Date: 20040616
Docket: IMM-4789-04
Citation: 2004 FC 867
Montréal, Quebec, this 16th day of June, 2004
Present: The Honourable Mr. Justice Harrington
BETWEEN:
KANAGAMBIKAI PANCHARATNAM
Applicant
and
SOLICITOR GENERAL OF CANADA
Respondent
[1] Mrs. Pancharatnam is feeble. She suffers from many ailments which require various medications. She is diabetic and must take insulin by injection. Because of her poor eyesight she is unable to measure dosages and check her blood sugar herself. She lives with a son and his wife. Fortunately, her daughter-in-law is a nurse and administers her insulin to her. After she was widowed, she came to Canada from Sri Lanka in 1999. She claimed the status of a refugee. Her claim was rejected and her judicial review application to this Court was dismissed.
[2] She then sought protection in Canada by way of a pre-removal risk assessment. That claim was rejected as it was determined that conditions in Sri Lanka are such that she would not be in need of protection.
[3] She has been ordered to leave Canada. Section 48(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, provides:
|
48(2) If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as is reasonably practicable. |
48(2) L'étranger visé par la mesure de renvoi exécutoire doit immédiatement quitter le territoire du Canada, la mesure devant être appliquée dès que les circonstances le permettent. |
Mrs. Pancharatnam does not want to leave.
[4] Recently, she requested the Minister, pursuant to section 25 of the Act, to grant her permanent resident status in Canada for humanitarian and compassionate considerations. This submission was made together with a sponsorship application from her son.
[5] She asked the Enforcement Officer to defer her removal until her application for status on humanitarian and compassionate considerations is finally determined. Apart from her medical condition, she has no family left in Sri Lanka. Indeed, all her children, but one, are in Canada.
[6] The Enforcement Officer refused her request. Accordingly, she has come to this Court seeking a stay of the removal order.
[7] The Enforcement Officer, Bob Hickson, first declined to defer the removal on 8 March 2004. He was satisfied at that time, based on medical information he had received, that Mrs. Pancharatnam was physically fit to fly to Sri Lanka. When the matter first came before me in Toronto under dockets numbers IMM-3059-04 and IMM-2871-04 one of the legal issues canvassed was if his concern should be limited to whether her medical condition was such that she was able to fly to Sri Lanka, or whether he should also be concerned as to how she would fare, medically speaking, after she returned. The solicitor for the respondent agreed, without in any way admitting that Mr. Hickson was obliged or entitled to have such concerns, to put the matter over so that both parties would have the opportunity to develop further information.
[8] Further information was indeed brought to the Court. By the time the matter came up again on 11 May 2004, Mr. Hickson, by a decision rendered the day before, again said there were insufficient grounds to warrant a deferral of removal. In part he relied upon a U.K. Home Office Immigration and Nationality Directorate, Sri Lanka Assessment, published in April 2003. However, his notes also indicated that he had consulted Dr. Brian Dobie, of the Overseas Medical Services, and wanted to follow up but Dr. Dobie was unavailable, as he would not be returning to the office until 14 May. He also indicated that he had sought the opinion of a Dr. Cianni, a medical officer for Immigration Canada, in South Asia, about the situation in Sri Lanka but had not yet received a response.
[9] I saw no reason why the Solicitor General's interest in administering the law, which is a completely legitimate interest, was such that a decision had to be made on incomplete information. I adjourned the matter until Mr. Hickson received, considered and promulgated his notes with respect to the matters to be followed up with Drs. Dobie and Cianni.
[10] Mr. Hickson has followed up. In the event, the information he received from Dr. Dobie covered the points he wished to discuss with Dr. Cianni, and so he did not follow up with the latter.
[11] On 25 May he informed Mrs. Pancharatnam, through her solicitors, that he was still of the view there were insufficient grounds to warrant a deferral of removal. That is the decision before me, as his two earlier ones are now moot.
[12] The information received by Mr. Hickson, which served as the basis of his decision, was that Mrs. Pancharatnam has insulin-dependent diabetes which can only be treated by injection and for which oral medication does not exist. Mrs. Pancharatnam's eyesight is such that she cannot self-administer. There are medical facilities available in Sri Lanka and the type of care Mrs. Pancharatnam requires is available. It is doubted that the type of in-house care provided by Mrs. Pancharatnam's daughter-in-law would be readily available. There was some debate before me about Mrs. Pancharatnam's eyesight, which is compromised by her diabetes. In particular, there was a question whether she has cataracts, and there was another file which was not consulted. Although it was argued that there was a duty on Mr. Hickson to follow up on his own initiative, that is not the case. The burden falls upon Mrs. Pancharatnam and, in any event, the point is not relevant. What is relevant, and what was accepted by Mr. Hickson, is that she has very poor eyesight, whatever the cause.
[13] In coming to his conclusion that appropriate medical facilities were available, Mr. Hickson preferred the view of Dr. Dobie over that of the Secretary of the Canada Hindu Cultural Council, who did not claim to be a doctor.
STAYS OF REMOVAL ORDERS
[14] It has been well-established that the test to be applied was set out by the Federal Court of Appeal in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302. It parallels the test for interim injunctions. The applicant must demonstrate all three of the following: (1) that there is a serious issue to be tried; (2) that she would suffer irreparable harm if the stay is not granted; and (3) that the balance of convenience lies in her favour.
SERIOUS ISSUE
[15] The serious issue is to be found in the underlying application before the Court, which is Mr. Hickson's decision of 11 May 2004 not to defer Mrs. Pancharatnam's removal from Canada.
[16] There is case law which provides that an enforcement officer has some discretion to defer removal. It has also been said that this discretion may in certain circumstances include a consideration of whether it would be reasonable to await a pending decision on a H & C application (Poyanipur v. Canada (Minister of Citizenship and Immigration) (1995), 116 F.T.R. 4 (TD) (Simpson J.)).
[17] It was submitted to me on behalf of Mrs. Pancharatnam, correctly I believe, that even though her health issues were not hidden during her PRRA assessment, the best forum to fully address these issues is in a H & C application. It was suggested, but it is not for me to have an opinion at this stage, that her H & C and sponsorship applications will ultimately be successful. I am concerned that if she had filed them in a timely fashion they probably would have already been heard, and determined. Mrs. Pancharatnam blames her previous lawyer. She says he never advised her "that I could make a humanitarian application or that my son could try to sponsor me from within Canada". However, he said those very things in a letter which forms part of the record, albeit a letter that is only dated a month or so before she did file her applications. In any event, justice would not be properly administered if, for any reason, the filing of a H & C application, and sponsorship application, could be timed so as to buy more time for a person who has been ordered removed. The adequateness of her representation is between her and her previous counsel (Huynh v. Canada (Minister of Employment and Immigration) (1993), 65 F.T.R. 11 (Rothstein, J., as he then was)). The authorities were collected and very thoughtfully reviewed by Russell J. in Prasad v. Canada (Minister of Citizenship and Immigration), 28 Imm. L.R. (3d) 87, 2003 FCT 614. He noted that there has been no definitive pronouncement on the meaning of the words "as soon as reasonably practicable", in section 48 of the Act, went on to say that there has been no exhaustive list of factors developed and that this Court has not been entirely consistent in ranking the relevant factors. It can be said that the enforcement officer's discretion is simply limited to considering the circumstances related to removal arrangements and should not extend to matters more appropriately falling within the ambit of a H & C application.
[18] Yet, there may be factors outside the narrow compass of travel arrangements which may be relevant, such as the children's school years and pending births or deaths (Wang v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 682, 2001 FCT 148 (Pelletier J., as he then was)).
[19] In Simoës v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 219, Nadon J., as he then was, indicated that an enforcement officer may consider "pending H & C applications that were brought on a timely basis but have yet to be resolved due to backlogs in the system". He added that the enforcement officer is not required to indulge in a ""pre-H & C" application, which in my opinion, is not what the law requires".
[20] Russell J. concluded at paragraph 32:
... On the one hand, the mere existence of a pending H & C application does not warrant a deferral of removal; nor is it the enforcement officer's job to evaluate the merits of an H & C application. On the other hand, a failure to consider compelling individual circumstances, such as personal safety or health issues, may constitute an unlawful fettering of the officer's discretion.
[21] I am satisfied that Enforcement Officer Hickson conscientiously and carefully considered the individual circumstances of this case. He found, as a matter of fact, that Mrs. Pancharatnam would have appropriate medical treatment available to her in Sri Lanka. Even on the most stringent standard of judicial review, correctness, I find no reviewable error and must conclude that there is no basis for arguing that there is a serious issue in the underlying application for judicial review of Officer Hickson's decision not to defer Mrs. Pancharatnam's removal from Canada to Sri Lanka.
IRREPARABLE HARM
[22] Since the applicant must satisfy the Court on all three branches of the Toth test, it is not necessary, strictly speaking, to consider this point. However, in the circumstances of this case, irreparable harm was very closely tied in with the serious issue. It was submitted that Mrs. Pancharatnam's life, liberty and security interests were engaged and that Officer Hickson's decision to remove her put her life at risk and is in breach of section 7 of the Charter. For the reasons already given, I cannot accept that argument. It was argued:
The deportation order prohibits the Applicant from making the fundamental personal choice to remain safely in Canada where she has the emotional, physical and financial support of her son that is essential for her life.
[23] Mrs. Pancharatnam does not have the right to remain in Canada. The law is perfectly clear. Her removal to her homeland, a homeland her children have left, will undoubtedly cause great sadness. However, as said by Pelletier J., as he then was, in Melo v. Canada (Minister of Citizenship and Immigration) (2000), 188 F.T.R. 39, at paragraph 21:
... if the phrase irreparable harm is to retain any meaning at all, it must refer to some prejudice beyond that which is inherent to the notion of deportation itself. To be deported is to lose your job, to be separated from familiar faces and places. It is accompanied by enforced separation and heartbreak.
ORDER
For these reasons the application for a stay of Enforcement Officer Hickson's decision of 25 May 2004 is dismissed. As this is an interlocutory order, no question can be certified as per section 72(2)(e) of the Act.
"Sean Harrington"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4789-04
STYLE OF CAUSE: KANAGAMBIKAI PANCHARATNAM
and
SOLICITOR GENERAL OF CANADA
HEARD VIA TELECONFERENCE: MONTREAL, QUEBEC and TORONTO, ONTARIO
DATE OF HEARING: JUNE 9, 2004
REASONS FOR ORDER
AND ORDER : HARRINGTON J.
DATED: JUNE 16, 2004
APPEARANCES:
Brena Parnes FOR APPLICANT
Margherita Braccio FOR RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associates FOR APPLICANT
Toronto, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario