Date: 20090910
Docket: IMM-3608-08
Citation: 2009 FC 891
Ottawa, Ontario, September 10,
2009
PRESENT: The Honourable Louis S. Tannenbaum
BETWEEN:
Dasha
Susan CARUTH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
THE
MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the decision of Jean-Pierre Duhaime
(officer, also known as “removal officer” or “enforcement officer”) of the
Canada Border Services Agency (CBSA) wherein he set the applicant’s removal
date as August 24, 2008.
[2]
Leave
was granted by Madam Justice Hansen on April 9, 2009.
Facts
[3]
The
applicant was born on June 27, 1975 in Kingstown, St.
Vincent. She arrived in Canada on May 9, 2002 and filed a claim for
refugee protection on July 10, 2003. Her claim was based on her fear of a man
who was allegedly obsessed with her. She believed him to be responsible for a
fire that was set at her sister’s house, where she was living at the time, which
caused the death of two of her sister’s children.
[4]
On
March 12, 2003, her claim was refused because the Refugee Protection Division
of the Immigration and Refugee Board (RPD) found she was not credible. Her
application for leave and judicial review of the RPD’s decision was dismissed
on July 18, 2003, because the applicant failed to file an application record.
[5]
On
August 18, 2003, a removal order against the applicant became effective.
[6]
On
November 21, 2006, the applicant did not show up to an immigration meeting
scheduled to update her immigration file and make arrangements for her removal.
[7]
On
February 8, 2007, an immigration warrant was issued for her arrest.
[8]
In
May of 2007, the applicant discovered that she suffers from end-stage chronic
renal failure. She continues to receive dialysis treatment for her condition at
the Verdun
Hospital three times
a week for three hours and 30 minutes each visit.
[9]
The
applicant has worked as a domestic worker since she first arrived in Canada. She was
never on welfare until after she became ill in May of 2007.
[10]
When
the applicant first started treatment, she used a health card under a false
identity. Once it expired, the hospital requested a new card and at this point
she revealed her true identity.
[11]
On
November 20, 2007, the applicant applied for a pre-removal risk assessment
(PRRA). The application was refused on June 4, 2008.
[12]
On
July 16, 2008, the applicant was interviewed by the officer. On July 30, 2008,
the officer set her departure date for August 24, 2008. It is this decision
that is under review in this application.
[13]
On
August 21, 2008, Madam Justice Hansen granted a stay of the applicant’s removal
pending resolution of the within application for leave and judicial review.
[14]
The
applicant has two sisters who are landed immigrants and live in Montreal – Andrea and
Laverne. The applicant lives with her sister Andrea and Andrea’s five children.
The applicant’s two children live in St. Vincent with another one of her
sisters. The applicant’s mother died in St. Vincent last year and the
applicant says she has never been close with her father who lives in New York.
Relevant Statutory
Provisions
[15]
Immigration
and Refugee Protection Act, S.C. 2001, c. 27 :
|
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 it must be
enforced as soon as is reasonably practicable.
|
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 appliquée dès que les
circonstances le permettent.
|
Decision under Review
[16]
On
July 30, 2008, the officer set the applicant’s removal date as August 24, 2008.
[17]
The
officer’s reasons are made up of his notes from his interview of the applicant.
The notes state:
1.
The
subject showed up alone to her interview result given.
2.
Also
a date of departure from Canada.
3.
She
maintains that she has health problems.
4.
I
have sent the medical report of the treating doctor to our doctor in Ottawa.
5.
New
meeting date given to the subject.
6.
Answer
of the doctor in the file. Treatment in Barbados or Jamaica.
7.
I
have given the subject a date of departure.
[18]
In
the affidavit of Dr. Walter Waddell, the Medical Officer at the Department of
Citizenship and Immigration who reviewed the applicant’s file, Dr. Waddell
confirms that dialysis treatment is not available in St. Vincent but the
applicant may obtain treatment for her disease in Barbados or Jamaica and both
public and private care are available.
Issues
[19]
The
applicant does not expressly list the issues, but she presents arguments under
the following headings:
- Medical
status and required treatment;
- Establishment
and the right to protection of the family;
- Risk of
persecution and lack of state protection; and
- Canada’s human
rights obligations.
[20]
The
respondent frames the issue as:
- Did
the officer fail to exercise his discretion, ignore relevant evidence or
otherwise act contrary to the law?
[21]
I
wish to re-frame the issues as follows:
1. What
is the applicable standard of review?
2. Was
the officer’s decision reasonable?
Position of the
Applicant
[22]
The
applicant stresses that dialysis is not available in St. Vincent and Dr. Marc
Ghannoum, Chief of Nephrology at the Verdun Hospital, states that without
dialysis, she would die within two weeks.
[23]
The
applicant submits that it is clear from the officer’s decision that he did not
take into account the fact that she will face certain death upon her return to St. Vincent. The
applicant points to what is said to be a similar case: Blair v. Canada (Citizenship
and Immigration), 2008 FC 800 at paragraph 20. The applicant submits the
officer did not consider the irreparable harm the applicant would face were she
returned to St. Vincent.
[24]
In
her reply submissions, the applicant states she is unable to travel to Barbados or Jamaica and she
cannot receive medical care in those two countries without paying for it. While
cross-border treatment in Canada is paid for by Medicare, in St. Vincent, it is
impossible for the applicant’s medical care in Jamaica or Barbados to be paid
for.
[25]
The
applicant cites the case of D. v. the United Kingdom dated April 21,
1997, wherein the European Court of Human Rights held that deporting a man with
HIV-AIDS back to St. Kitts would violate article 3 of the U.N. Convention
Against Torture. Similarly, the applicant submits that removal to St.
Vincent coupled with the fact that she would be unable to receive proper
medical care and therefore will certainly die is inhuman treatment and thus a
violation of the Convention Against Torture.
[26]
The
applicant also points to a decision of Justice MacKay wherein he granted a stay
of deportation because the citizen of the Philippines was
undergoing dialysis treatment: Adviento v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 543, [2002] F.C.J. No. 717.
[27]
Since
the applicant obtained a stay from Justice Hansen on August 21, 2008, she
believes that she should be allowed to stay in Canada permanently.
Establishment and the
right to protection of the family
[28]
The
applicant asserts that in making his decision, the officer did not consider the
high level of establishment she has in Montreal, nor did he
take into account the principle of the protection of the family.
[29]
The
applicant has been living in Montreal for six years and has worked as a
domestic worker since her arrival in Canada. She only went on
welfare when she became ill in May of 2007. She lives with her sister Andrea
and her five nieces and nephews. She is like a second mother to the children.
[30]
The
applicant states that the right to family life is a fundamental right both in
Canadian and International law: paragraph 3(1)(d) of IRPA;
articles 23 and 24 of the UN International Covenant on Civil and Political
Rights; and article 16 of the Universal Declaration of Human Rights.
Risk of persecution and
lack of state protection
[31]
The
applicant states that she fears Mikey Dirotee, an obsessive man who was
following her and threatening her life back in St. Vincent. The
applicant says she complained to the police numerous times about Mr. Dirotee’s
harassment, but nothing was ever done. Protection is said not to be available
in St. Vincent for victims of domestic violence. On this point the applicant
points to the U.S. Department of State Country Report for St. Vincent and the
Grenadines, 2007; Freedom House’s country report from 2005; and the case of Codogan
v. Canada (Minister of Citizenship and Immigration), 2006 FC 739.
[32]
The
applicant submits there is no internal flight alternative for women in St. Vincent and points
to excerpts of the UNHCR guidelines on state protection, personal
circumstances, and psychological trauma. The applicant submits it is
unreasonable and a clear error in law to find that there is state protection
available on such minimal evidence.
Canada’s human
rights obligations
[33]
The
applicant submits the decision of the officer violates:
- sections
7 and 12 of the Charter;
- article
3 of the U.N. Convention Against Torture and other forms of Inhuman or
Degrading Treatment or Punishment (1984);
- The
right of a refugee not to be returned to a territory where his life or freedom
would be threatened on account of his race, religion, nationality, membership
in a particular social group or political opinion, as stated in the Convention
relating to the Status of Refugees;
- The
right to a simple, brief procedure whereby the courts will protect the
applicant from acts of authority that, to his prejudice, violate fundamental
constitutional rights, as required by article 18 of the American Declaration of
the Rights and Duties of Man; and
- The
right not to be deported except in pursuance of a decision reached in
accordance with law, as enshrined in article 13 of the International Covenant
on Civil and Political Rights.
For these reasons the applicant submits the
officer’s decision should be quashed and the matter should be referred back for
re-assessment.
Position for the
Respondent
[34]
The
respondent says it is trite law that enforcement officers have a very limited
discretion. The discretion is restricted to deferring removal only in the
presence of compelling circumstances and the officer’s role is not to conduct a
full H&C assessment: Griffiths v. Canada (Solicitor General), 2006
FC 127 at paragraphs 26 and 28. While officers are granted the discretion to
fix new removal dates, they are not intended to defer removal to indeterminate
dates. The scope of an officer’s discretion cannot be changed by virtue of the
type of requests made: Baron v. Canada (Public
Safety and Emergency Preparedness), 2009 FCA 81 at paragraphs 80 and 81.
[35]
In
response to the applicant’s reliance on Adviento, the respondent points
out that the case was later dismissed at the judicial review stage. At
paragraph 37 of the decision, the following is stated about the scope of an
enforcement officer’s discretion: “It would be contrary to the purposes and
objects to the Act to expand, by judicial declaration, a removal officer’s
limited discretion so as to mandate a “mini H&C” review prior to removal.”
[36]
The
respondent notes that the officer was diligent and sought the opinion of a
medical officer, Dr. Waddell, who has the expertise to assess the applicant’s
health issues and is knowledgeable in renal diseases. Dr. Waddell recognized
the serious health problems of the applicant but confirmed that the treatment
she requires is available and accessible in Barbados or Jamaica under a
public or private health care regime. It is said to be clear that the officer
refused to defer removal because treatment was available in Barbados or Jamaica.
[37]
According
to the respondent, transborder treatment is not tantamount to an absence of
treatment.
[38]
The
respondent submits that extending the presence of a foreigner without status in
Canada indefinitely
is beyond the discretion of the officer: Mekarbèche c. M.C.I., 2007 CF
566 at paragraph 40.
The allegations of risks
of abuse are not pertinent
[39]
As
for the allegations of domestic violence, the respondent points out that the
RPD found serious problems with the applicant’s credibility in this regard. The
applicant cannot now rely on the same allegations which were disbelieved.
[40]
Additionally,
at the PRRA stage, the applicant relied exclusively on her health problems and
did not raise any other risk. The negative PRRA decision was not challenged by
the applicant and is now final.
The allegations of
establishment are not pertinent
[41]
The
respondent states that it is hard to understand why the applicant did not apply
for permanent residency on humanitarian and compassionate grounds. Instead, she
used the Medicare card of another person and came to the immigration
authorities when that card expired.
[42]
Additionally,
the respondent notes that the applicant chose to stay in Canada on her own
accord after her refugee claim was denied in March of 2003 and the departure
order became effective on August 18, 2003. This is clearly not a situation
where the prolonged stay in Canada was beyond the control of the applicant.
[43]
Moreover,
the applicant has family in St. Vincent, including a sister and her own two
children who were born in 1994 and 1999.
[44]
The
respondent characterizes the applicant’s allegations as blaming the officer for
not having done an H&C assessment and a risk assessment, however, those are
outside the purview of the officer. The officer’s decision was based on the
facts and was not unreasonable, according to the respondent.
Analysis
What is the applicable
standard of review?
[45]
Recently,
Justice Nadon for the majority of the Federal Court of Appeal stated he cannot
see how it could be disputed that the standard of review of an enforcement
officer’s decision refusing to defer an applicant’s removal from Canada is reasonableness.
See Baron v. Canada (Minister of Public
Safety and Emergency Preparedness), 2009 FCA 81; (2009), 387 N.R. 278 at
paragraph 25.
Was the officer’s
decision reasonable?
[46]
The
respondent is correct that the discretion of the officer is limited. In Baron,
Justice Nadon with Justice Desjardins concurring, stated “It is trite law that
an enforcement officer’s discretion to defer removal is limited.” See paragraph
49. Justice Nadon cited his reasons in Simoes v. Canada (M.C.I.), [2000]
F.C.J. No. 936 at paragraph 12 (T.D.), wherein he stated:
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 whether it is “reasonably
practicable” for a removal order to be executed, a removal officer may consider
various factors such as illness, other impediments to traveling, and pending H
& C applications that were brought on a timely basis but have yet to be
resolved due to backlogs in the system.
[47]
As
for the applicant’s medical condition, the evidence is clear that it is serious
and she requires regular dialysis treatments. The officer rightly asked for a
medical officer’s opinion. The evidence the medical officer, Dr. Waddell,
received was that the applicant may obtain treatment for her disease in Barbados or Jamaica.
[48]
It
is to be noted that the applicant is a citizen of St. Vincent. She is being deported
to St. Vincent. While the
officer referred the medical problem of the applicant to Dr. Waddell of C.I.C. to
confirm the opinion of her own doctor in Montreal, it seems that Dr. Waddell
while confirming the opinions of the applicant’s doctor concerning her illness,
went beyond the request and informed the officer that treatment while not
available in St. Vincent could be had in either Barbados or Jamaica.
[49]
While
it may be true that such treatment is available in Barbados or Jamaica, the brutal
fact is that she is being deported to St. Vincent and not to Barbados or Jamaica. Moreover,
there is nothing in the record to establish that the applicant has any
connection to Barbados or Jamaica.
[50]
As
applicant’s counsel argued before the undersigned, the treatment required by
the applicant in order to prevent her sure death within a very short period of
time is also available in France and Japan, and I would add the United
States.
However, this is irrelevant since she is ordered to be deported to St. Vincent,
not to Barbados, Jamaica, France, Japan or the United
States.
[51]
I
believe the officer’s decision not to defer removal unless there were assurances
that the authorities in Barbados were prepared to accept
the applicant for the required treatments three times per week, was unreasonable.
There is nothing in Dr. Waddell’s affidavit which indicates that he
communicated with the medical authorities in Barbados to assure
that she would be accepted, nor how the treatments would be paid for.
[52]
There
is also the question of transportation to and from Barbados three times
each week. How is the applicant, who the evidence now establishes is unemployed,
going to arrange for this?
[53]
While
it is true that the officer could not defer the removal indefinitely, he could
have fixed another date in order for the above questions to be resolved before
deporting the applicant.
[54]
For
the above reasons, I am prepared to grant the application for judicial review.
JUDGMENT
THIS COURT
ORDERS that the
decision of removal officer Jean-Pierre Duhaime dated July 30, 2008 is rescinded
and set aside for all purposes. The matter is referred back for redetermination
by a different officer. In that redetermination, the officer should take into
consideration the issues referred to in paragraph 51 and 52 of the reasons for judgment
herein. There are no questions for certification.
"Louis S. Tannenbaum"
AUTORITIES
CONSULTED BY THE COURT
1.
Adjei
c. Canada (Ministre de l’Emploi et de l’immigration), [1989] 2 C.F. 680,
7 Imm. L.R. (2d) 169 (C.A.)
2.
Blair v. Canada (Citizenship and Immigration), 2008 FC 800
3.
D. v. the United Kingdom, European Court of Human Rights,
146/1996/767/964, April 21, 1997
4.
Adviento v. Canada (Minister of Citizenship and
Immigration), 2002 FCT
543, [2002] F.C.J. No. 717
5.
Country Report for
Saint-Vincent and the Grenadines,
U.S. Department of State, 2007
6.
Doreitha Codogan
v. Canada (Minister of Citizenship and
Immigration),
2006 FC 739
7.
Simoes v. M.C.I., [2000] F.C.J. No. 936, par. 12
(FC) (QL)
8.
Williams v. M.C.I., [2002] F.C.J. No. 1133, par 21
(QL), 2002 FCT 853
9.
Prasad v. M.C.I., [2003] F.C.J. No. 805, par. 32
(QL), 2003 FCT 614
10.
Adviento v. M.C.I., [2003] F.C.J. No. 1837,
par. 45 (QL), 2003 FC 1430
11.
Griffith v. Canada (Solicitor General), [2006] F.C.J. No. 182, par. 26 (QL),
2006 FC 127
12.
Uthayakumar v.
M.P.S.E.P., [2007]
F.C.J. No. 1318, par. 12 to 14 (QL), 2007 FC 998
13.
Gyan v. M.P.S.E.P.,
[2007] F.C.J. No. 1023, par. 10 to 12 (QL), 2007 FC 771
14.
Griffiths v. Canada
(Solicitor General),
2006 FC 127, par. 26 and 28
15.
Mekarbèche
c. M.C.I.,
2007 CF 566, par. 40
16.
Bains v. Minister of Employment and
Immigration (1990), 109 N.R. 239, paras 2-3 (F.C.A.)
17.
Canada (Minister
of Employment and Immigration v. Golebiewski, [1992] F.C.J. No. 270, par. 3 (C.A.) (QL)
18.
Krishnapillai
v. Canada,
[2002] 3 F.C. 74, 2001 FCA 378, par. 10
19.
Baron v. Canada (Public Safety and Emergency
Preparedness). 2009 FCA
81, paras. 80 to 81, 387 N.R. 278 at par. 25
20.
Wang v. M.C.I., 2001 FCT 148,
paras. 31, 32 and 45
21.
Huerto v. Canada
(Minister of Citizenship and Immigration), 2003 FCT 172
22.
Jimenez
c. Canada
(Ministre de la Citoyenneté et de l’Immigration), 1999 CanLII 8997
(C.F.)
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