Date: 20081205
Docket: IMM-5221-08
Citation: 2008 FC 1355
Ottawa, Ontario, December 5,
2008
PRESENT: The
Honourable Mr. Justice Lemieux
BETWEEN:
ROBERT CHARLTON
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR
ORDER AND ORDER
[1]
On
November 30, 2008, I granted a stay from the execution of Robert Charlton’s
removal scheduled for Jamaica the next day. These are
my reasons for doing so. The applicant’s stay request is grafted to an
application for leave and judicial review of a decision dated November 27, 2008
by an Enforcement Officer (the Officer) not to defer his removal.
Facts
[2]
The
applicant came to this country in July 2005 on a temporary work visa to perform
farm labour during the 2005 harvesting season. He was reported AWOL from Pond
Craig Farm in November 2005. A warrant was issued for his arrest on February 6,
2006.
[3]
He
had gone underground and only came to the attention of the immigration
authorities when he was hospitalized for injuries suffered in an industrial
accident at a workplace where he had obtained employment using a false name. He
was arrested on March 27, 2007, was released on conditions and attended
a pre-removal interview on April 23, 2007 at which time he was offered a
Pre-Removal Risk Assessment (PRRA) which he availed himself of leading to a
negative decision dated February 17, 2008 communicated to him at a
pre-removal interview on March 17, 2008. The applicant did not seek to challenge
the negative PRRA decision by seeking leave of this Court.
[4]
The
industrial accident he suffered is at the center of his stay application. His
right hand was severely crushed on March 23, 2007. He was treated at the
Workplace Safety and Insurance Board (WSIB) Hand Specialty Program in the Toronto Western Hospital. He is under
the care of Dr. von Schroeder (Dr. Schroeder), an orthopaedic surgeon. Several
of Dr. Schroeder’s medical reports were sent to the Officer when written
deferral was requested.
[5]
The
record indicates the Applicant was reassessed by Dr. Schroeder on October
16, 2007 who noted some progress in his fingers but problems with his right
wrist. On October 29, 2007, he underwent right wrist arthroscopy. He was
seen by Dr. Schroeder on February 12, 2008 in follow-up. His medical report
to the WSIB indicates progress with the fingers but again problems with the
right wrist where significant damage was discovered. He remarked “probability
of future surgery was high”. Another surgical operation took place on April
21, 2008.
[6]
The
officers at the Canada Border Services Agency (CBSA) were aware of the
applicant’s medical condition. At his pre-removal interview on March 17,
2008, he was accommodated with respect to his then upcoming surgery on April
21, 2008.
[7]
On
June 18, 2008, Mr. Charlton attended another pre-removal interview when,
according to the Officer’s notes to file, he informed CBSA officers he was to
have another operation on his hand in April or May 2009, the Officer
noting “no proof was submitted”. These notes to file also reveal, however, the
applicant showed the interviewing officer a note from his doctor stating that
he was to return to the clinic in one month’s time for a follow-up assessment.
Removal was deferred for a couple of months subsequent to his appointment with
Dr. Schroeder.
[8]
On
November 6, 2008, he attended another pre-removal interview. The Officer’s
notes to file indicate “subject could not provide proof of his appointment in
April 2009. Subject served call-in notice for November 12, 2008 to
receive direction to report for removal.” He attended that interview on
November 12th and was directed to report for removal scheduled for November
30, 2008.
[9]
On
November 26, 2008, CBSA received a deferral request on behalf of the
applicant from the consulting firm of Immigration Experts Inc. It was 27 pages
in length and included his entire medical file. As noted, on November 27,
2008, the Officer refused to defer. A new direction to report was issued
for removal on December 1, 2008.
[10]
As
part of the material submitted to the Officer was a letter dated November 13,
2008 “to whom it may concern” from Dr. Schroeder, the material part of which
reads:
He states he is unable to work
due to the pain involving the right wrist.
His next appointment is
scheduled here on April 7, 2009. It is possible that he will require future
surgery to be determined at that time.
He will require infrequent
medical monitoring and follow-up for his chronic right wrist pain. He is
approaching maximum medical recovery and he will continue to have chronic pain.
Please do not hesitate to
contact me should further information be required.
[11]
Also
part of that package was an application to sponsor Mr. Charlton’s permanent
residence in Canada signed by
his common law spouse who indicated their relationship began in March 2006.
That sponsorship application is dated October 10, 2008.
Analysis
[12]
It
is settled law in order to obtain a stay of his removal, the applicant had to
establish a serious question to be tried with respect to the Officer’s decision
not to defer; irreparable harm flowing from his removal and the balance of
convenience in his favour.
(a) Serious issue
[13]
I
accept the submission of counsel for the respondent, the applicant had to meet
the higher test of likelihood of success rather than the lower threshold of a
question that was not frivolous and vexatious since the granting of the stay
would give him the relief he seeks on judicial review.
[14]
After
examining the notes to file, in respect of the Officer’s decision and
considering the arguments of counsel, I was satisfied the underlying
application for leave and judicial review raises the following serious
questions:
1)
Did
the Officer apply the right test in reaching his decision not to defer? It is
clear that the Officer focussed on Mr. Charlton’s ability to travel on the day
of his scheduled removal. The recent jurisprudence of this Court is broader
than this test and is to the effect a removals Officer must examine whether
there are compelling personal circumstances warranting deferral, namely humanitarian,
and compassionate considerations (see Ramada v. Canada (Solicitor General),
2005 FC 1112 and the cases which have followed it).
2)
Did
the Officer err in embarking upon a study of the medical reports without
consulting the medical officers at Citizenship and Immigration Canada who are
there for that purpose?
3)
Did
the Officer misinterpret the medical evidence, particularly, Dr. Schroeder’s
letter of November 13, 2008?
(b) Irreparable harm
[15]
Irreparable
harm includes harm to an individual’s personal integrity. It is clear Dr.
Schroeder scheduled a follow up consultation with Mr. Charlton for April 7,
2009. He thought that follow up was necessary because of the applicant’s
medical condition. He wanted to find out how the patient was doing after the
surgical intervention in April 2008. He could not say whether Mr. Charlton
would need future surgery until he had examined him. Counsel for the Respondent
argued there was no evidence on the record he could not obtain adequate medical
services in Jamaica. With
respect, the issue raised by counsel for the respondent is premature in that
until Dr. Schroeder could do the follow up, he, nor anybody else was in the
position of determining whether additional surgery or other appropriate
treatment was necessary. Irreparable harm flowed, in my view, from the fact the
applicant would not be able to consult with the surgeon who had treated
him throughout his serious industrial accident and who had many follow-ups with
him and knew his needs.
(c) Balance of convenience
[16]
Counsel
for the Respondent argued the applicant did not have clean hands with respect
to his immigration file; he went underground and tried to evade the law. If it
were not for the present uncertainties surrounding the applicant’s medical
condition, I would have accepted counsel for the respondent’s submission. On
balance, convenience favours the stay of his removal pending the determination
of his application for leave and judicial review.
ORDER
THIS COURT ORDERS that
the applicant’s removal from Canada is stayed pending the determination of his
leave application and, if leave is granted, pending the determination of his
application for judicial review.
“François
Lemieux”
_____________________________
Judge
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