Date: 20080221
Docket: IMM-1193-07
Citation: 2008 FC 227
Ottawa, Ontario, February 21,
2008
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
CRAIGTHUS ANTHONY LEVEL
By his litigation guardian Sharlene Level
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of an Enforcement Officer’s decision dated
March 20, 2007 denying the applicant’s request to defer his removal from Canada. On March
12, 2007 the applicant requested that removal be deferred until a decision is
rendered on his application for permanent residence on humanitarian and
compassionate grounds (H&C application). The H&C application was only
received by the respondent on March 13, 2007.
FACTS
[2]
The
applicant, a 36-year-old Jamaican citizen, was sponsored by his father for Canadian
permanent residency in 1988. Sharlene Level is the applicant’s litigation
guardian and younger sister. The applicant suffers from schizophrenia and is
currently receiving treatment, which includes the anti-psychotic drug risperidone.
He is monitored by a psychiatrist and receives significant support from both
his sister and his father.
[3]
On
October 25, 2004, the applicant was convicted of two counts of sexual assault.
It was while incarcerated that the applicant was diagnosed as schizophrenic. As
a result of the convictions, the applicant is now inadmissible to Canada pursuant to
paragraph 36(1)(a) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (IRPA). Accordingly, he is subject to a Removal Order, which was
issued on June 17, 2005.
[4]
On
March 9, 2006, the applicant’s appeal to the Immigration Appeal Division (the
IAD) was dismissed for lack of jurisdiction pursuant to subsection 64(2) of the
IRPA. On July 20, 2006, the applicant’s leave application to judicially review
the IAD decision was dismissed. A subsequent Pre-Removal Risk Assessment (PRRA)
application was refused on October 19, 2006. The applicant states that while he
filed the PRRA forms, he did not file any personal information, submissions, or
evidence in support since he was not aware of the importance of the PRRA. The
applicant was not represented by counsel at the time and no application for
judicial review of the PRRA decision was filed. The applicant’s confusion is
somewhat confirmed in the PRRA officer’s reasons, which state:
In his PRRA application the applicant
does not state why he has submitted a PRRA application. He does not provide any
risk. …
The applicant has submitted a PRRA
application however, he has not indicated why he fears returning to his native
country Jamaica.
The PRRA officer reviewed the Jamaica country
conditions and concluded the applicant would not be “subjected personally to a
risk of life or to a risk of cruel and unusual treatment or punishment” if
returned to Jamaica. Of course,
without the benefit of any personal documentation, the PRRA officer was not
aware of the applicant’s personal situation and history of mental illness.
[5]
On
March 12, 2007, the applicant requested that the Canada Border Services Agency (the
CBSA) defer his removal from Canada until a final decision is rendered in his
H&C application, which was received by the respondent on March 13, 2007.
Other submissions raised by the applicant included:
1.
that the
applicant never received a risk assessment considering the actual risk of harm
he may be subject to upon return to Jamaica;
2.
that the
applicant would not receive adequate psychiatric care if returned to Jamaica; and
3.
that the
applicant had retained a lawyer to assist him in appealing his criminal
sentence.
Decision under review
[6]
On
March 20, 2007, an Enforcement Officer denied the applicant’s request for a
deferral. After considering the applicant’s submissions, the Enforcement Officer
concluded:
I do not feel the factors presented
warrant a deferral of removal. In this regard, the [CBSA] has an obligation
under section 48 of the [IRPA] to carry out removal orders as soon as
reasonably practicable.
Based on the information presented by
counsel and after careful consideration, I have come to the following decision
with regards to this deferral request[.]
I am not satisfied that a deferral of the
execution of the removal order is appropriate in the circumstances of this
case.
In coming to this conclusion, the
Enforcement Officer obtained medical information about Jamaica from the CBSA’s Medical
Services Branch in Ottawa. This Branch provided information about the
availability of the applicant’s drug in Jamaica and the
availability of psychiatric care in Jamaica. The Enforcement
Officer’s decision set out in detail the psychiatric care available with names
and telephone numbers in Jamaica. With this extrinsic
information, the Enforcement Officer concluded that the applicant “can receive
the necessary care he requires in Jamaica.”
[7]
The
applicant’s removal was scheduled for March 29, 2007. However, the Court stayed
the execution of the applicant’s Removal Order until this application is
considered and determined.
ISSUE
[8]
The
Court is satisfied that the only issue raised in this application is: Is the
medical evidence obtained by the Enforcement Officer from the Medical Services Branch
“extrinsic evidence” that the Enforcement Officer had a duty to inform the
applicant of and to give the applicant a fair opportunity of correcting or
contradicting before making her decision?
STANDARD OF REVIEW
[9]
The
issue to be considered concerns matters of natural justice and procedural
fairness, which are questions of law subject to the standard of correctness. In
such cases, the Court must “examine the specific circumstances of the case and
determine whether the [decision maker] in question adhered to the rules of
natural justice and procedural fairness”: Thamotharem v. Canada (Minister of
Citizenship and Immigration), 2006 FC 16, [2006] 3 F.C.R. 168 at
paragraph 15. In the event that a breach is found, no deference is due and the
decision will be set aside: Sketchley v. Canada (Attorney
General),
2005 FCA 404, [2006] 3 F.C.R. 392.
[10]
With
respect to the merits of the decision, the authority granted to an Enforcement
Officer is contained in section 48 of the IRPA, which states:
|
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.
|
[11]
There is conflicting
opinion in the jurisprudence concerning the appropriate level of deference to
accord to the merits of an Enforcement Officer’s decision. Many decisions of
the Court have found that the appropriate standard of review is patent
unreasonableness: see Hailu v. Canada (Solicitor General), 2005 FC 229, 27 Admin.
L.R. (4th) 222; Zenunaj v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1715, [2005] F.C.J. No. 2133 (QL); and Haghighi v.
Canada (Minister of Public
Safety and Emergency Preparedness), 2006 FC 372, 289 F.T.R. 150. In accordance
with this standard, an Enforcement Officer’s decision will only be set aside if
found to be “clearly irrational” or “evidently not in accordance with reason”: Law
Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247.
[12]
However,
other decisions have concluded that the appropriate standard of review is that
of reasonableness simpliciter: see Adviento v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1430, 242 F.T.R. 295; Ragupathy v.
Canada (Minister of Public Safety and Emergency Preparedness), 2006 FC 1370,
303 F.T.R. 178; and Cortes v. Canada (Minister of Citizenship and Immigration), 2007 FC 78, [2007]
F.C.J. No. 117 (QL).
[13]
In Ragupathy, above, I stated that the standard of patent
unreasonableness is often applied where the question before the Enforcement
Officer turns on fact alone. In any event, the only issue is one of procedural
fairness subject to the correctness standard of review.
ANALYSIS
Issue: Is the medical evidence
obtained by the Enforcement Officer from the Medical Services Branch “extrinsic
evidence” that the Enforcement Officer had a duty to inform the applicant of
and to give the applicant a fair opportunity of correcting or contradicting
before making her decision?
[14]
The
Enforcement Officer’s decision was based, in part, on an assessment of the
applicant’s medical information by the CBSA’s Medical Services Branch. That
assessment was made to aid the Enforcement Officer in reaching a decision as to
whether the applicant would receive adequate psychiatric care if returned to Jamaica. The Enforcement
Officer stated at page 3 of her Reasons:
Medical
information that accompanied this deferral request and the information on file
was sent to the Medical Services Branch for their assessment and evaluation
regarding this case. The Medical Services Branch indicated that the drug,
risperidone was available in Jamaica. The Medical Services Branch also
indicated that psychiatric care is available in Jamaica.
[15]
The
applicant submits that the assessment and opinion rendered by the Medical
Services Branch constitutes “extrinsic evidence” that should have been shared
with the applicant for comment, and that the Enforcement Officer’s failure to
do so amounted to a breach of procedural fairness. In support, the applicant cites
the decision in Dasent v. Canada (Minister of Citizenship and Immigration) (1994), 87 F.T.R. 282, where
Mr. Justice Rothstein, sitting as a Trial Judge, stated at paragraph 20 about
“extrinsic evidence”:
¶ 20 …
In
the case at bar, having regard to the words “not brought forward by the
applicant” used by Hugessen, J.A., to qualify the term “extrinsic evidence”,
and his reference to Muliadi, I interpret the term “extrinsic evidence
not brought forward by the applicant” as evidence of which the applicant is
unaware because it comes from an outside source. This would be evidence of
which the applicant has no knowledge and on which the immigration officer
intends to rely in making a decision affecting the applicant. While this would
include information obtained from an outside party as in Muliadi, I fail
to see why it would not also include evidence from a spouse obtained separately
from the applicant, or other information in the immigration file that did not
come from the applicant, of which the applicant could not reasonably be
expected to have knowledge.
¶ 21 The relevant point as I see it is
whether the applicant had knowledge of the information so that he or she had
the opportunity to correct prejudicial misunderstandings or misstatements. The
source of the information is not of itself a differentiating matter as long as
it is not known to the applicant. The question is whether the applicant had the
opportunity of dealing with the evidence. This is what the long-established
authorities indicate the rules of procedural fairness require. In the well
known words of Lord Loreburn L.C. in Board of Education v. Rice, [1911]
A.C. 179 (H.L.) at page 182:
They can obtain information in any way they
think best, always giving a fair opportunity to those who are parties in the
controversy for correcting or contradicting any relevant statement prejudicial
to their view.
[16]
Based
on this interpretation, the applicant submits that the evidence of the Medical
Services Branch was “extrinsic evidence” since it was unknown to the applicant
when the Enforcement Officer rendered her decision and was critical in the
determination not to defer the applicant’s removal. Accordingly, the applicant
submits that his rights to procedural fairness were breached by not being
granted an opportunity to comment on the opinion of the Medical Services
Branch.
[17]
The
applicant also relies on the Federal Court of Appeal decision in Muliadi v.
Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205 (C.A.), and
the Court of Appeal decision in Haghighi v. Canada (Minister of
Citizenship and Immigration), [2000] 4 F.C. 407 (C.A.) per Evans J.A. at
paragraphs 26-27:
¶ 26 Fifth, in addition to the
admonition that immigration officers owe more than a minimal duty of fairness …
Baker, supra, also restored to the mainstream of procedural
fairness analysis the task of determining the content of the duty of fairness
owed by immigration officers when making inland H&C decisions. The question
is whether the disclosure of the report was required to provide Mr. Haghighi
with a reasonable opportunity in all the circumstances to participate in a
meaningful manner in the decision-making process.
¶ 27 Hence,
in deciding whether disclosure … is required, the Court must consider, inter
alia, the factors identified by L’Heureux-Dubé J. for locating on the
fairness spectrum the duties owed by the immigration officer … The inquiry into
what is required to satisfy the duty of fairness must be contextualized: asking
… whether the report can be characterised as “extrinsic evidence” is no longer
an adequate analytical approach.
[18]
The
efficient administration of section 48 of the IRPA dictates that disclosure should
not generally be required. By the time a deferral request is made, the
individual facing deportation is likely to have already exhausted the many
other avenues available to them under the IRPA, each of which contains its own
set of procedural safeguards. Accordingly, requiring an Enforcement Officer to
inform the applicant of the expert opinion of the Medical Services Branch, and
to further allow the applicant to comment on that opinion, would undermine the efficiency
of the immigration process. As the respondent states, to require what the
applicant suggests would impose a procedural formality on Enforcement Officers
inimical to the proper performance of their statutory duties.
[19]
The
Enforcement Officer is statutorily bound to remove the applicant as soon as
reasonably practicable. However, if the Officer relies on extrinsic evidence
not brought forward by the applicant, the applicant must be given an
opportunity to respond to that evidence. That is the minimal duty of procedural
fairness. In the application at bar, the Enforcement Officer relied on detailed
evidence about medical conditions in Jamaica that the applicant contested in an Affidavit of
Melinda Gayda, filed in support of the applicant’s successful motion for a stay
of removal.
[20]
I
question whether the Enforcement Officer ought to have conducted a “mini H&C”
by investigating the medical services available for the applicant in Jamaica before deciding whether
to defer the removal of the applicant pursuant to section 48 of the IRPA. The
decision with respect to deferral is not a “mini H&C.” The respondent
argues that a decision under section 48 is a “pressure cooker” decision with
tight time frames, and the Enforcement Officer should not be expected to
provide the applicant with an opportunity to respond to information obtained by
the Enforcement Officer in making the decision. The Court cannot agree. If the
Enforcement Officer is relying on extrinsic evidence, the duty of fairness
applies. However, in most situations the Enforcement Officer does not need to
rely on extrinsic evidence in making a decision. As I indicated, I do not think
the Enforcement Officer needed to obtain the information about the medical
services available in Jamaica before deciding whether
to defer the removal of the applicant.
[21]
With
respect to tight time frames, the applicant has been in Canada for 20 years,
and the duty of fairness should not be sacrificed because of an artificial
deadline established by the respondent for the applicant’s removal. There is no
harm in allowing the applicant another week or two in order to respond to
extrinsic evidence upon which the Enforcement Officer intends to rely. If that
extrinsic evidence is incorrect, the applicant will suffer great harm.
Mootness
[22]
Both parties urged the Court not to dismiss this application for
mootness. I do think the case is moot since, at this point of time as a result
of the stay, there is no effective removal order. However, I agreed to consider
this principle of procedural fairness since it is an important point of
contention between the parties and is not moot in that respect. At the same
time, I do not agree that this matter raises a serious issue of general
importance that has not already been decided by the jurisprudence. In my view,
the jurisprudence has established unequivocally that the duty of procedural
fairness applies to important extrinsic evidence being relied upon by an
administrative decision maker regardless of whether it is with respect to a
decision not to defer the removal or to some other decision under the IRPA. For
that reason, I will not certify any question in this application.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
This
application for judicial review is allowed, and the decision of the Enforcement
Officer is set aside and referred back to the respondent to undertake an
updated PRRA, and then, if necessary, a decision to remove the applicant.
“Michael
A. Kelen”
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