Docket: IMM-3754-16
Citation:
2017 FC 351
Ottawa, Ontario, April 7, 2017
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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GERALD DESMOND
WELLS
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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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JUDGMENT AND REASONS
I.
Overview
[1]
Gerald Desmond Wells has brought an application
for judicial review of a decision of an enforcement officer with the Canada
Border Services Agency. The enforcement officer refused Mr. Wells’ request to
defer his removal from Canada pending determination of his application for
permanent residence on humanitarian and compassionate [H&C] grounds.
[2]
For the reasons that follow, I have concluded
that the enforcement officer’s decision did not take account of an exigent
personal circumstance facing Mr. Wells should he return to Trinidad and Tobago,
namely the potential unavailability of treatment or medication for his serious
mental health condition. The decision was therefore unreasonable, and the
application for judicial review is allowed.
II.
Background
[3]
Mr. Wells is a citizen of Trinidad and Tobago.
He arrived in Canada in 1997 at the age of sixteen. He subsequently attained
permanent resident status as the spouse of a Canadian citizen. He is the father
of four Canadian-born children, all of whom live with their respective mothers:
three in Winnipeg, Manitoba and one in London, Ontario. Mr. Wells lives in
Mississauga, Ontario, near his own mother who is a Canadian citizen.
[4]
Mr. Wells has been convicted of five criminal
offences. The most serious of these was possession of cocaine for the purpose
of trafficking, for which he received a sentence of 12 months’ imprisonment in
2012. This led to a finding of inadmissibility based on criminality. Despite
being subject to a removal order since 2012, Mr. Wells did not file his H&C
application until July 15, 2016.
[5]
Mr. Wells has been diagnosed with anxiety,
agoraphobia and severe depression. He says that if he is removed to Trinidad
and Tobago, he will be unable to obtain treatment or medication for his mental
health condition, and his life will be at risk.
[6]
Mr. Wells received a pre-risk removal risk
assessment [PRRA] in August 2015. The officer who conducted the PRRA concluded
that Mr. Wells would not be at risk if he returned to Trinidad and Tobago. Mr.
Wells’ application for judicial review of that decision was dismissed by
Justice Ann Marie McDonald on June 21, 2016 (Wells v Canada (Citizenship and
Immigration), 2016 FC 697). Justice McDonald refused Mr. Wells’ request to adduce
as evidence a number of news articles describing deficiencies in the public
health system in Trinidad and Tobago, particularly the lack of treatment or
medication for his mental health condition. She found that the articles had not
been before the PRRA officer, and therefore did not form part of the record.
Justice McDonald concluded as follows (at para 17):
[T]he Applicant’s
PRRA application was rejected for want of evidence. The Applicant adduced
evidence of his mental health issues, but he did not establish that the
situation in Trinidad and Tobago was such that his mental health issues
necessitated protection under sections 96 or 97 of the Immigration and
Refugee Protection Act, SC 2001, c 27. Nor did this evidence establish that
the Applicant would be unable to obtain adequate care in Trinidad and Tobago.
[7]
On August 19, 2016, Mr. Wells was served with a
Direction to Report for removal on September 10, 2016. He requested deferral of
his removal pending determination of his H&C application.
III.
Decision under Review
[8]
In a decision dated September 2, 2016, the
enforcement officer found that the average processing time for an H&C
application was 38 months, and a decision on Mr. Wells’ application was
therefore not imminent. The officer stated: “I note
that while the mental health system in Trinidad is different than in Canada, it
does exist and no evidence was submitted to this office to show that Mr. Gerald
Desmond WELLS would be denied treatment for his condition.”
[9]
The officer noted that many of the submissions
made by Mr. Wells in support of his deferral request had previously been
addressed by the PRRA decision. The officer concluded that Mr. Wells’ removal
from Canada would not subject him to “risk to life,
punishment or disproportionate treatment”. The officer therefore refused
Mr. Wells’ request to defer removal.
IV.
Issue
[10]
The sole issue raised by this application for
judicial review is whether the enforcement officer’s decision to refuse Mr.
Wells’ request to defer his removal from Canada was reasonable.
V.
Analysis
[11]
An enforcement officer’s decision to refuse a
request to defer removal is subject to review by this Court against the
standard of reasonableness (Baron v Canada (Minister of Public Safety and
Emergency Preparedness), 2009 FCA 81 at para 25 [Baron]). The Court
will intervene only if the decision falls outside the “range
of possible, acceptable outcomes which are defensible in respect of the facts
and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
[12]
A removal order must be enforced as soon as
possible (Immigration and Refugee Protection Act, SC 2001, c 27, s 48(2)
[IRPA]). An enforcement officer’s discretion to defer removal is limited and
should be exercised only in respect of circumstances that are the direct
consequence of removal (Meneses v Canada (Public Safety and Emergency
Preparedness), 2013 FC 713 at para 5; Baron at para 49). While an
enforcement officer may consider a wide range of factors in deciding to defer
removal, deferral should be construed narrowly against an enforcement officer’s
positive obligation under the IRPA to enforce the order (Baron at para
51; Wang v Canada (Citizenship and Immigration), [2001] 3 FC 682, [2001]
FCJ No 295 at paras 43-48 [Wang]). As Justice Nadon held in Baron
at paragraph 51, citing Justice Pelletier in Wang:
In order to
respect the policy of the Act which imposes a positive obligation on the
Minister, while allowing for some discretion with respect to the timing of a
removal, deferral should be reserved for those applications where failure to
defer will expose the applicant to the risk of death, extreme sanction or
inhumane treatment. With respect to H&C applications, absent special
considerations, such applications will not justify deferral unless based upon a
threat to personal safety. [Emphasis omitted]
[13]
Mr. Wells says that the enforcement officer’s
statement that “no evidence was submitted to this
office to show that Mr. WELLS would be denied treatment for his condition”
is contradicted by the news articles he submitted. These articles described
serious shortcomings in the provision of mental health services in Trinidad and
Tobago, particularly the scarcity of treatment and medication. According to the
evidence, medication for the treatment of mental health conditions is not
covered by social services in Trinidad and Tobago.
[14]
Mr. Wells argues that the enforcement officer
also failed to consider that he has been diagnosed with a mild intellectual
disorder. He has previously attempted suicide, and he continues to have
suicidal ideation. His children act as a deterrent against these harmful ideas,
and his mother helps him to adhere to his treatment plan. He would not be able
to afford either treatment or medication in Trinidad and Tobago. He is unable
to afford medication in Canada, and his health team provides him with samples
free of charge.
[15]
The Respondent says an enforcement officer is
presumed to have considered all of the evidence, even if it is not specifically
referred to in the decision. In this case, the officer’s decision states: “I note the statements and articles related to problems with
[the] mental health system in Trinidad. I also considered the medical documents
related to Mr. Gerald Desmond WELLS’s mental health condition.” The
Respondent cautions that an enforcement officer who considers a deferral
request is concerned only with the short-term interests of an applicant, and is
not expected to conduct a comprehensive H&C or risk analysis.
[16]
While the enforcement officer “noted” the news articles and medical evidence
submitted by Mr. Wells, the decision contained no analysis of either. Even
within the limited scope of the officer’s discretion, this omission gives rise
to a reviewable error.
[17]
In Averin v Canada (Public Safety and
Emergency Preparedness), 2012 FC 1456, Justice James O’Reilly held as
follows:
[11] In my view,
given the evidence before him, the officer was obliged to consider whether the
unavailability of medication for Mr. Averin presented an “exigent personal
circumstance” that justified a deferral. The mere fact that Mr. Averin had an
outstanding H&C application would not have justified a deferral. But the
fact that Mr. Averin would not have available to him the medication he required
would have provided that justification. The officer did not consider that
issue.
[12] In my view,
the officer’s decision was unreasonable because it did not take account of an
exigent personal circumstance facing Mr. Averin. There was evidence before the
officer showing that Mr. Averin may not have access to the medication he
required. The officer simply did not consider that evidence. Accordingly, I
find that the officer’s decision does not represent a defensible outcome based
on the evidence before him, and the law requiring him to consider the
applicant’s personal circumstances. Therefore, I must grant this application
for judicial review.
[18]
This application for judicial review must be
granted for similar reasons. In this case, there was evidence before the
enforcement officer that Mr. Wells is unlikely to receive treatment or
medication for his serious mental health condition in Trinidad and Tobago. The
enforcement officer’s decision did not take account of this exigent personal
circumstance, and it is therefore unreasonable.
[19]
In light of this conclusion, it is unnecessary
to consider Mr. Wells’ secondary argument concerning the enforcement officer’s
assessment of the best interests of his four children.
VI.
Conclusion
[20]
The application for judicial review is allowed,
and the matter is remitted to a different enforcement officer for
reconsideration. Neither party proposed that a question be certified for
appeal, and none arises in this case.
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