Docket: IMM-5187-13
Citation: 2014 FC 1178
Ottawa, Ontario, December 8, 2014
PRESENT: The Honourable Madam Justice McVeigh
BETWEEN:
NANCY GONZALEZ GONZALEZ
REGYNA MIRANDA VARGAS GONZALEZ (by her litigation guardian)
Applicants
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
JUDGMENT & REASONS
[1]
This is an application to set aside a decision
by a Canada Border Services Agency officer (the “Officer”), who under section
48 of the Immigration and Refugee Protection Act, 2001, c 27 (the “IRPA”),
refused to defer removal of the Applicants to Mexico pending determination by
the Minister of Citizenship and Immigration of their application for
humanitarian and compassionate (“H&C”) relief under section 25 of the IRPA.
[2]
This is a story of a mother and her disabled
daughter and Canadian born infant being returned to Mexico. Her disabled
daughter’s ability to access health care is the central factor in this case.
I.
Background
[3]
The Officer refused to grant a deferral of the
Applicants removal order to Mexico until the outcome of a pending H&C
application.
[4]
The Applicants’ efforts to remain in Canada are extensive and have occurred over years with the court’s frequent involvement. The
minor applicant, Regyna, and her mother, Nancy Gonzalez, are citizens of Mexico who arrived in Canada on January 16, 2009. Her infant sister, 7 month old Hanna, is a citizen
of Canada. Nancy Gonzalez made a Convention refugee claim because of domestic
violence but the application was denied. Subsequently the Applicants’ Pre-Removal
Risk Assessment (“PRRA”) and H&C were also rejected in June 2010 and
November 2011.
[5]
The Applicants filed a fresh H&C with new
evidence in April 2012, alleging the first H&C was mishandled by the
immigration consultant. The second H&C application is still pending.
[6]
Concurrent to this, the Applicants requested a
deferral of their removal scheduled for July 2012. The deferral was denied but
the judicial review application of that decision was allowed by Mr. Justice
O’Keefe and the request for deferral was returned for reconsideration. The
deferral of removal was denied again on August 12, 2013, and the present
application is a judicial review of that denial. Mr. Justice Manson ordered a
stay of the removal order on August 14, 2013, until the outcome of the present
judicial review application.
[7]
Seven year old Regyna suffers from multiple
severely debilitating conditions that require constant care. She has been
diagnosed with cerebral palsy, severe global developmental delay, static
encephalopathy, and sensorineural hearing loss. Because of these conditions,
Regyna has severe motor impairment, cannot sit independently, has poor head
control and is non-verbal.
[8]
The Applicants submitted numerous medical
opinions attesting to Regyna’s serious medical conditions and evidence about
the specialized type of instruction she received at school. Regyna attends a
nutritional clinic, feeding therapy clinic, neurology clinic, and audiology
clinic. The CIC Health Management Branch also provided opinions on Regyna’s
conditions based on the medical evidence provided. The Health Management Branch
opinion indicated that the services of neurologists, paediatricians, and
occupational therapists are available in Mexico as well as special education
and well-equipped pharmacies.
II.
Issue
[9]
Was the decision of the Officer to refuse the Applicants’
deferral of removal application reasonable per Dunsmuir v New Brunswick,
2008 SCC 9?
III.
Analysis
[10]
Two arguments are advanced in support of setting
aside the decision of the removal Officer.
[11]
The first argument is that the decision was
unreasonable in that it took into account that there may be medical treatment
available for Regyna if she returned to Mexico, but erred by concentrating on
the availability of services and not how accessible they would be given the
manner the Mexican healthcare system addresses the needs of physically or mentally
handicapped children.
[12]
The second argument is that the decision did not
fairly account for their pending, second, H&C application filed.
A.
Medical Treatment
[13]
The Applicants argue that the Officer should
have assessed the “access v. availability” issue for the Mexican health care
system because that is a short term consideration for the Officer whereas the
long term question of how Regyna might overcome barriers to accessing care are
properly assessed by the H&C officer.
[14]
The Applicants’ submitted a large volume of
documentation impugning the Mexican healthcare system as not being able to
properly care for Regyna because of Mexico’s lack of resources and the approach
to the issue.
[15]
The Officer without the expertise to assess the
availability of healthcare in Mexico, asked the Senior Medical Officer, Health
Management Branch, to review the documentation. In response, the Senior Medical
Officer advised that there was medical care available for the needs of Regyna
and that she could travel by air.
[16]
The Applicants argue that the Officer erred by
not assessing the documentary evidence provided by the Applicants themselves
regarding the healthcare in Mexico, but instead they sought the opinion of CIC Health
Management Branch. The submissions of the applicant is that the Officer “weighing of these repeated opinions that state, without
reasoning, that care is available against volumes of evidence indicating that
care will not be immediately accessible, and the reliance on the opinion that
Regyna is fit to fly” is a reviewable error.
[17]
The Applicants disagree with the Senior Medical
Officer’s assessment of the evidence.
[18]
I will not re-weigh the Senior Medical Officer’s
evidence even though the Applicants do not agree with him. The Officer relying
on the CIC Health Management Branch advice is not an error as it was beyond her
expertise.
[19]
The Officer found that the issues raised mirror
what was raised in the RPD and PRRA process and refused to defer removal.
B.
Pending H&C application
[20]
The second ground on which it is said that the
Officer's decision should be set aside, namely the pending H&C application,
has no merit. The Officer observed that the factors advanced in the pending
H&C application were similar to those advanced in the first H & C. The Applicants
contend that the first H&C application was inadequately prepared.
[21]
The Respondent argued that the Officer
determining that the second H&C application was not imminent so it was inappropriate
to defer. The second H&C was submitted in April 2012 and the deferral was
considered August 12, 2013, but as late as July 22, 2013 the Applicants submitted
140 more pages in material.
[22]
In this regard, the observations of Mr. Justice
Zinn in Jonas v Canada (Citizenship and Immigration), 2010 FC 273 at para
21 are directly apposite:
In this case, the officer did consider the
existence of the pending H&C application and it was open to the officer to
consider the imminence of a decision in the pending H&C application. In
many cases, the imminence of a decision may be a reflection of whether the
application had been filed in a timely manner. In this case, the officer does
not indicate whether, in his view, the H&C application was filed in a
timely manner; however, it is of note that the applicant did not file it until
almost five years after the rejection of his refugee claim by the RPD. The
officer concluded that a decision was not imminent even though the application
had been transferred to the local CIC Office. The officer's determination that
the pending H&C application did not warrant his exercise of discretion was
reasonable.
[23]
The case law is clear that the existence of a
pending H&C application does not, absent special circumstances, warrant a
deferral. The Federal Court of Appeal made it clear, in Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 at para 49,
that the boundaries of an enforcement officer's discretion are narrow and
circumscribed. The Court of Appeal notes that if applicants are successful in
their H&C application, they can be made whole by readmission.
[24]
The weight to be assigned to a pending H&C
application is a matter of discretion when the officer is aware of the H&C
application (Khamis v Canada (Citizenship and Immigration), 2010 FC 437
at para 29).
[25]
In this case, given the Applicants’ lengthy
immigration history, and the delay between the refusal of the first H&C and
the initiation of the second H&C makes the decision before me of the
Officer not to defer by reason of the pending H&C, justifiable and
reasonable.
[26]
In sum, I cannot conclude that the decision is
unreasonable. The Officer applied the correct test, considered all of the
evidence and submissions of the Applicants and rendered a decision that falls “within the range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47). There is no reviewable
error.
[27]
The application for judicial review is
dismissed.
[28]
No question for certification has been proposed
and none arises.
THIS COURT’S JUDGMENT is that:
1.
The application is dismissed;
2.
No question for certification has been proposed
and none arises.
"Glennys L. McVeigh"
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