Date: 20100311
Docket: IMM-3581-09
Citation: 2010 FC 273
Ottawa, Ontario, March 11, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
LASZLO JONAS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an application for
judicial review, pursuant to s. 72 of the Immigration and Refugee Protection
Act, R.S.C. 2001, c. 27, of an enforcement officer’s refusal to defer
removal of the applicant from Canada. For the reasons that follow, this application is
dismissed.
Background
[2]
Laszlo Jonas is a citizen of Hungary and an ethnic Roma. He is deaf, mute, unable to read and write, and apparently
suffers from some degree of developmental delay.
[3]
Mr. Jonas arrived in Canada on July 12, 2001, and immediately claimed refugee
status. The Refugee Protection Division of the Immigration and Refugee Board
denied his claim on July 22, 2003. Leave to judicially review that decision
was denied by this Court.
[4]
A sponsorship
application was initiated by Mr. Jonas’ wife on January 26, 2006. This
application was rejected on January 9, 2008, when Mr. Jonas’ spouse withdrew
her sponsorship because of their separation.
[5]
On March 4, 2008, Mr.
Jonas filed an application for permanent residence based on humanitarian and
compassionate (H&C) grounds. This application has been transferred to the
local CIC Office. It remains outstanding.
[6]
On May 16, 2008, Mr.
Jonas was given a Pre-Removal Risk Assessment (PRRA) application. This application
was rejected on April 17, 2009. He did not seek judicial review of the
negative PRRA decision.
[7]
On June 1, 2009, Mr.
Jonas sought a deferral of his removal until the final determination of his pending
H&C application. The grounds for this request were Mr. Jonas’ disabled
status and lack of appropriate care in Hungary, his pending H&C application, and the discrimination he would face
in institutionalized care in Hungary because of his Roma ethnicity and
disability.
[8]
On July 13, 2009, the enforcement
officer rejected Mr. Jonas’ request to defer removal. It is from this decision
that Mr. Jonas seeks judicial review. Mr. Jonas successfully sought a stay of
removal until 15 days after the earlier of the final determination on this
judicial review or the final determination and communication of reasons
regarding the outstanding H&C application.
Issue
[9]
The issue is whether the enforcement
officer’s decision to refuse the applicant’s request for a deferral of his removal
was reasonable.
Analysis
[10]
As a preliminary issue,
the respondent submits that the letter from Dr. Otto Veidlinger should not be
considered by the Court because it is dated after the applicant’s deferral
request and was therefore not before the officer. I agree. It was not before
the decision-maker and is not properly before this Court on a judicial review
of that decision.
[11]
The applicant submits
that the deferral should have been granted because his removal will expose him
to inhumane treatment beyond the normal consequences of removal, and because
his pending H&C application, which he submits is likely to be successful, would
render the removal order inoperative. The applicant submits that the officer’s
decision is unreasonable because the officer failed to consider the totality of
the medical evidence as well as the other evidence provided in support of the
request. The applicant contends that his situation is distinguishable from the
case of Baron v. Canada (Minister of Public Safety and Emergency Preparedness),
2009 FCA 81 because, unlike in Baron, the applicant’s disability and
lack of support will prevent him from filing an application for permanent
residence from outside Canada.
[12]
The respondent cites Baron,
supra, Simoes v. Canada (Minister of Citizenship and Immigration)
(2000), 187 F.T.R. 219 (T.D.), and Wang v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 682, for the proposition
that enforcement officers have a very limited discretion to grant a deferral of
removal. The respondent says that the circumstances of this case do not fall
within that limited discretion. The respondent submits that the doctor’s notes
on record contain inconsequential medical concerns, and that they are not
determinative of the request. It is further submitted that deferral requests
are not to be considered surrogate H&C applications and that enforcement officers
do not have the jurisdiction to consider H&C factors. The respondent submits
that it was reasonable for the officer to reject the pending H&C
application as the basis for the deferral request and that the officer
considered all the evidence and provided adequate reasons that support the
conclusion that the decision was reasonable.
[13]
Both parties agree that
deferral of removal decisions are reviewed on the reasonableness standard. Section
48(2) of the Act obligates enforcement officers to enforce removal orders “as
soon as is reasonably practicable.” Section 48 has been interpreted to grant enforcement
officers only a very limited discretion to consider requests to defer removals:
Baron, supra; Simoes, supra; Wang, supra.
[14]
In Wang,
supra at para. 48, Justice Pelletier (as he then was), held that:
…deferral
should be reserved for those applications or processes where the failure to
defer will expose the applicant to the risk of death, extreme sanction or
inhumane treatment in circumstances and where deferral might result in the
order becoming inoperative. The consequences of removal in those circumstances
cannot be made good by readmitting the person to the country following the
successful conclusion of their pending application.
[15]
The applicant argues
that he faces the prospect of inhumane treatment because of his disability if
he is returned to Hungary and that his disability will prevent him
from reapplying for permanent residence. He argues that this brings him within
the narrow exception described in Wang.
[16]
Other than stating that
the letters of support provided by the applicant were noted, the officer did
not make any express reference to the medical evidence that was submitted. A
letter from the applicant’s doctor stated:
Mr. Jonas is suffering from congenital deafness, he is
developmentally delayed. He is unable to speak, write or read. He needs
assistance regarding all aspects of activities of daily living. He cannot be
rehabilitated…. Mr. Jonas needs constant supervision due to his complex
medical condition and his mother is the only person who can provide this to
him. He has no other relatives and he is unable to exist without his mother’s
help.
[17]
The officer noted that
the applicant is a deaf mute, but makes no reference to him being developmentally
delayed. The officer focussed on the fact that the risk associated with the
issues raised in the deferral request had all been before the RPD and the PRRA
Officer and that both decision-makers had rejected the applicant’s arguments.
The officer further notes that the onus was on the applicant to prove on his
PRRA application that individualized risk exists, that he had an opportunity to
do so, but that he was unsuccessful in meeting this burden.
[18]
Mr. Jonas does not
argue that he will face inhumane treatment because of a lack of care available
to people in his circumstances in Hungary; rather, he
argues that he will be discriminated against in receiving the care available because
of his disability and ethnicity. These arguments were available for him to
make before the RPD and the PRRA Officer (if they were supported by new
evidence). The PRRA officer found that the RPD had considered the applicant’s
disability, his developmental delay, and his medical conditions. The PRRA officer
concluded that evidence in respect of these issues was not new evidence, and
consequently, it could not be considered on the PRRA application. The
applicant did not seek judicial review of this decision.
[19]
In reply to the
applicant’s submission that the enforcement officer failed to consider the record
that was available to him that was more comprehensive than that available to the
PRRA officer, it must be pointed out that consideration of deferral requests is
not a second PRRA application. The applicant had an obligation to put his best
foot forward at his refugee hearing and on his PRRA application. If he did
not, it is he and not the enforcement officer who must bear the responsibility
for the consequences. It was reasonable for the enforcement officer to rely on
the RPD and PRRA Officer’s assessments of the individualized risk that the applicant
allegedly faces. The potential inhumane treatment relied on by the applicant is
based on the risk that has already been addressed twice.
[20]
Enforcement officers
may consider “pending H&C applications that were brought on a timely basis
but have yet to be resolved due to backlogs in the system,” but the existence
of such applications does not obligate the officers to grant a deferral request
in all cases: Simoes, supra, at para. 12.
[21]
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.
[22]
I cannot agree with the submission
that the officer failed to consider relevant evidence. There is a presumption
that a decision-maker did in fact consider all of the evidence: Florea v. Canada
(Minister of Employment and Immigration), [1993] F.C.J. No. 598
(F.C.A.) (QL). The officer in this case made a number of references to the
evidence which supports the presumption that all the evidence was considered.
The applicant has not pointed to a piece of evidence that was so contradictory
to the officer’s conclusion that the failure to refer to this specific evidence
amounts to a reviewable error.
[23]
I do not accept the submission made
by the applicant that the officer provided inadequate reasons. The duty to
give reasons is commensurate with the particular circumstances of a given case:
VIA Rail Canada Inc. v.
National Transportation Agency, [2001] 2 F.C. 25 (C.A.). In Boniowski v. Canada (Minister of Citizenship and Immigration), 2004 FC 1161, at para. 11, Justice Mosley
held that the nature of deferral of removal decisions carries a reduced
obligation to give reasons. In this case, the officer’s reasons include a discussion
of the nature of his discretion, an explanation of what was considered in
reaching the decision, and an outline of the basis on which the discretion was
not exercised. In the circumstances of this case, nothing more was required; the
reasons were adequate.
[24]
The question is not
whether this Court would have granted a deferral of removal pending the outcome
of the applicant’s H&C application. The question is whether the officer
exercised his discretion in a fair manner and provided reasons that were justified,
transparent, and intelligible. The applicant has failed to point to any
unfairness in the decision-making process. The reasons provided by the officer
were justified, transparent, and intelligible.
[25]
Neither
party proposed a question for certification and in my view there is none.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. This
application for judicial review is dismissed; and
2. No
question is certified.
“Russel W. Zinn”
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