Docket: IMM-5123-13
Citation:
2014 FC 860
Ottawa, Ontario, October 17, 2014
PRESENT: The Honourable Madam Justice Gagné
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BETWEEN:
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AJEET SINGH
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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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AMENDED JUDGMENT AND REASONS
[1]
Mr. Ajeet Singh
seeks judicial review, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [Act], of a decision of the Canada
Minister of Canada Border Services Agency’s delegate [Removal Officer],
dated July 26, 2013, denying his request to defer his removal from
Canada to India as he required a heart operation that was scheduled the
following month. The surgery has since been performed and at least 180 days
have elapsed since then.
[2]
For the reasons discussed below, this
application for judicial review will be dismissed.
Background
[3]
The applicant is a citizen of India. He came to Canada in August 2011 on a work permit, and claimed refugee protection as
a young baptized Sikh religious singer and drummer, having suffered severe
torture. He started experiencing medical problems shortly thereafter.
[4]
On October 5, 2012, the Refugee Protection
Division of the Immigration and Refugee Board dismissed the applicant’s refugee
claim, finding that he did not have a credible fear of persecution, and,
alternatively, that he had an internal flight alternative in India. This Court did not grant leave and judicial review of that decision.
[5]
On June 5, 2013, the applicant was advised that
his removal was to take place on July 17, 2013.
[6]
On July 16, 2013, the applicant asked the
Removal Officer for a deferral of his removal because he was to have heart
surgery to replace an aortic valve. He claimed he would not be able to afford
this necessary surgery in India. He specifically requested a deferral of 180
days following his surgery date. The officer refused his request, as not enough
details had been provided by the applicant to explain that his medical
condition prevented him from traveling.
[7]
On July 17, 2013, the applicant was a “no show”
for his removal at the airport.
[8]
On July 26, 2013, the applicant was called for
another interview. He did not attend.
[9]
On July 30, 2013, the applicant was arrested and
advised that he was to be removed on August 2, 2013.
[10]
On August 2, 2013, he applied to the Court for a
stay of removal. However, this application was not presented as the respondent
accepted to administratively stay the applicant’s removal.
[11]
Shortly thereafter, the applicant was advised
that he was to be removed on August 11, 2013.
[12]
The applicant again requested a deferral of his
removal. The Removal Officer denied it once more, finding that there was no
reason to defer the deportation under section 25 or subsection 3(3) (f)
of the Act. This is the impugned decision before the Court.
[13]
On August 9, 2013, this Court granted the
applicant a stay of removal until the present application for leave and judicial
review is disposed of. The applicant was operated on in early September 2013.
The Impugned Decision
[14]
The Removal Officer found that the medical notes
submitted by the applicant do not give sufficient information to demonstrate
that the applicant could not travel by plane back to India. His need for aortic
valve replacement surgery does not prevent him from traveling. The Removal
Officer also noted that the applicant continued to work as a machinist while he
was asking for a deferral of his removal.
[15]
The Removal Officer relied on a report prepared
by Dr Patrick Thériault, a medical doctor employed by the Minister of
Citizenship and Immigration in Ottawa, finding that the applicant could travel
by airplane with his condition, and that Indian hospitals could provide the
treatment required by the applicant. Dr Thériault did not personally evaluate
the applicant, but relied on the evidence in the applicant’s file (his doctors’
diagnoses) to arrive at his opinion. The Removal Officer also adopted the
Doctor’s suggestion that the Minister should send a nurse on the flight with
the applicant, as well as provide him with oxygen during his passage to India.
Issues and Standard of Review
[16]
The applicant submits a number of issues which,
with all due respect, are not relevant to the case at bar. This application for
judicial review raises the following issues:
1.
Is the application now moot, as the applicant
has been operated on and as more than 180 days have elapsed since the surgery?
2.
If the applicant’s application is not moot, did
the Removal Officer’s conclusions fall within the range of possible and
acceptable outcomes?
Analysis
[17]
The doctors’ notes on behalf of the applicant
stress that he “should not attempt traveling nor any
activities requiring physical or emotional stress while waiting for his
surgery.” I have nothing before me to indicate that the applicant
has not recovered from his surgery, or, alternatively, that even upon recovery,
he would still be exposed to a risk to his life by boarding an airplane.
Moreover, the applicant originally requested a 180 day deferral from the date
of his surgery. The requested time period has lapsed. Accordingly, there is no
live issue before this Court.
[18]
I am aware that the applicant argues that
returning to the place where he allegedly was tortured could expose him to
considerable emotional stress, which may not be good for his heart. However,
when the Minister does indeed proceed with his deportation, there is nothing
preventing the applicant from requesting another administrative stay. In doing
so, he would have to provide convincing new medical evidence to the Minister,
indicating that his return to India would jeopardize his health, should that in
fact be the case. Before the Court, all there is is the applicant’s counsel
argument that the applicant will face a certain death should he be removed to India. That is speculative and unsupported by the evidence.
[19]
Therefore, this application for judicial review
is moot (Banga v Canada (Minister of Citizenship and Immigration), 2012
FC 1332; Baron v Canada (Minister of Public Safety and Emergency
Preparedness), 2009 FCA 81; Hakeem v Canada (Minister of Public Safety
and Emergency Preparedness), 2011 FC 1302); Joseph v Canada (Minister of
Public Safety and Emergency Preparedness), 2013 FC 562; Ren v Canada
(Minister of Public Safety and Emergency Preparedness), 2012 FC 1345).
[20]
The applicant’s counsel proposes the following
questions of general importance for certification:
1- What is the duty of a CBSA removals
officer in the presence of several requests from medical practitioners, in this
case cardiologists, that say that a person should not travel or suffer any
undue stress? Is there an obligation to seek medical advice in this situation?
What is the obligation of this agent of the state?
2- Does the decision-maker have an
obligation to inform herself fully before allowing a deportation that would put
the applicant’s life at risk under general administrative law principles or
following the Canadian Charter of Rights and Freedoms? Is it necessary for the
cardiologists involved to use the words ‘life-threatening’ for the CBSA agent
to check on the situation?
[21]
As those questions are all academic, they are
not dispositive of this case, nor would they be dispositive of an appeal; they
will not be certified (Zhang v Canada (Minister of Citizenship
and Immigration), 2013 FCA 168).
[22]
On September 16, 2014, Counsel for the
respondent asked the Court to modify the style of cause to replace the Minister
of Citizenship and Immigration by the Minister of Public Safety and Emergency
Preparedness as the respondent. The applicant does not oppose that request.
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