Toronto, Ontario, March 27, 2007
PRESENT: The Honourable Mr. Justice Harrington
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1] This is another motion which probes the discretion of an officer to defer removal from Canada of a person against whom an enforceable order has been issued.
[2] Section 48 of the Immigration and Refugee Protection Act provides:
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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 it must be enforced as soon as is reasonably practicable. |
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 appliquée dès que les circonstances le permettent. |
[3] Ms. Tobin came to Canada from Grenada in 1990, and has not returned. For most of that time she has been out of status.
[4] She made an application for permanent residence from within Canada on humanitarian and compassionate grounds in November 2005. That application is still being processed.
[5] She also underwent a pre-removal risk assessment, which was negative, and so has been ordered to leave the country.
[6] Her lawyer requested the officer to defer removal pending the outcome of her humanitarian and compassionate application for permanent residence; because of the current situation in Grenada and because of pressing health issues. The officer refused. That refusal is now the subject of an application for leave and judicial review.
[7] In the interim, Ms. Tobin seeks a stay of that removal order. It is well established that in order to succeed she must establish that there is a serious issue in the underlying application, irreparable harm and that the balance of convenience favours her (Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (FCA)).
[8] For the purposes of disposing of this motion, it is not necessary to consider, one way or another, whether the H&C application was sufficiently timely to engage the officer’s discretion (Simoes v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 936 (QL)) or to consider the situation in Grenada, particularly in the aftermath of Hurricane Ivan.
[9] I am satisfied that Ms. Tobin has pressing health issues which were not properly considered by the enforcement officer.
[10] Ms. Tobin suffers from glaucoma that severally limits her vision. Although she is out of status and does not benefit from Medicare, she has some insurance from her employer and a community health centre has helped out financially. She had an operation on her right eye in 2005 and her doctor tells her that she needs an operation on her left eye in the very near future. She is concerned that if she is removed from Grenada she will no longer be able to afford the operation, and indeed it is unclear, even if she could afford it, if such an operation is available in that country.
[11] The enforcement officer said he consulted with the Medical Officer in Ottawa who confirmed that Ms. Tobin was able to fly. The enforcement officer went on to say that the doctor “indicated that basic medical care is available in Grenada. Moreover, eye surgery is available in Trinidad and Tobago if it cannot be undertaken in Grenada.”
[12] It was not suggested that Trinidad and Tobago has any obligation to treat Grenadian citizens. All that can be said is that Trinidad and Tobago is close by geographically. If eye surgery is available there, it is also available in Canada, the United States and any number of other countries.
[13] A serious is thus raised. In Prasad v. Canada (Minister of Citizenship and Immigration), 2003 FCT 614, Mr. Justice Russell pointed out that this Court has not been entirely consistent in ranking the relevant factors which may press upon the officer’s discretion under section 48 of IRPA. He concluded at paragraph 32:
In summary, the cases appear to suggest that the discretion under section 48 allows the officer to consider the circumstances directly affecting travel arrangements, but her inquiry is not restricted to that. She also has to consider other special circumstances of the case. 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.
[14] More recently, Prasad and other decisions were cited by Mr. Justice O’Reilly in Ramada v. Canada (Solicitor General), 2005 FC 1112, [2005] F.C.J. No. 1384 where he stated at paragraph 3:
Enforcement officers have a limited discretion to defer the removal of persons who have been ordered to leave Canada. Generally speaking, officers have an obligation to remove persons as soon as reasonably practicable (s. 48(2), Immigration and Refugee Protection Act, S.C. 2001, c. 27; set out in the attached Annex). However, consistent with that duty, officers can consider whether there are good reasons to delay removal. Valid reasons may be related to the person's ability to travel (e.g. illness or a lack of proper travel documents), the need to accommodate other commitments (e.g. school or family obligations), or compelling personal circumstances (e.g. humanitarian and compassionate considerations). (See: Simoes v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 936 (T.D.) (QL), Wang v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 682 (T.D.) (QL), Prasad v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 805 (T.D.) (QL); Padda v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1353 (F.C.) (QL)). It is clear, however, that the mere fact that a person has an outstanding application for humanitarian and compassionate relief is not a sufficient ground to defer removal. On the other hand, an officer must consider whether exigent personal circumstances, particularly those involving children, justify delay.
[15] The risk of irreparable harm Ms. Tobin faces is that without treatment she may become functionally sightless.
[16] The balance of convenience also favours her. As stated by Mr. Justice Beetz in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110, the Court must determine “which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory stay pending a decision on the merits.”
ORDER
THIS COURT ORDERS that the motion for an application for a stay of the removal scheduled for 2 April 2007 is granted until final determination of the underlying application for leave and for judicial review.
“Sean Harrington”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1203-07
STYLE OF CAUSE: Theodora Bridget Tobin v.
The Minister of Public Safety and Emergency Preparedness
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 26, 2007
REASONS FOR ORDER
APPEARANCES:
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Mordechai Wasserman
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Margherita Braccio
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SOLICITORS OF RECORD:
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Mordechai Wasserman Barrister & Solicitor Toronto, Ontario
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John H. Sims, Q.C. Deputy Attorney General of Canada
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