Court also
notes that the applicant has failed to demonstrate that he would suffer irreparable
harm in the event of his removal to Mexico.
[32]
It is therefore clear
in this case that, given the absence of a serious issue and irreparable harm, there
is a public interest in proceeding with the removal in order to maintain the
integrity of the system (Membreno-Garcia v Canada (Minister of Employment
and Immigration), [1992] 3 FC 306).
X. Conclusion
[33]
For all of these
reasons, the applicant’s application for judicial review is dismissed.
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