Date: 20050120
Docket: IMM-9625-03
Citation: 2005 FC 88
BETWEEN:
JOYCELIN ADINA HARDWARE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
OVERVIEW
[1] Ms. Hardware, shortly before her scheduled removal date, requested that her deportation to Jamaica be deferred for at least two (2) months based on health issues and pending litigation. The Enforcement Officer, after consideration of the request, based on materials provided by the Applicant and on medical advice from his department, denied the deferral. This is the judicial review of the decision not to defer.
BACKGROUND
[2] Ms. Hardware was denied refugee protection in October, 2001. In January, 2003 her application for permanent residence from within Canada on humanitarian and compassionate grounds (H & C) was denied.
[3] On November 5, 2003 she met with the Enforcement Officer who noted that (1) the Applicant indicated no health concerns; (2) there was no pending litigation; (3) a negative PRRA had been served on the Applicant.
[4] When Ms. Hardware attended with her then counsel at the pre-removal interview, she was served with a Direction to Report for Removal on December 9, 2003. Her counsel indicated that she had filed for a stay of removal on the grounds of an outstanding insurance claim. No such filing was made.
[5] On December 3, 2003 the Applicant through her new counsel made a deferral request based on the Applicant's medical condition and pending insurance litigation. The request included a) an affidavit of Ms. Hardware to which was attached a Functional Abilities Evaluation confirming her medical condition and (b) a letter from Dr. Tong, her physician.
[6] The letter from Dr. Tong referred to Ms. Hardware suffering considerable pain due to a car accident and to the possibility that she will require an operation. The essential part of his brief letter reads:
It is my medical opinion that removal from Canada at this time would seriously compromise Ms. Hardware's health. It would also jeopardize her insurance claim which from a medical perspective is quite founded.
[7] Before rendering a decision, the Enforcement Officer sought the advice of the department's medical services. The report from the medical services was that she was able to travel on an airplane. The pertinent parts of that advice establishes that the doctor at departmental medical services consulted with Ms. Hardware's doctor before giving that advice.
I spoke to Dr. Tong. Ms. Hardware had a motor vehicle accident in November 2001. She was never hospitalized, an MRI was normal, she is following a physiotherapy regime and there is a court case pending in which Dr. Tong says she is sueing (sic) the other driver.
From the history, your evidence and after speaking with Dr. Tong, I am of the opinion that she is able to travel on an airplane if necessary.
[8] The Enforcement Officer also consulted with the Department of Justice regarding the impact of removal on the outstanding litigation and was advised that while removal would make communications more difficult, it would not prevent Ms. Hardware from pursuing her claim.
[9] This litigation, it turns out, is a small claims court matter filed shortly before the deferral request in issue. The Applicant could not provide to this Court any satisfactory explanation or authority for the timing of the initiation of this claim for $10,000 in damages.
[10] The Enforcement Officer, in refusing deferral, indicated that he considered the medical advice, the Applicant's immigration history including the conclusions in the denial of her H & C application and the difficulties she might experience in conducting the civil lawsuit. The Enforcement Officer concluded that there were insufficient grounds for deferral of removal.
[11] Justice Gauthier of this Court granted a stay of deportation. In so doing she expressed concern, based on the material then before her that insufficient consideration was given to the Applicant's medical condition. The facts in this case have now been more fully canvassed than the time and the materials would have afforded Justice Gauthier.
ANALYSIS
[12] The sole issue in this application is whether the Enforcement Officer erred in exercising his discretion not to defer removal.
[13] The discretion which an Enforcement Officer may exercise is, under section 48 of the Immigration and Refugee Protection Act, very limited.
[14] The Applicant places considerable reliance on Justice Russell's decision in Prasad v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. 805. That decision holds that an Enforcement Officer may consider the circumstances directly affecting travel arrangements and may consider the special circumstances of the case. The failure to consider compelling individual circumstances, such as personal safety or health issues, may constitute an unlawful fettering of an officer's discretion.
[15] I concur with Justice Russell's articulation of this aspect of the obligations under section 48.
[16] However the Prasad decision does not assist the Applicant. The burden of establishing special circumstances rests with the Applicant. As the Enforcement Officer's decision indicates, it was the failure to meet the burden of proof which resulted in the refusal to defer.
[17] A request for deferral is not the place for battling out expert medical evidence, except in the most exceptional circumstances. All of the Applicant's medical issues were or should have been dealt with in the H & C application, which application was denied. There were no material new circumstances which were brought to the Enforcement Officer's attention or to that of the department's medical services.
[18] The Enforcement Officer acted in a completely reasonable manner. He sought out medical advice, his medical advisor reviewed materials supplied by the Applicant, his medical advisor spoke directly with the Applicant's doctor. There was no persuasive medical evidence of special circumstances.
[19] The Enforcement Officer also sought out legal advice as to the impact of removal on the conduct of the Applicant's law suit. Even if that were a valid consideration for deferral, a matter which is seriously in doubt, the Enforcement Officer took that factor into consideration.
[20] Given the evidence before the Enforcement Officer including medical and legal advice, it is difficult to contemplate what more the Enforcement Officer should have done. The obligation to establish any special circumstances must reside completely with the Applicant.
[21] As explained to the Court by her counsel, the Applicant had merely requested a deferral of two months to update her medical situation. The order of Justice Gauthier resulted in the Applicant having more than that time. Since then no request was made to submit further or new evidence which would confirm that the Enforcement Officer's decision was factually in error or to show that the claim of special circumstances was well founded.
[22] Under all these circumstances, the Court finds no reason to overturn the exercise of the Enforcement Officer's discretion. This application for judicial review will be dismissed.
[23] There is no question to be certified.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9625-03
STYLE OF CAUSE: JOYCELIN ADINA HARDWARE v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 9, 2004
REASONS FOR ORDER: Phelan J.
DATED: January 20, 2005
APPEARANCES:
Mr. Dwight Jenkins FOR THE APPLICANT
Ms. Sally Thomas FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Dwight Jenkins
Oshawa, Ontario FOR THE APPLICANT
Mr. John H. Sims
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT