Date:
20130621
Docket:
IMM-3477-13
Citation:
2013 FC 697
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
this 21st day of June 2013
PRESENT: The Honourable Mr. Justice Roy
BETWEEN:
SUZANY CHARITO
MENDEZ VALDEZ
CHRISTIAN
FERNA MENDEZ
KIANA SOLYAMI
DONIS
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS
FOR ORDER AND ORDER
[1]
Each time an issue must be decided it becomes a
challenge because rarely are solutions clear-cut. There are cases that involve
particular circumstances which make the decision-making even more burdensome. This
is one of them.
[2]
The
principal applicant is requesting a stay of the removal order to be enforced on
June 25, 2013. She is the mother of the two other applicants, her young
children.
[3]
The
principal applicant is a citizen of Guatemala; the two other applicants are
American citizens. The principal applicant left her country in 2000; she lived
in the United States until she arrived in Canada on November 14, 2009, at the point
of entry in Stanstead, Quebec. At the time, she and her family were coming from
Florida.
[4]
The
evidence shows that the reason for the family’s arrival in Canada was medical
treatment. The applicant clearly suffers from a serious renal disorder
requiring her to receive hemodialysis treatments three times a week. The
medical evidence established that, without treatment, she would die within four
to seven days. Indeed, upon her arrival in Canada in November 2009, she had undergone
treatment in the United States three days before. Her state was so precarious
that she was immediately taken to the Centre hospitalier de l’Université de
Sherbrooke where she underwent emergency dialysis. Medical follow-up was
provided by the institution and the numerous letters contained in her medical
record from practitioners, including those from the Head of (the Division of)
Nephrology, all stress the seriousness of the problems experienced by the principal
applicant, describing them as end-stage renal disease.
[5]
Upon
their arrival in Canada, the applicants made a claim for refugee protection, which
was rejected on September 15, 2011. Leave for judicial review was denied
on February 4, 2012. A pre-removal risk assessment application also proved
unsuccessful on August 6, 2012.
[6]
An
application for permanent residence on humanitarian and compassionate grounds
was filed on February 4, 2013. It is reported that no
decision has been rendered as yet.
[7]
A
deportation order was issued on April 19 and the deportation was scheduled to
take place on June 25, 2013. In the face of that order, an application for a
so-called “administrative” stay was filed on May 2; the application was dismissed
on May 6. An application for leave and judicial review of that decision was
filed on May 15, 2013. No decision has yet been made. That is, in fact, the
legal remedy underlying this application for stay.
[8]
Before
considering the application for a stay of removal, it is necessary to comment
on the status to date. It seems clear from the record that the principal
applicant came to Canada to benefit from, some would say take advantage of, the
public health system. In addition, her immigration situation, which was
precarious when she came to Canada claiming refugee status, has now become that
of a person without status. She seeks to obtain permanent residence on humanitarian
and compassionate grounds.
[9]
As
argued by counsel for the respondent, the applicant has known for months now
that she is subject to deportation to her country. She knows better than anyone
how precarious the state of her health is. However, it is clear from the record
that instead of seeking to ensure that medical resources are available to her
upon her arrival in Guatemala, if she were to return, she rather endeavoured to
show that those resources would not be there upon her arrival.
[10] Nor
is the evidence any more satisfactory on the government’s end. The attempt to demonstrate
that resources may exist in Guatemala is late and insufficient in my opinion. After
all, the evidence shows that access to hemodialysis is a matter of life or
death. Certainty as to the availability of resources appears crucial to me. Not
only is it a matter of life or death, but death could be imminent if treatment
is not available next week.
[11] Counsel
for the government, and this is entirely to her credit, made an effort to inform
the Court. She argues that medical resources exist, but the evidence in that
regard is sparse. Said evidence consists in a Web site that points to the existence
of four dialysis centres in Guatemala and succinct e-mails from the Regional
Medical Office of Citizenship and Immigration Canada which state, without
elaborating, that “[D]ialysis and nephrology specialist care are available in
Guatemala” and provide, on June 17, 2013, the names of the specialists the
principal applicant may try to contact in Guatemala. Moreover, counsel states
that treatment would be free, referring to a Web site in Spanish of which a part
translated by a Department of Justice counsel.
[12] Although
the Court is indebted to counsel for her efforts, the fact remains that, for a
matter of life or death, possibly in the short term, there is a form of
improvisation caused in part only by the principal applicant’s inertia. To
bring this into focus, it is sufficient to note that she endeavoured to
emphasize the seriousness of her health condition and made a general argument about
the lack of resources in Guatemala, supported by a letter dated May 20, 2013. Said
letter, addressed to the principal applicant’s treating physician in Canada, allegedly
came from the “Vice-Minister of Health” of Guatemala; she advises
that “[T]he expenses of the process involving hemodialysis are so high, and the
machines operating sometimes are not enough to cover all the patients, and the attention
should prioritize the health conditions in every case” (English translation
of the original letter written in Spanish). The letter concludes, also
succinctly, that hemodialysis is “limited in some cases to once per week.”
[13] It is
in this context that it is necessary to decide whether a stay should be granted.
The well-known test in the subject matter must be applied:
- Is there a
serious issue to be tried before the appropriate decision-maker;
- Will
irreparable harm be caused to the applicant;
- Does the balance of
convenience favour the
applicant.
See Toth v Canada (Minister of Employment
and Immigration) (1988), 86 NR 302 (FCA) and RJR -MacDonald Inc v
Canada (Attorney General), [1994] 1 S.C.R. 311. In order for the applicant to
succeed, she must satisfy the Court that she meets each element of the tripartite
test.
[14] It
seems to me that the status of the record is such that the principal applicant meets
the irreparable harm element. To date, there is insufficient evidence in the
record to support the finding that, if returned to Guatemala, her life would
not be in jeopardy. In other words, the evidence is at best equivocal, in
addition to being sparse, in regard to that issue.
[15] The balance
of convenience issue certainly makes it possible to weigh the importance for the
Ministers of maintaining the integrity of the immigration system. However, balanced
against that is the principal applicant’s health condition. As I indicated
earlier, the evidence presented by the government regarding the health care services
relevant to our case must be improved before making a finding. Although inertia
can be held against the principal applicant, I am not prepared to find that she
comes before this Court in bad faith with dirty hands. The principal applicant
is destitute and vulnerable. Furthermore, as I explained at the hearing, if a
stay is granted in this case, the onus will be on the principal applicant to make
the efforts required to obtain the necessary services for her condition if the
most recent steps she has taken in the immigration process prove unsuccessful. The
granting of a stay would not be a guarantee that other stays would be granted
as well.
[16] If it
is true, as she claims, that the principal applicant is not a danger to Canada,
it is nevertheless true that she entered Canada illegally with a view to obtaining
health care services. The record shows that she does not work and does not have
support from a spouse. Government resources are being made available to a person
and her family who have entered the country illegally. In my view, what
concludes the matter is the still uncertain situation on the access to heath
care services in the country where she would be returned. While the integrity
of the immigration system should be weighed against the use of Canadian government
resources, the fact remains that if the applicant were returned to Guatemala without
having access to treatment she requires, the consequence would be tragic. Thus,
the balance of convenience, at this point, is in her favour. Of course that
balance would be broken if the evidence of availability of care is improved and
reasonable steps are not taken by the applicant.
[17] The
question then remains whether there is a serious issue to be tried, thus
providing grounds for a stay of the removal order. The three elements of the
tripartite test must be satisfied in order for the applicants to be granted the
stay.
[18] The
legal remedy underlying the application for stay on which the Court must rule
is the application for leave and judicial review of the refusal to grant an administrative
stay by the Border Services Officer. The enforcement officer refused the stay on
May 6, 2013. The issue to be resolved is therefore whether there is a serious
issue to be tried in light of this judicial review.
[19] The
tripartite test for a stay, as for other areas of law, provides that the issue shall
be deemed serious if it is not frivolous, vexatious or futile. The respondent
argues that the test in this type of case is rather that of reasonableness. I
agree. This Court’s decision in Wang v Canada (Minister of Citizenship and Immigration),
2001 FCT 148, [2001] 3 FC 682 [Wang], is an excellent example of the
applicants’ burden when challenging a removal officer’s refusal to stay removal
and seeking to stay their removal pending judicial review. I reproduce paragraph
10 of Wang:
[10] The Supreme Court of
Canada has held that the test of “serious issue to be tried” is simply that the
issue being raised is one which is not frivolous. RJR-MacDonald Inc. v.
Canada (Attorney General), [1994] 1 S.C.R. 311 at para 44, [1994] S.C.J.
No. 17. On the other hand, to succeed in the underlying judicial review, the
applicant will have to show that the decision not to defer was subject to
review for error of law, jurisdictional error, factual error made capriciously,
or denial of natural justice. Federal Court Act, R.S.C. 1985 c. F-7
subsection 18.1(4). The result is that if the stay is granted, the relief
sought will have been obtained on a finding that the question raised is not
frivolous. If the stay is not granted and the matter proceeds to the
application for judicial review, the applicant will have to demonstrate a
substantive ground upon which the relief sought should be awarded. The
structure of the process allows the applicant to obtain his/her relief on a
lower standard on the interlocutory application, notwithstanding the fact that
the relief is the same as that sought in the judicial review application. It is
this congruence of the relief sought in the interlocutory and the final application
which leads me to conclude that if the same relief is sought, it ought to be
obtained on the same basis in both applications. I am therefore of the view
that where a motion for a stay is made from a Removal Officer’s refusal to
defer removal, the judge hearing the motion ought not simply apply the “serious
issue” test, but should go further and closely examine the merits of the
underlying application.
[20] Without
disposing of the underlying judicial review, the “serious issue” element is
examined not to find out whether the issue is not futile but rather to determine
the likelihood that the underlying application could be allowed. As Justice
Pelletier, as he then was, explained in Wang, above, a higher bar is
necessary when the application for a stay seeks to obtain the same remedy as
that sought by the underlying judicial review.
[21] In
the case at bar, the principal applicant claims that the Removal Officer did
not adequately consider that she is not a danger. Furthermore, the best
interests of the children and the family’s integration into Canadian society should
have been in their favour. In my view, those arguments may have some weight in
the application for permanent residence on humanitarian and compassionate
grounds. However, the Removal Officer’s discretion is very limited at that stage.
Section 48 of the Immigration and Refugee Protection Act, SC 2001, c 27,
was recently amended to better delineate this type of discretion:
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 the order must be enforced as soon as possible.
|
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 exécutée dès que possible.
|
In my view, it is unlikely that
such arguments could be successful; this could not be a serious issue.
[22] I
believe the other two arguments have a better of chance of being accepted upon
judicial review, namely, the assessment of the medical evidence and the existence
of an application for permanent residence on humanitarian and compassionate
grounds.
[23] The
Removal Officer indicates that he was satisfied with the “medical evidence,”
which I consider to be very limited. When you look at this evidence, taken from
Web sites whose value has not been established, add to it the cursory
statements made by Citizenship and Immigration Canada’s Medical
Services (see
Arrechavala de Roman v Minister of Public Safety and Emergency Preparedness,
IMM-9467-12, order of September 14, 2012), and compare it to the needs of the applicant
to stay alive, it seems to me that it is far from clear whether if the applicant
were to return to Guatemala on June 25, 2013, she would receive the care that
is vital to her. The evidence provided by the respondent must be improved to
bridge the gap between the respondent’s evidence of the existence of certain
resources, nothing more, and the real needs of the principal applicant. Furthermore,
this gap that needs to be bridged is somewhat amplified by the equivocal letter
of the Vice-Minister of Health of Guatemala.
[24] There
is a likelihood that the underlying application for judicial review of the refusal
to grant an administrative stay could be successful, thus allowing for an
adequate, and more complete, examination when processing the application for permanent
residence on humanitarian and compassionate grounds. The government
could provide evidence of availability, to the degree required, of the medical
care the principal applicant requires in the short term to survive. Indeed, all
relevant considerations could be assessed, including the principal applicant’s
inertia or, worse, her resistance, if any.
[25] In
light of the ambiguous, and insufficient, evidence and the type of issue under
consideration, the Removal Officer’s decision could likely be reversed. This is
a serious issue within the meaning of the three-part test. With respect, the
unique facts of the case and the vulnerable situation in which the principal
applicant would be placed requires a more in-depth examination, with higher
evidence than that provided to date.
ORDER
Therefore, the Court
orders a stay of the removal scheduled for June 25, 2013, pending the Court’s
final decision on the application for leave and the judicial review of the refusal
to grant an administrative stay, with said negative decision being rendered on
May 6, 2013.
“Yvan Roy”
Certified
true translation
Daniela
Guglietta, Translator
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3477-13
STYLE OF CAUSE: SUZANY CHARITO MENDEZ
VALDEZ, CHRISTIAN FERNA MENDEZ, KIANA SOLYAMI DONIS v THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE
OF HEARING: Montréal,
Quebec
DATE
OF HEARING: June
17, 2013
REASONS FOR JUDGMENT
AND
JUDGMENT: Roy
J.
DATED: June
21, 2013
APPEARANCES:
Juliana Rodriguez FOR THE APPLICANT
Michèle Joubert FOR THE RESPONDENT
SOLICITORS
OF RECORD:
Caza,
Gagnon, Lawyers FOR THE APPLICANT
Sherbrooke,
Quebec
William
F. Pentney FOR
THE RESPONDENT
Deputy
Attorney General of Canada