Prasad v. Canada (Minister of Citizenship and Immigration), 2003 FCT 614

Date: 20030516

Docket: IMM-2810-02

Citation: 2003 FCT 614

Ottawa, Ontario, this 16^th day of May, 2003

PRESENT:      The Honourable Mr Justice James Russell

BETWEEN:

                                                                RAJINESH PRASAD

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review of the decision by Ms. Laura Dobson of the Greater Toronto Enforcement Centre (the "Enforcement Officer" or the "Officer") dated June 17, 2002, in which she denied the request of Mr. Rajinesh Prasad (the "Applicant") to defer his removal from Canada pursuant to a removal order issued earlier (the "Removal Order").

[2]                 Pending the outcome of this judicial review application, the Applicant's removal, initially scheduled for June 21, 2002, was stayed by Pinard J. on June 20, 2002. Subsequently, on January 22, 2003, Heneghan J. granted leave for this application to proceed to a hearing on the merits.

Facts

[3]                 The Applicant is a 25 year old citizen of Fiji. He came to Canada as a visitor on September 29, 1998. In April 1999, he claimed refugee status.

[4]                 In October 1999, the Respondent issued a conditional departure order against the Applicant, not to become effective or enforceable unless and until a final negative determination was made on the Applicant's refugee claim. The Applicant did not challenge the validity of the departure order.

[5]                 In November 2000, the Applicant was severely injured in a workplace accident in Toronto. His right hand was crushed and, as a result, two of his fingers were amputated and two other fingers were fractured. The Applicant has had four surgeries on his right hand. He attends physical therapy on a regular basis and is being trained to use prosthetic devices. He also attends psychotherapy in order to overcome the related psychological trauma.

[6]                 In February 2001, the Convention Refugee Determination Division (the "CRDD") determined that the Applicant was not a Convention refugee. The Applicant applied for leave and judicial review of that decision.

[7]                 Since April 2001, the Applicant has been living in a common-law relationship with a Canadian citizen.

[8]                 In June 2001, this Court denied leave to review the negative CRDD decision. At that point, the conditional departure order became effective. When the Applicant failed to leave Canada voluntarily within the prescribed 30 days, the departure order became a deportation order by operation of law.

[9]                 From June 16, 2001, the Applicant maintained communication with the Enforcement Officer regarding his removal. For a few months, the Enforcement Officer monitored the situation with the Applicant's medical treatment and deferred the removal arrangements accordingly.

[10]            In August 2001, the Applicant submitted to a case processing centre in Canada, an application for reinstatement of his visitor visa on humanitarian and compassionate grounds (the "H & C application").

[11]            On May 12, 2002, the Applicant and his common-law spouse had a religious wedding ceremony. They are, however, still waiting for her divorce to be finalized before they can be legally married.

[12]            On June 7, 2002, the Applicant was required to report for removal from Canada on June 21, 2002. The Applicant requested that the removal be deferred. Following an exchange of oral and written communications between the Applicant's counsel and the Enforcement Officer, on June 17, 2002, the Officer denied the Applicant's request to defer. That decision is the subject of this judicial review application.

[13]            On June 20, 2002, Pinard J. stayed the Applicant's removal pending the outcome of this application for judicial review.

[14]            On June 28, 2002, the new Immigration and Refugee Protection Act , S.C. 2001, c. 27 (the "IRPA" or the "Act") came into force. Unlike the former Immigration Act, it recognizes sponsorship by common-law spouses. In July 2002, the Applicant added his common-law spouse's sponsorship application as an H & C ground under section 25 of the new Act, turning his H & C application into an application for permanent residence.

[15]            On January 22, 2003, Heneghan J. granted leave for this application to proceed to a hearing on the merits. The Applicant's H & C application is still pending.

Applicant's Submissions

[16]            The Applicant submits that the refusal of the Enforcement Officer to defer removal is reviewable for various reasons:

1.         The Officer ignored or failed to appreciate the full implications of the medical evidence adduced by the Applicant concerning the Applicant's work-related injuries and made patently unreasonable findings of fact with regard to the Applicant's current therapy patterns and future treatment needs. The evidence was that the Applicant was undergoing extensive treatment and care, including physical therapy, psychotherapy and prosthetic adjustment. If the Applicant were to be removed back to Fiji, his treatment would be lost and, because the Applicant could not avail himself of the required medical services in Fiji, his whole future would be jeopardized. He would face a lifetime of penury in the margins of society.

2.         The Officer unreasonably refused to defer removal in a situation where, at the time of the decision, the Applicant's H & C application had been outstanding for approximately ten months. At the time of this hearing, the H & C application had still not been dealt with.

3.         The Officer unreasonably refused to defer removal in a situation where the Applicant was expected to act as the key witness in the Crown's action against his former employer under the Occupational Health and Safety Act.

Respondent's Submissions             

[17]            The Respondent points out that the Officer in this case was dealing with a valid and enforceable removal order. Under section 48 of the IRPA, the Officer has an obligation to execute a removal order "as soon as reasonably practicable." While it has been recognized in the jurisprudence that enforcement officers do have some discretion in making decisions under section 48, the scope of such discretion is very limited.

[18]            According to the Respondent, the discretion is restricted to "when" the removal order should be executed. The only relevant factors, therefore, are those directly related to travel arrangements. The Officer has to consider the Applicant's physical ability to travel, the availability of required travel documents, the practicability of certain travel routes and schedules. The Officer should also consider whether the Applicant is under a court order requiring his presence in Canada. However, the fact that there is a pending H & C application does not constitute adequate grounds to defer removal. Nor is the Enforcement Officer under a duty to engage in any substantive determinations on H & C grounds.

[19]            The Respondent further submits that, in this case, the Officer did adequately consider all the relevant evidence. Based on a letter from the Workplace Safety and Insurance Board, the Officer determined that the Applicant's physical condition would "plateau" in July 2002. Likewise, the Officer determined on the basis of the documents available that the Applicant's prosthetic rehabilitation program was almost completed, that the Applicant was only attending psychotherapy once a month, and that therapy would possibly still be available to him in Fiji. The Officer also noted that the Applicant, while expected to be a witness in his employer's prosecution, had not been subpoenaed yet, and it remained unclear whether the case would proceed to trial or how necessary the Applicant's testimony would be.

[20]            As a result, the Officer, who had already deferred removal on previous occasions, concluded that she had given the Applicant enough time to take care of his problems. The Respondent maintains that the Officer's factual determinations are reasonable and should not be disturbed by this Court in a situation where the Officer has a broad discretion and a statutory duty to remove the Applicant from Canada "as soon as reasonably practicable."

Issues

[21]            1.         What is the content of an enforcement officer's duty, the scope of her discretion,

and the relevant factors for her to consider, in determining whether to defer the execution of a valid and effective removal order?

2. Did the Officer make a reviewable error by misinterpreting the scope of her duty, or by basing her decision on erroneous findings of fact made in a perverse or capricious manner, or by failing to consider matters relevant to her decision?

Analysis

The Enforcement Officer's Duty and Discretion

[22]            The execution of removal orders is governed by section 48 of the IRPA, which provides as follows:

[23]            The content of the Officer's duty and the scope of her discretion under section 48 have been discussed extensively in jurisprudence of this Court. Multiple cases are cited by the parties, but the case law does not provide a definitive pronouncement on the meaning of the words "as soon as reasonably practicable" or an exhaustive list of factors that should or should not be considered by the Officer.

[24]            With regard to the relevance of various factors, and H & C applications in particular, views at the Trial Division have not been entirely consistent. In Poyanipur v. Canada (Minister of Citizenship and Immigration) (1995), 116 F.T.R. 4, Simpson J. suggested at paragraph 9, that pending H & C applications may be relevant to the assessment of whether immediate removal is "reasonably practicable", and the enforcement officer would unlawfully fetter her discretion in refusing to consider them:

... In my view, this language [of s. 48] covers a broad range of circumstances which might include a consideration of whether it would be reasonable to await a pending decision on a H & C application before removal.

[25]            On the other hand, in Pavalaki v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 338 (QL) (T.D.), Reed J. found that the enforcement officer's discretion should be limited to considering the circumstances related to removal arrangements, and should not extend to matters more appropriately falling within the ambit of an H & C application.

[26]            In Simoës v. Canada (Minister of Citizenship and Immigration) (2000), 7 Imm. L.R. (3d) 141 (F.C.T.D.), Nadon J. stated his view of the issue as follows at paragraph 12:

In my opinion, the discretion that a removal officer may exercise is very limited, and in any case, is restricted to when a removal order will be executed. In deciding when it is "reasonably practicable" for a removal order to be executed, a removal officer may consider various factors such as illness, other impediments to travelling, and pending H & C applications that were brought on a timely basis but have yet to be resolved due to backlogs in the system. [Emphasis added]

[27]            In Wang v. Canada (Minister of Citizenship and Immigration), 2001 FCT 148, Pelletier J. carefully analyzed the pre-existing jurisprudence and noted at paragraph 30:

These cases illustrate the range of the discretion which has been attributed to removal officers, but they do not suggest an organizing principle which might inform the Court's review of the exercise of this discretion. [Emphasis added]

[28]            Pelletier J. further elaborated on his own approach at paragraph 44:

Obviously, there is a range of factors arising from the mechanics of making travel arrangements which will require the exercise of some judgment and discretion. The vagaries of airline schedules, the uncertainties related to the issuance of travel documents, medical conditions affecting the ability to travel, these are all factors which could result in removal being rescheduled. Beyond that are factors outside the narrow compass of travel arrangements but which are affected by those arrangements such as children's school years, pending births or deaths. These too could influence the timing of removal. These arise even on the narrowest reading of section 48 of the Act. [Emphasis added]

[29]            According to Pelletier J. at paragraph 45, the imperative terms of section 48 make it clear that, where a removal order is valid and effective, immediate removal is the rule and deferral is an exception:

The order whose deferral is in issue is a mandatory order which the Minister is bound by law to execute. The exercise of deferral requires justification for failing to obey a positive obligation imposed by statute. That justification must be found in the statute or in some other legal obligation imposed on the Minister which is of sufficient importance to relieve the Minister from compliance with section 48 of the Act.

[30]            As Nadon J. noted in Simoës, supra, at paragraph 11, an enforcement officer is not required to undertake a "substantive review" of H & C considerations:

... This is clearly within the mandate of an H & C officer. To "read in" such a mandate at the removals stage would, in effect, result in a "pre H & C" application, which in my opinion, is not what the law requires.

[31]            Likewise, in Wang, supra, Pelletier J. at paragraph 45 came to the conclusion that "absent special considerations, an H & C application which is not based upon a threat to personal safety would not justify deferral." [Emphasis added].

[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.

Application to the Case at Bar

The Officer's Interpretation of the Law

[33]            The Officer explained the reasons for her decision in Notes to File.

[34]            The Officer did not take a position that her duty is limited to assessing the practicality of travel arrangements. She did not fetter her discretion by refusing to consider the Applicant's personal circumstances, including health issues, family situation, and the prospect of serving as a witness. She did give consideration to all these matters. In fact, she had previously deferred the Applicant's removal on health grounds.

[35]            The Officer certainly did not pretend to perform a substantive evaluation of the H & C application on the merits. In her reasons, she mentions having considered the existence of a pending H & C application and having dismissed it as a ground for deferral because it could not override her duty under section 48 to execute the removal as soon as reasonably practicable.

[36]            So the Officer did not misinterpret the law or misunderstand the content of her duty under section 48 of the Act. She considered what she was required to consider, keeping in mind the scope of her discretion. Her errors arise from the way she applied the law to the facts before her.

Testimony in Proceedings

[37]            With regard to the Applicant being the main witness in the prosecution of his former employer, the Officer noted that it was not a good reason to defer the removal, because the matter had not yet proceeded to trial, and the Applicant had not been subpoenaed to testify.

[38]            The Respondent submits that the Officer's conclusion was reasonable, in the absence of any clear evidence that the Applicant's presence in Canada would be crucial to the case. It was not even clear whether a trial would be necessary. Further, the Applicant could possibly provide evidence from outside of Canada. I agree that this matter, on its own, would not constitute compelling grounds to defer the Applicant's removal, and that the Officer's decision was reasonable in this respect.

Common-Law Relationship

[39]            With regard to the Applicant's family situation, the Officer stated that it was the first time she had heard of the Applicant's common law relationship with a Canadian citizen. Apparently, it made the Officer a little suspicious that the Applicant had never mentioned it before, considering that he had been residing with his spouse since April 2001, and that they had a religious wedding ceremony in May 2002.

[40]            The Officer further noted that, according to the evidence, the Applicant had been residing with his spouse since December 2001 (rather than April), and that the relationship therefore did not meet the definition of a common-law relationship, as one year of joint residence had not been accumulated.

[41]            It is unnecessary, in my opinion, to explore these findings, as they are immaterial to the outcome of this case. Whether the Applicant and his spouse began residing together in April or in December 2001, and whether they formally qualified as common-law spouses, could be relevant to the issue of sponsorship and to a determination of the H & C application. The relationship, however, could hardly affect the issue of removal.

[42]            It has been a prevailing view in the jurisprudence of this Court that separation from one's spouse, in and of itself, does not constitute sufficient grounds to defer removal. Rather, an adequate remedy for the immigrant consists in returning to Canada if and when his H & C application, or his spouse's sponsorship, is approved. So, in this regard, the Officer did not err.

Psychotherapy            

[43]            With regard to psychotherapy, the Officer considered the letter from Dr. Posner of the Humber River Regional Hospital. The letter stated that the Applicant was undergoing therapy for post-traumatic stress disorder and major depression resulting from his injury.

[44]            The Officer noticed from the attendance log that the Applicant was only seeing Dr. Posner once a month, whereas in a phone conversation the Applicant had indicated that he was attending therapy every day. As the Applicant explains in his written submissions, the phone conversation referred to physical therapy, which he was receiving at Toronto Western Hospital on a daily basis. It appears that the Officer was indeed confused. She may have realized that he was receiving both physical and psychotherapy, but appears not to have appreciated that he was having physical therapy every day and that her decision would totally deprive him of the intensity of treatment he needed.

[45]            The Officer further noted that Dr. Posner expressed concerns about the Applicant's removal to Fiji, because psychotherapy "is not very available" there. From that statement, the Officer inferred that psychotherapy would be "indeed available." That inference is a good example of "perverse and capricious" reasoning. The Respondent takes the position that Dr. Posner was not in a position to give evidence on the availability of treatment in Fiji, so that his letter should be given little weight in this regard. But the Officer's reading of Dr. Posner's words was not that he lacked the knowledge to make them (even if this was accepted) but, rather, that he was indicating that treatment would be available in Fiji, and this notwithstanding that Dr. Posner said the following:

I understand that he may be transferred back to Fiji. If this were to happen, he would have no means for paying for medication. The psychotherapy is not very available. His family in Fiji is also without funds to finance his treatments. In the event that treatments were discontinued at this point, I would expect a drastic and rapid deterioration in his mental health and ability to function. His prognosis would be very poor.

To infer from these words that psychotherapy for the Applicant was indeed available in Fiji was a reviewable error.

[46]            The Officer does not discuss potential effects of depriving the Applicant of the benefits of psychotherapy. Generally speaking, ongoing psychotherapy may not at all be a valid ground to defer removal. In this case, however, psychotherapy was required as a means of rehabilitation from a severe physical injury. Dr. Posner stated in his letter: "In the event that treatments were discontinued at this point, I would expect a drastic and rapid deterioration of his mental health and ability to function. His prognosis would be very poor." The Officer left those concerns without comment.

[47]            The Respondent argues that the Officer's judgment in the matters of psychotherapy is based on weighing the evidence and is a pure finding of fact which should not be disturbed by this Court. In my view, the Officer made unwarranted factual inferences and failed to afford these matters the thorough and careful consideration that they deserved. Those inferences were perverse and that alone would justify overturning the Officer's decision.

Physical Therapy and Prostheses

[48]            The major reason for deferring the Applicant's removal was certainly the medical treatment and care he was receiving for the purpose of overcoming the physical consequences of his injury. This matter was raised before the Enforcement Officer.

[49]            In a lengthy paragraph in her notes, the Officer lists the previous deferrals granted to the Applicant, and concludes as follows:

... Considering the fact that almost one year has elapsed since my initial interview with Mr. Prasad it is my opinion that I have given Mr. Prasad enough time to look after his injured hand.

[50]            The record does not disclose any evidence that would support a conclusion that the course of physical therapy required for the Applicant's rehabilitation from his injury had been completed. On the contrary, the letter from Toronto Western Hospital dated June 6, 2002, which the Officer definitely had before her because it is mentioned in her reasons, states as follows:

Mr. Prasad is currently in the mid to final stages of the program... It is anticipated that he will continue on a full time basis over the next two months followed by a graduated decrease in his days and hours as he moves on to the next stage of his rehabilitation...

[51]            Likewise, the letter mentions that, although the Applicant had received his first set of aesthetic prostheses in April 2002, it was "anticipated that he will be seen again for a back up set" and that the "next appropriate time" for seeing the Applicant for that purpose would be September 2002.

[52]            After reading this letter, the Officer concluded that the Applicant had had "enough time to look after his injured hand." This is another instance of a perverse conclusion that bears no relationship to the evidence before the Officer.

[53]            Another document before the Officer was a letter from the Workplace Safety and Insurance Board. The letter states, inter alia, as follows:

Medical information indicates your condition will plateau in July 2002. This coincides with the completion of your non-dominant hand training.

[54]            The author of this letter was not a doctor and his statement could not reasonably override the opinion provided by a physician from the hospital. Furthermore, even taking this letter at face value, "plateau" does not necessarily mean that no further treatment or care is required.

[55]            The Officer's conclusion that she had given the Applicant "enough time" appears to have been mainly based on "the fact that almost one year has elapsed" since the initial removal interview. In light of the medical evidence available, this conclusion was perverse and capricious.

Conclusions and Disposition

[56]            The Officer's decision was patently unreasonable and based on erroneous findings of fact made in a perverse and capricious manner and without regard for the evidence. This application for judicial review is allowed, and the Officer's decision is quashed.

ORDER

THE COURT HEREBY ORDERS THAT:

1.         The application for judicial review is allowed, the June 17, 2002, decision is set aside and the matter is remitted for reconsideration by a different Enforcement Officer.

2.         No question will be certified.

                                                                                         "James Russell"                 

                                                                                                      J.F.C.C.                     

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

DOCKET:                                              IMM-2810-02

STYLE OF CAUSE:                           RAJINESH PRASAD    v. MCI

DATE OF HEARING:                         April 22, 2003

PLACE OF HEARING:                       Toronto, Ontario.

REASONS FOR ORDER BY:             Justice James Russell

DATED:                                                   May 16, 2003

APPEARANCES BY:                         Ms. Robin Seligman

                                                                                                                     For the Applicant

                                                                 Mr. Brad Gotkin

                                                                                                                     For the Respondent

SOLICITORS OF RECORD:          

Ms. Robin Seligman

30 St. Clair Avenue West

10^th Floor

Toronto, Ontario

M4V 3A1

FOR THE APPLICANT

Mr. Brad Gotkin

Department of Justice

Ontario Regional Office

The Exchange Tower

130 King Street West

Suite 3400, Box 36

Toronto ON

            M5X 1K6

FOR THE RESPONDENT

FEDERAL COURT OF CANADA

Date:20030516

   Docket: IMM-2810-02

BETWEEN:

RAJINESH PRASAD

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                     Respondent

REASONS FOR ORDER