Docket: IMM-2558-11
Citation: 2011 FC 1302
Toronto, Ontario, November 10,
2011
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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MAHBOOB UNNISA HAKEEM
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Mahboob Unnisa Hakeem’s fourth request to defer
her removal from Canada on
medical grounds was refused. She sought judicial review of that decision and a
stay of removal was subsequently granted by this Court. For the reasons that
follow, her application for judicial review will be dismissed.
The
Deferral Request
[2]
Ms. Hakeem is a 59 year old citizen of India. She suffers from a number of health
problems including diabetes, depression and orthopaedic issues. Her attending
physician and her cardiologist suspect that she may also suffer from a heart
condition, although this had not been confirmed through testing by the time of
her deferral request.
[3]
Ms. Hakeem’s removal was rescheduled for April
20, 2011. Her most recent deferral request asked that her removal be deferred
in order to allow her to undergo an angiogram in order to “conclusively
determine if she has coronary heart disease”. Although an appointment was
obtained for the angiogram prior to the scheduled removal date, Ms. Hakeem did
not end up having the test at that time as she was in immigration detention.
[4]
Ms. Hakeem’s deferral request also stated that
she would not be able to access medical care once she was living in India.
[5]
The removals officer obtained a medical opinion
from a Citizenship and Immigration Canada [CIC] doctor, which found that Ms.
Hakeem’s medical condition was stable and that she was fit to fly. Ms. Hakeem
then provided the enforcement officer with additional letters from her family
doctor and her cardiologist regarding her health situation. She also provided a
letter from a doctor in India
regarding the cost and availability of medical care in that country.
[6]
The enforcement officer did not provide this
additional information to the CIC doctor for his consideration, which, Ms.
Hakeem says, was a reviewable error. Rather, the officer concluded that Ms.
Hakeem’s medical tests had not thus far established that she in fact suffered
from heart disease, and determined that she was fit to fly.
The officer further found that Ms. Hakeem had not demonstrated that she would
be unable to access medical care in India. Consequently, the request for a deferral was refused.
[7]
The day before Ms. Hakeen was to be removed from
Canada, this Court granted a
stay of her removal pending the hearing of her application for judicial review.
Is this
Application Moot as it Relates to the Angiogram Issue?
[8]
The first question to be determined is whether
this application is now moot insofar as it was based upon Ms. Hakeem’s need for
additional time for medical testing.
[9]
In Baron v. Canada (Minister of Public Safety
and Emergency Preparedness), 2009 FCA 81, [2010] 2
F.C.R. 311, at paras. 29-31, the Federal Court of Appeal observed that where a
deferral is sought pending the happening of a particular event, the happening
of that event will render the application to judicially review the refusal of
the deferral moot.
[10]
The respondent points out that Ms. Hakeem sought
the deferral of her removal in part to give her the chance to have an
angiogram. She has now had seven months to have the test, which, the respondent
says, renders the application for judicial review moot.
[11]
A review of the record discloses that Ms. Hakeem’s
family doctor first recommended that she undergo an angiogram in 2009. She
refused to have the test at that time.
[12]
On April 11, 2011, Ms. Hakeem’s cardiologist
advised her family doctor that he was booking Ms. Hakeem for an angiogram which
was to take place on April 19, 2011. Although the test was not carried out
because of Ms. Hakeem’s detention, the fact that a date for the test could be
obtained within a week of requesting it suggests there are no significant wait
times for the procedure.
[13]
We do not know whether Ms. Hakeem has now had
her angiogram as she has chosen not to put any evidence before the Court
regarding the rescheduling of the test. Indeed, her silence on this point is
deafening. For all we know, the test may have taken place months ago. It is
also possible that Ms. Hakeem has once again decided not to have the test. What
we do know is that Ms. Hakeem has now had seven months to have the test and
that she has not established that she encountered any difficulties rescheduling
the test in the period since the stay was granted.
[14]
In the unique circumstances of this case, I am
prepared to draw an adverse inference against Ms. Hakeem, and find that the
passage of time has rendered this aspect of the application moot.
The
Availability of Medical Care in India
[15]
Ms. Hakeem’s deferral request was also based
upon her alleged inability to access medical care in India.
[16]
In dealing with this aspect of the application,
I would start by observing that the discretion of enforcement officers to defer removal is very limited and
deferrals are intended to be temporary: see Baron, above, at para. 51 and Canada (Minister of Public Safety and Emergency Preparedness) v. Shpati, 2011 FCA 286, [2011] F.C.J. No. 1454 at para. 45.
[17]
The unavailability of medical care in the
country of destination or the inability to access it are not temporary
impediments that can be addressed by a short-term delay of removal. Rather, they
are on-going problems that would more properly be addressed through the H&C
process.
[18]
Even if the unavailability of medical care in
the country of destination is a matter that can properly
be taken into account by an enforcement officer in dealing with a request to
defer, I am nevertheless satisfied that the officer reasonably concluded that
Ms. Hakeem had not established that she would be unable to access proper
medical care in India.
[19]
While Ms. Hakeem asserts that she is
impecunious, she did not provide the enforcement officer with any evidence to
support this contention. She did, however, provide the officer with a copy of
the submissions filed in
connection with her most recent H&C application.
These submissions described the significant support that Ms. Hakeem receives
from her large extended family in Canada and the financial resources that are available to the family. In
these circumstances, the officer’s conclusion that Ms.
Hakeem had not demonstrated that she would be unable to access medical care in India was perfectly reasonable.
Conclusion
[20]
For these reasons, the application for judicial review is dismissed.
[21]
Ms. Hakeem acknowledges that, practically
speaking, the outcome will be the same whether this application is granted or
dismissed. Either way, a new date will likely be set for her removal from Canada,
and the process will start all over again. It would certainly be in Ms.
Hakeem’s interest to ensure that any further requests for deferral are
accompanied by complete and up-to-date medical information, including the
results of any angiography testing that she may have undergone.
Certification
[22]
Ms. Hakeem has proposed the following questions
for certification:
1. Is it within a removal officer’s discretion
to consider that this applicant may not have access to medical care for a
potentially life-threatening condition?
2. Is it within a removal officer’s discretion
to consider that removal of the applicant may be the cause of a potentially
life-threatening medical event in her destination country?
[23]
While I have expressed concerns as to whether the ability of an
applicant to access medical care in his or her home country is an appropriate
consideration on a request to defer, I have decided the issue based upon the
lack of evidence adduced by Ms. Hakeem to support her claim that she would be
unable to access adequate medical care in India. Consequently, the answer to
the first question would not be dispositive of her application.
[24]
The second question would similarly not be dispositive of this case in
light of my reasons for dismissing the application. As a result, I decline to
certify either question.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. This
application for judicial review is dismissed; and
2. No
serious question of general importance is certified.
“Anne Mactavish”
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