Date:
20130422
Docket:
IMM-2983-12
Citation:
2013 FC 405
Toronto, Ontario,
April 22, 2013
PRESENT: The
Honourable Madam Justice Heneghan
BETWEEN:
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ALFONSO RUSSO
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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
INTRODUCTION
[1] Mr. Alfonso
Russo (the “Applicant”) seeks judicial review of the decision of S. Behrue (the
“Officer”) of the Canada Border Services Agency (the “CBSA”). In that decision
dated March 29, 2012, the Officer refused the Applicant’s request for deferral
of his removal from Canada that was scheduled for March 30, 2012. Upon motion,
the removal was stayed by Order of Justice Shore on March 29, 2012.
BACKGROUND
[2] The
Applicant came to Canada in 1967 as a permanent resident, along with his
family. He was ten years old at the time. He has resided in Canada since 1967. The Applicant has a history of mental health issues. He was diagnosed as Bipolar
Type II in December 2011 and has been prescribed anti-depressant and
anti-psychotic medication to deal with that illness.
[3] In July
2007, the Applicant was convicted of assault with a weapon. Allegedly, the
charge arose from an incident in a store when the Applicant waved a fondue fork
at a store clerk. It appears that this behaviour was related to his mental
illness. Justice Shore referred to this event in his Order granting a stay of
removal.
[4] The
Applicant failed to appear for an interview in December 2007. On July 25, 2008,
the Applicant was found inadmissible pursuant to paragraph 36(1)(a) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”) and was ordered
deported.
[5] An arrest
warrant for removal was issued on May 19, 2009. In June 2009, the Refugee Protection
Board, Immigration Appeal Division (the “IAD”), appointed a designated
representative, pursuant to section 167(2) of the Act to assist the Applicant
in his proceedings before it. In August 2009, the IAD issued a two-year
conditional stay of the deportation order. One condition of the stay was that
the Applicant was to be supervised by the Toronto Bail Program. The Applicant
failed to appear for oral interviews before the IAD in January 2010 and April
2010.
[6] By letter
dated April 21, 2010, that Program withdrew its supervision because the
Applicant had stopped taking his medication and was increasingly uncooperative.
The CBSA requested a review of the conditions of the stay of the deportation
order on September 22, 2010.
[7] The
Applicant failed to appear at a hearing before the IAD scheduled for October
24, 2011. On October 24, 2011, the IAD cancelled the stay of the removal order
and dismissed the Applicant’s appeal. On November 17, 2011, he was
arrested and detained. He applied for a Pre-Removal Risk Assessment on January
9, 2012. A negative decision was rendered in this regard on February 13, 2012.
[8] The
Applicant submitted a request for deferral of his removal on March 26, 2012,
which was refused on March 29, 2012.
[9] In refusing
to defer the Applicant’s removal, the Officer noted that the Applicant had
applied for permanent residence in Canada on humanitarian and compassionate
(“H&C”) grounds only four days before his scheduled removal. He
found that given the processing time for such applications, no decision was
imminent. He also said that some of the Applicant’s actions seemed to indicate
a wanton, deliberate, and calculated disregard for the immigration process.
[10] The Officer
considered the Applicant’s mental health. He had before him a letter from a
general practitioner. The Officer afforded this letter little weight on the
grounds that it was undated, and as such, it was not clear if it reflected the
Applicant’s current condition. I note, however, that this letter is in fact dated
and the date is March 26, 2012.
[11] As well, the
Officer noted that the removals officer had inquired with the Migration
Integrity Assistant (“MIA”) in Rome who reported that if the Applicant had a
medical condition and no family or support in Italy, he would be admitted to
the nearest hospital, and then to a long-term care facility. The CBSA provided
the Applicant with information about a shelter near the airport in Rome and arranged an escort to Italy and a week’s worth of medication.
SUBMISSIONS
[12] The
Applicant argues that the Officer improperly relied on extrinsic evidence which
was not disclosed to him, thereby giving rise to a breach of procedural
fairness. This evidence consisted of the opinion from the MIA in Rome; a letter
from a Mr. Sharp with the Toronto Bail Program suggesting that the Applicant
does not comply with his bail conditions and that one of his brothers in Canada
wants him returned to Italy; an undisclosed note in the Certified Tribunal
Record (“CTR”) that suggests the Applicant would be given asthma medicine to
take to Italy rather than medication for his psychiatric conditions; and
finally, information from the Italian consulate in Italy that suggests a lack
of available facilities in Italy to provide care for the Applicant.
[13] The
Applicant argues that the CTR is incomplete because although the Officer refers
to correspondence dated March 16, 2012, with the MIA in Rome, the CTR does not
include any correspondence on that date or containing the direct quotation
relied on by the Officer. The Officer relied on this correspondence to conclude
that medical care would be available to the Applicant.
[14] The
Applicant submits that the omission of material evidence from a CTR is
sufficient ground to overturn a decision, relying on the decision in Li v. Canada (Minister of Citizenship and Immigration) (2006), 54 Imm.L.R. (3d) 189. He
argues that the missing information is important because other documents in the
CTR contradict the Officer’s finding as to the availability of care. The
Officer concluded that he “would” be placed in a long-term care facility while
the MIA correspondence says that he “may” be placed in such a facility.
[15] The
Applicant further argues that the Officer ignored relevant evidence, that is,
evidence about his mental health condition. He also submits that the Officer
made unreasonable conclusions in light of the evidence, in particular in
finding that the IAD had considered H&C factors and in finding that the
Applicant was aware of the nature of his immigration proceedings.
[16] Finally, the
Applicant also submits that the Officer’s reasons are inadequate and fail to
meet the standard of justification, transparency, and intelligibility as
discussed in Dunsmuir
v. New Brunswick,
[2008] 1 S.C.R. 190 at para. 47 and Okbai v. Canada (Minister of Citizenship
and Immigration) (2012), 405 F.T.R. 315 at paras. 23-24.
[17] The Minister
of Citizenship and Immigration (the “Respondent”) submits that the Officer
committed no breach of procedural fairness and that the decision to refuse
deferral of removal is reasonable, having regard to the limited discretion
granted by section 48 of the Act. While the Officer may consider compelling or
special personal circumstances, he is not authorized to consider H&C
factors in deciding whether to defer removal and an outstanding H&C
application is no bar to removal.
DISCUSSION AND DISPOSITION
[18] The first
matter to be addressed is the applicable standard of review. For questions of
procedural fairness, the standard is correctness; see the decision in Canada (Minister of Citizenship and
Immigration) v. Khosa,
[2009] 1 S.C.R. 339 at para. 43.
The standard of review for a decision refusing to defer removal is
reasonableness; see the decision in Baron v. Canada (Minister of Public Safety
and Emergency Preparedness), [2010] 2 F.C.R. 311 (F.C.A.) at para. 25.
[19] The
Applicant raises two issues of procedural fairness, that is, reliance by the
Officer on extrinsic evidence without giving him an opportunity to respond and
the omission of material from the CTR.
[20] As a general
rule, evidence that is otherwise publicly available is not considered
“extrinsic” evidence. In this regard I refer to the decisions in Jiminez v. Canada (Minister of Citizenship and Immigration), 2010 FC 1078 at para. 19 and Level
v. Canada (Minister of Public Safety and Emergency Preparedness) (2008),
324 F.T.R. 71. However, the extrinsic evidence at issue here is not generally
available to the public. Some of the documents relied on by the Officer
concerned only the Applicant, for example the letter from the Toronto Bail
Program and the correspondence from the MIA in Italy. In my opinion the failure
to disclose this extrinsic evidence was a breach of procedural fairness.
[21] The absence
of documents from the CTR is also problematic. I agree with the Applicant that
the missing information is material and highly relevant. The Officer made a
clear finding that adequate health care would be available for the Applicant in
Italy, yet the document upon which he purportedly relied is not in the
record. The Applicant is suffering from a severe mental illness. It is not
sufficient for the Officer to make a statement about the availability of health
services for a severe mental illness without being able to show the evidence he
relied upon, and the record is silent in that regard. This is a reviewable
error against the standard addressed in Li, supra, para. 15.
[22] The Officer,
in my opinion, failed to appreciate the personal circumstances of the
Applicant, the critical factor of his illness that led to the criminal charge
against him and the loss of the stay of deportation by the IAD. The only
recourse available to the Applicant to stay in Canada is his pending H&C
application which is based upon his personal circumstances, including the
length of time he has been in Canada.
[23] The Officer
was provided with a copy of the Applicant’s H&C application, as part of the
documentation submitted in support of the deferral request. In his decision
upon the deferral request, the Officer noted that the H&C submissions
advanced by Counsel closely paralleled those considered by the IAD. The Officer
commented specifically that the IAD had considered the Applicant’s mental
health. The Officer noted that this seemed to be the prevailing H&C factor.
[24] The Officer
failed to appreciate the evidence before him. He had a letter from the
Applicant’s doctor that was dated March 26, 2012. The Officer dismissed this
letter out of hand, saying that “I note that this letter is undated and therefore
I am unable to assess if it is a current reflection of Mr. Russo’s current
medical condition.”
[25] The letter
is dated March 26, 2012. It says that the Applicant suffers from major
depressive disorder with psychotic features and that he does not have the
coping skills to live in a country he has not been in for many decades. The
deferral request is also dated March 26, 2012. It is hard to imagine what more
the Officer may have wanted in terms of timeliness.
[26] In my view,
the Officer erred by assuming that the Applicant’s H&C submissions had been
considered by the IAD. Those submissions were not presented to the IAD whose
most recent involvement with the Applicant dealt only with the termination of
the stay of deportation. That stay had been granted by the IAD in August 2009.
The Officer’s conclusions relative to the H&C considerations relevant to
the Applicant were not reasonable.
[27] It is not
necessary for me to fully address the last argument raised by the Applicant,
that is, the argument concerning the sufficiency of the Officer’s
reasons. In light of my observations above, I have concluded that the Officer’s
decision does not meet the standard of reasonableness as discussed in Dunsmuir,
supra.
[28] In the
result, this application for judicial review is allowed, the Officer’s decision
is set aside and the matter is remitted to another officer for determination.
There is no question for certification arising.
JUDGMENT
This application for
judicial review is allowed, the Officer’s decision is set aside and the matter
is remitted to another officer for determination. There is no question for
certification arising.
“E. Heneghan”
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