Date:
20130213
Docket:
IMM-7630-12
Citation:
2013 FC 153
Ottawa, Ontario,
February 13, 2013
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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NANCY GONZALEZ GONZALEZ
REGYNA MIRANDA VARAS GONZALEZ
(by her litigation guardian)
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Applicants
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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]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision by an Inland Enforcement officer of the Canada Border Services Agency
(the officer) on August 24, 2012, denying the applicants’ request for their
removal from Canada to be deferred.
[2]
The applicants request that the officer’s
decision be set aside and the application be referred back to the Canada Border
Services Agency (CBSA) for redetermination.
Background
[3]
The
applicant, Nancy Gonzalez Gonzales, (the principal applicant) and her daughter,
Regyna Miranda Vargas Gonzalez, are citizens of Mexico who arrived in Canada on January 16, 2009, fleeing domestic violence at the hands of the principal applicant’s
partner. They made a refugee claim which was ultimately rejected by the
Immigration and Refugee Board on November 17, 2009. An application for judicial
review was initiated, but leave was denied on February 18, 2010, as no
application record was ever filed (Court file IMM-6122-09).
[4]
The
applicants filed a humanitarian and compassionate (H&C) grounds application
for permanent residency on May 27, 2010 and a pre-removal risk assessment
(PRRA) application on June 11, 2010.
[5]
The
PRRA was rejected on September 9, 2010 and the H&C application was refused
on November 18, 2011.
[6]
The
principal applicant first expressed concern about her daughter’s medical
condition and the effect of removal to Mexico on October 5, 2010 and the
applicant and CBSA continued to exchange correspondence on this matter from
that point on.
[7]
On
March 14, 2012, the applicants filed an application for judicial review of the
refused H&C application (Court file IMM-2513-12). At this point, the
applicants retained new counsel at the Refugee Law Office.
[8]
CBSA
scheduled the applicants’ removal for March 30, 2012. The applicants made a
request to defer removal on March 19, 2012, which was rejected on March 27,
2012. The applicants filed two applications for judicial review relating to the
refusal to defer removal (Court files IMM-2939-12 and IMM-2980-12).
[9]
At
this point, the applicants reached an agreement with the Department of Justice
to withdraw the two applications relating to the request to defer in exchange
for CBSA deferring their removal until further notice. Those applications were
withdrawn on March 28, 2012.
[10]
The
applicants then decided to discontinue the application regarding the H&C
decision on the basis that it would be better to make a fresh H&C
application which would include evidence that had been omitted by previous
counsel in the first H&C application. That application was made on April
11, 2012.
[11]
CBSA
then scheduled the applicants’ removal for July 20, 2012. The applicants made a
request to defer removal on July 11, 2012, which resulted in the cancellation
of that scheduled removal to allow for sufficient time for CBSA to forward the
applicants’ medical documentation to the Citizenship and Immigration Canada (CIC)
Health Management Branch. The CIC medical officer informed CBSA that the principal
applicant’s daughter was medically fit for travel and that medical care was
available in Mexico.
[12]
CBSA
scheduled removal for August 8, 2012. The applicants filed this application for
judicial review on July 30, 2012. The CBSA again cancelled removal to allow
submissions from the applicants in response to CIC’s medical assessments.
[13]
After
receiving these submissions, CBSA then scheduled removal for August 28, 2012.
The applicants brought a stay motion on August 20, 2012.
[14]
On
August 27, 2012, Mr. Justice André Scott granted the stay. He concluded that
the officer had applied the correct test for determining whether to exercise
his limited discretion to defer on the basis of a pending H&C application,
but that the officer did err by relying on evidence found on the internet and
failing to afford the applicants with the opportunity to dispute this evidence
and also erred in respect of the considerations upon which he based his
decision.
Officer’s Decision
[15]
The
officer refused the deferral request on August 24, 2012. The officer’s notes to
file serve as reasons for the decision. The officer noted the four grounds upon
which the applicants requested a deferral of removal:
1. The principal applicant’s
daughter’s medical conditions;
2. The outstanding
H&C application;
3. Risk of domestic
violence in Mexico; and
4. The principal applicant’s
mental health.
[16]
The
officer then summarized the applicants’ immigration history, as described
above. The officer noted the applicants were under an enforceable removal order
and that the CBSA has an obligation under subsection 48(2) of the Act to
enforce removal orders as soon as is reasonably practicable. The officer noted
his limited discretion to defer removal.
[17]
The
officer first considered the applicants’ outstanding H&C application. The
officer noted an H&C application does not entitle the applicants to delay
removal. He noted that the current processing time for such applications is 30
to 42 months and that the application had been submitted after the applicants
were already removal ready. The officer acknowledged the applicants’ argument
that the first H&C application was flawed due to the incompetence of
previous counsel, an immigration consultant, but found that one is ultimately
responsible for one’s legal representation, including choice of counsel and
submissions by that counsel. He noted that CBSA did not make removal
arrangements while the first H&C application was in process.
[18]
The
officer then turned to the risk of domestic violence in Mexico. He noted that many of the risks identified in the request paralleled the risks asserted by
the applicants in their refugee claim and PRRA application. He also noted that
many of the documents submitted spoke to general country conditions and did not
highlight personalized risk.
[19]
The
officer did consider those documents that were not before the RPD or PRRA
officer. Two such documents described the ease with which any person in Mexico could determine the location of other Mexican nationals through the Federal
Electoral Institute’s records. The officer concluded that these documents only
spoke to general country conditions and contained speculative declarations
relying in part on uncorroborated third party information.
[20]
The
officer considered country conditions evidence highlighting violence against
women in Mexico and concluded there was no nexus between these documents and
the basis for the request to defer removal. An affidavit describing how the principal
applicant’s mother had received threatening phone calls was rejected by the
officer for a lack of insufficient objective evidence. The officer excerpted
the RPD’s and PRRA officer’s findings regarding the domestic violence. The
officer noted the applicants had received due process during their time in Canada and that the RPD’s determination had been upheld by this Court.
[21]
The
officer then considered the principal applicant’s mental health. He
acknowledged the letter from the principal applicant’s psychiatrist describing
her depression, anxiety, post-traumatic stress disorder and battered woman
syndrome, but noted that the report was based largely on self-reported symptoms
and that the principal applicant was referred to a psychiatrist by counsel. The
officer was sympathetic to the fact that the removals process is difficult, but
noted that a certain level of anxiety is inherent to the removals process and
that the principal applicant had provided insufficient objective medical
evidence to demonstrate that travelling to Mexico at this time would be
detrimental to her health, or that she would be unable to seek further medical
treatment in Mexico. The officer was therefore not satisfied a deferral was
warranted.
[22]
The
officer then turned to the medical conditions of the principal applicant’s
daughter. He acknowledged her numerous medical issues, including cerebral
palsy, global developmental delay, epilepsy and dystonia and the applicants’
submissions on the availability of care in Mexico. He also noted the CIC
medical opinion dated March 20, 2012, indicating the applicant daughter was fit
to fly and that Mexico had good medical and social care which she would be able
to access. In a later opinion dated July 20, 2012, a medical officer from CIC
also suggested a medical escort to assist during removal to Mexico.
[23]
On
July 25, 2012, a medical officer indicated after reviewing the applicants’
submissions that none of the applicant daughter’s medical conditions would be
considered a contraindication to air travel according to current standards. In
response, the applicant daughter’s doctor indicated her concern was not a
contraindication to air travel, but rather the lack of proper care available in
Mexico and the detrimental effect this would have on her health. The
applicants’ counsel also made submissions indicating the applicants’ concern
was not the mere existence of health care in Mexico, but her ability to access
it.
[24]
The
officer also excerpted correspondence from a CBSA staffer at the Embassy of
Canada in Mexico City describing an organization called Teleton that runs free
rehabilitation centers. In response, the applicants’ counsel indicated her
office had contacted Teleton directly and been told there are significant
waiting lists for services at each location and that Teleton did not provide
medication. Counsel also provided a letter from an employee of a Mexican
disability rights organization who had reviewed the principal applicant’s
daughter’s file and opined that it was in her best interest to remain in Canada.
[25]
The
officer noted that the applicants’ counsel had been inconsistent in describing
the care available in Mexico, initially describing it as non-existent, but then
later focusing on the inaccessibility of such care. The officer found the
country conditions evidence on lack of health care coverage in Mexico only referred to general conditions in Mexico and not to the principal applicant and her
daughter specifically.
[26]
The
officer also noted that the principal applicant’s daughter was not entitled to
public medical coverage in Canada, given the changes to the Interim Federal
Health Program. Although she was receiving medical service free of charge at
Black Creek Community Health Centre, she was not eligible for provincial health
coverage and there was no evidence she was receiving coverage under a private
medical insurance scheme.
[27]
The
officer acknowledged the applicants’ evidence regarding the waiting lists at
Teleton, but indicated he had performed a cursory internet search which yielded
other medical options that had not been impugned by counsel. He quoted from the
websites of “Patronato Peninsular” and “Pasitos de Luz”, which offer care to
disabled children.
[28]
The
officer found that counsel’s argument that the principal applicant would have
no choice but to institutionalize her daughter was speculative. He held that
the evidence before him did not establish that the applicant daughter would
lack available community based services.
[29]
The
officer also noted that he did not have the discretion to determine if an
individual should be removed from Canada, but was limited only to the timing of
removal. He noted that a number of the applicant daughter’s conditions are
permanent and that many predated her arrival in Canada. While he indicated he
was very sympathetic to her circumstances, he lacked jurisdiction to defer
removal indefinitely.
[30]
Finally,
the officer considered the principal applicant’s pregnancy. He noted there was
no indication in the doctor’s letter that she was medically unfit to fly, or
could not receive obstetric care upon her return to Mexico. He therefore
concluded a deferral was not appropriate in this case.
Issues
[31]
The
applicants submit the following points at issue:
1. Did the officer
err in relying on extrinsic evidence not disclosed to the applicants?
2. Did the officer
err in respect of the considerations upon which he based the decision and fail
to respect the evidence?
3. Did the officer
err in applying the incorrect test for the best interests of the child?
[32]
I
would rephrase the issues as follows:
1. What is the appropriate
standard of review?
2. Did the officer breach
procedural fairness?
3. Did the officer
err in refusing the request?
Applicants’ Written Submissions
[33]
The
applicants argue the standard of review for procedural fairness is correctness.
The applicants argue the officer relied on extrinsic evidence of charities in Mexico without disclosing it to the applicants, after having twice disclosed evidence to
the applicants for them to respond to. The website information was public, but
the applicants were denied a meaningful opportunity to deal with the evidence
in question.
[34]
The
applicants’ removal was cancelled on consent in March 2012 and one of the
issues between the parties was the use of extrinsic medical evidence. The
officer knew that extrinsic evidence should be disclosed for comment out of
fairness, but went on to conduct further research. The existence of these
charities was determinative of the issue of what health care was available to
the applicant daughter. The applicants could not reasonably be expected to
refute this evidence as it is not the kind of standard document that officers
can be expected to consult. The applicants acknowledge not all evidence
obtained from the internet is extrinsic and that an applicant would expect an
officer to consult common country condition sources such as the United States
Department of State (DOS) or Amnesty International. The applicants cannot be
expected, however, to anticipate and specifically refute every source on the
internet.
[35]
The
applicants further argue the officer erred in respect of the considerations on
which he based his decision and improperly dismissed evidence. The officer
failed to address the short-term best interest of the child by confusing the
availability of care with the child’s access to such care. The evidence before
him established that the care in Mexico was deficient, but also unavailable to
the principal applicant’s daughter. This deficiency is complicated by the
discriminatory treatment of patients with disabilities and many Mexican
families are forced to institutionalize their children due to the cost of
medication. Physical therapy for cerebral palsy is extremely limited. The principal
applicant would have no support to rely on for paying for help and is expecting
another child. The care available to the applicant daughter in Canada would not be accessible to her in Mexico. The medical opinions from CIC give no basis for the
conclusion that care will be accessible.
[36]
The
indefinite gap in health services facing the applicant daughter is contrary to
her short-term interests. Removing her from the wait lists when she has made
progress on them in Canada and forcing her to start at the bottom of such lists
in Mexico cannot be in her short-term interests. The officer finds that the
applicant daughter’s current care funding does not include medication, but
fails to explain how removing her to a complete lack of care in Mexico is
justified in comparison to paying for some services in Canada. A deferral
officer must consider what treatment a child affected by removal might actually
receive.
[37]
The
applicants finally argue that in considering the principal applicant herself,
the officer does not consider the effects of psychological harm resulting from
removal of her daughter. The officer erred by rejecting expert psychological
evidence without basis. The officer also failed to consider the effects of the principal
applicant’s pregnancy on her ability to care for her daughter. He also did not
consider the effect that having to avoid the principal applicant’s former
partner would have on her ability to access employment or her daughter’s
ability to access care.
Respondent’s Written Submissions
[38]
The
respondent submits there was no breach of procedural fairness, as the officer
did not rely on extrinsic evidence. The content of the duty of fairness for
removals officers is minimal given their statutory duty and the public interest
in the proper functioning of Canada’s immigration system. Fairness did not
require the officer to making further inquiries at all. The information about
two organizations, objected to by the applicants, was similar to what the
applicants had already been given an opportunity to respond to. It was publicly
available and obtainable to the applicants via a cursory internet search. The
applicants had a full opportunity to submit argument and evidence regarding the
availability of services and this fulfills any fairness requirement at the
final step of the removal process.
[39]
The
respondent further argues the officer had limited discretion to defer removal.
Deferral should be reserved for those applicants where failure to defer will
expose an applicant to the risk of death, extreme sanction or inhumane
treatment. Here, there is no medical impediment to either the principal applicant
or her daughter flying. It was open to the officer to conclude he was not
satisfied the applicant daughter would be unable to access medical care in Mexico.
[40]
The
respondent argues that inability to access medical care is not a short-term
impediment to removal. This Court has held such an inability is an on-going
problem properly addressed through the H&C process. The availability of better
care in Canada should not be grounds for deferral of a removal order.
[41]
The
respondent argues that the existence of a pending H&C application is not a
bar to removal. The discretion of a removals officer to defer removal pending
an H&C application is limited to where it was filed in a timely manner and
remains outstanding due to inordinate delay in processing. The current
processing time is 30 to 42 months, so a decision is not imminent. There is no
evidence of bad faith or negligence.
[42]
The
respondent points out that in the order granting a stay, Mr. Justice Scott
agreed that the officer applied the correct test for the risks faced by the
applicants. The evidence before the officer was clear that state protection
from domestic violence, as well as an internal flight alternative and medical
service, were available to the applicants. The applicants attempt to rely on
general country conditions and uncorroborated third-party information regarding
conditions in Mexico. The risks identified closely paralleled the risks brought
forward in the RPD and PRRA claims. There was no objective evidence that the
former partner of the principal applicant was a police officer or that he
continued to have an interest in locating the principal applicant.
[43]
The
respondent argues the psychological evidence pertaining to the principal applicant
did not warrant a deferral. The officer made clear his concerns with the report
tendered as evidence. As in Palka v Canada (Minister of Public Safety and
Emergency Preparedness), 2008 FCA 165 at paragraph 17, [2008] FCJ No 707,
the report was based on a single consultation made for the purpose of an
H&C application, took place after a referral from counsel, did not contain evidence
of follow-up treatment and concerned conditions inherent to the removals
process.
[44]
A
removals officer’s obligation to consider the best interests of the child is
limited to circumstances in which there is no practical alternative to
deferring removal in order to ensure care and protection of the child. This is
not the case here, as the child would be in the care of her mother and medical
care is available in Mexico. The officer reasonably considered the best
interests of the child. There was no evidence the principal applicant’s
pregnancy would render her incapable of caring for her daughter.
Analysis and Decision
[45]
Issue
1
What is the appropriate
standard of review?
Where previous jurisprudence
has determined the standard of review applicable to a particular issue before
the court, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[46]
It
is trite law that the appropriate standard of review for issues of procedural
fairness is correctness (see Wang v Canada (Minister of Citizenship and
Immigration), 2008 FC 798 at paragraph 13, [2008] FCJ No 995 and Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at paragraph 43). No deference is owed to decision
makers on these issues (see Dunsmuir above, at paragraph 50).
[47]
Other
than in matters of procedural fairness, the standard of review applied to
removals officers on a deferrals request is reasonableness (see Ortiz v Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 18 at paragraph
39, [2012] FCJ No 11). In reviewing the officer’s decision on the standard of
reasonableness, the Court should not intervene unless the officer came to a
conclusion that is not transparent, justifiable and intelligible and within the
range of acceptable outcomes based on the evidence before it (see Dunsmuir
above, at paragraph 47 and Khosa above, at paragraph 59).
[48]
Issue
2
Did the
officer breach procedural fairness?
The parties are in agreement
that the officer’s reliance on frequently used country conditions evidence,
such as an annual DOS report, without disclosing it to the applicants would not
constitute a breach of the duty of the fairness. Therefore, the disputed fairness
issue is whether the two websites of Mexican health agencies fall into the
category, of “the kind of standard documents that applicants can reasonably
expect officers to consult” (see Mazrekaj v Canada (Minister of Citizenship
and Immigration), 2012 FC 953 at paragraph 12, [2012] FCJ No 1016).
[49]
The
respondent points to other evidence the applicants had access to on the point
of health care in Mexico. The officer, however, did not rely solely on that
evidence for his finding on health care. If the general CIC evidence on this
point was not sufficient for the officer to make his finding, it is unclear why
it was sufficient to disclose only that evidence to the applicants. As the
applicants point out, there was an extended exchange of evidence and
submissions, in an admirable display of procedural fairness. The respondent has
given no reason why that pattern could not continue.
[50]
A
removals officer cannot be responsible for considering the entirety of the mass
collection of information available online when deciding a request. Similarly,
the applicants cannot be expected to rebut all possible online evidence in their
submissions. The applicants cannot also be expected to make submissions on
every single health care provider in Mexico in anticipation the officer will
point to any of them in his decision.
[51]
Indeed,
the record in this case shows how the officer’s reliance on a previous specific
health clinic, Teleton, was very effectively rebutted through submissions from
the applicants when it was disclosed to them. In my view, it is clear that the
duty of fairness was violated, limited as that duty may be in the context of
removals.
[52]
Given
my conclusion on this point, it is not necessary to answer the third issue. The
application is allowed and the matter is returned to the CBSA for
redetermination.
[53]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
allowed, the decision of the officer is set aside and the matter is referred to
a different officer for redetermination.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
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48.
(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.
72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
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48.
(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.
72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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