Date: 20041027
Docket: IMM-7941-03
Citation: 2004 FC 1511
BETWEEN:
MAHESWARY SIVAGNANAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
INTRODUCTION
[1] These reasons follow the hearing of an application for judicial review of a decision of a Removals Officer dated the 8th of October, 2003 and communicated to the Applicant on the same day, wherein the Officer advised that the removal of the Applicant to Sri Lanka would not be deferred and that the deportation arrangements then in place would be implemented.
[2] The Applicant had filed an application for landing from within Canada sometime between January and July of 2003. Her application for landing was sponsored by her son who has status in Canada. To the date of hearing of this application, her application for landing from within Canada had not been dealt with.
[3] By Order dated the 15th of October, 2003, I granted a stay of removal of the Applicant in the following terms:
Removal of the Applicant is stayed to the earlier of : fifteen (15) days after the Applicant is notified of the outcome of her application for landing on humanitarian and compassionate grounds and the related sponsorship application; and final disposition of the application for leave and for judicial review herein.
BACKGROUND
[4] The Applicant is a citizen of Sri Lanka, a Tamil from the north of Sri Lanka and is in her mid to late fifties. She and her son arrived in Canada in 1997. They made claims to Convention refugee status. While the Applicant's son's claim was accepted, the Applicant's claim was rejected. An application for leave and judicial review of the rejection of the Applicant's claim to Convention refugee status was dismissed.
[5] A pre-removal risk assessment in respect of the Applicant was determined against her wish to remain in Canada, on the 10th of September, 2003 against the Applicant's interest. Removal arrangements in respect of the Applicant to Sri Lanka quickly followed.
[6] The Applicant is a widow. Her mother and siblings are in Canada. Her son, on whom she is substantially dependant, is also in Canada. The Applicant has only one other close relative, a daughter who lives in Denmark where she has been found to be a Convention refugee. The Applicant endured traumatizing experiences in the North of Sri Lanka between 1995 and 1997. None of her family members and other persons to whom she has a close relationship remains in Sri Lanka.
[7] The Applicant has serious medical problems. She attests that she suffers from severe asthma and has had a number of asthmatic attacks that required her to be rushed to the hospital, a service performed by her son. She has thyroid problems. She suffers from osteoarthritis. For the latter two conditions, she takes medication. She attests that she is very forgetful and that, without the daily reminder provided to her by her son, she might well forget to take her medication, thus aggravating her conditions. In the year preceding the swearing of her affidavit, she had lost a very significant amount of body weight.
[8] The Applicant is fearful of returning to Sri Lanka. She attests:
The thought of being forced to return to Sri Lanka causes me extreme fright and desperation.
I am terrified of being alone there. I have no one to go back to.
Due to the traumatic experiences I suffered in Sri Lanka prior to my fleeing the country, I still suffer the emotional effects of the horrible experiences there. This causes me to become extremely distraught at the possibility of returning to Sri Lanka. Indeed, I do not believe I could survive there emotionally.[1]
[9] The Applicant's son does all the cooking and cleaning for her.
[10] In short, the Applicant attests that she is very dependant on her son, that she has become "despondent and depressed" and that she does not believe that she could survive if she were required to return to Sri Lanka.
[11] Significantly, the Applicant provided no evidence as to the existence or non-existence of social agencies or the like in Sri Lanka, the costs of which she could afford, that could perform the supportive role that her son plays for her here in Canada.
THE DECISION UNDER REVIEW
[12] The letter conveying the Respondent's decision not to defer the removal of the Applicant to Sri Lanka provides no analysis to support the decision. The essence of the letter is in the following terms:
...I do not feel that a deferral of the execution of the removal order is appropriate in the circumstances of this case.[2]
That being said, the tribunal record contains notes that reflect the rather thoughtful analysis conducted by the officer who considered the Applicant's request for deferral. Those notes contain the following passage:
Although [the Applicant] has many compelling H & C factors, as a removals officer it is not my place to assess these factors but that of the H & C officer.[3]
[13] The officer consulted with a Medical Officer employed in the Respondent's department of government. That officer advised that medical services in respect of the Applicant's physical and psychological difficulties were available in Sri Lanka. He further advised that the Applicant would be able to "access" treatment for her depression in Sri Lanka. The removals or enforcement officer concluded:
Although it is unfortunate that she will be required to be separated from her son, that alone is not a cause for deferral.[4]
THE ISSUES
[14] The issues identified in the Applicant's Memorandum of Argument, and not abandoned before the commencement of the hearing, are the following:
1. Did the officer err in refusing to consider the outstanding humanitarian application despite her assessment that there were compelling H & C [humanitarian and compassionate] factors in this case?
2. Did the officer err in law and fetter her discretion by refusing to consider the risk to life to the Applicant?[5]
ANALYSIS
[15] Much has been written by judges of this Court regarding the discretion available to an officer who, on behalf of the Respondent, is requested to consider deferral of removal arrangements. In Prasad v. Canada (Minister of Citizenship and Immigration)[6], my colleague Justice Russell, after reviewing the jurisprudence in the area, wrote at paragraph [32] of his reasons:
In summary, the cases appear to suggest that the discretion under section 48 [of the Immigration and Refugee Protection Act] 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. [emphasis added]
[16] In Padda v. Canada (Minister of Citizenship and Immigration)[7], Justice Laydon-Stevenson, after referring to the reasons in Prasad, wrote:
The second alleged error is that the enforcement officer completely ignored the contents of the psychological assessment with respect to Mr. Padda's wife. That is not so. The enforcement officer did consider the psychological report and while she did not quote the specific terminology used by the psychologist, her observations regarding treatment were accurate. It is not open to the applicant to argue that the weight assigned to the report was not sufficient. Weighing the factors is the task of the enforcement officer. ... [emphasis added]
[17] On the facts of this matter, the officer whose decision is under review was clearly very cognizant of the Applicant's concerns. She most likely went beyond what was required of her to determine that medical services would be available to the Applicant in Sri Lanka to support her in coping with both her physical and psychological difficulties. That being said, the officer would appear from her notes not to have considered the Applicant's concern that she is very reliant on her son here in Canada, and that she would have no equivalent support in Sri Lanka. I am satisfied that this particular concern was the essence of the "...compelling individual circumstances such as ... health issues...", to quote the words of Justice Russell earlier quoted herein in context. I am satisfied that the officer's failure to consider these compelling individual circumstances, on the facts of this matter, constituted an unlawful fettering of the officer's discretion.
[18] The foregoing is not to say that the Applicant's compelling individual circumstances could not have been easily addressed. In Adviento v. Canada (Minister of Citizenship and Immigration)[8], Justice Martineau wrote at paragraph [44]:
..., the applicant had the burden of proving, on a balance of probabilities, by credible and reliable evidence, that she would likely be refused access [to needed supplies and medication]. ...
[19] Here, on the material before the Court, it would appear that the Applicant failed to adduce credible and reliable evidence to support the proposition that the role played by her son here in Canada, in supporting her, could not have been performed in Sri Lanka by a social agency or through some other mechanism that would have been accessible within the economic resources of the Applicant and her family.
[20] However easily the Applicant's compelling individual circumstances might have been dealt with by the officer, I am satisfied that the failure by the officer to deal with them constituted reviewable error.
[21] For the foregoing brief reasons, this application for judicial review will be allowed.
CERTIFICATION OF A QUESTION
[22] When advised of my conclusion on this application for judicial review, counsel for the Respondent urged certification of a question although he proposed no wording for such a question that the Court found satisfactory. Counsel for the Applicant urged against certification of a question.
[23] As earlier indicated, the issues reflected on this application for judicial review have been the subject of much consideration by this Court. Neither counsel indicated to the Court that the same issues have come before the Court of Appeal. I am satisfied that the issues here raised have now reached the level of a serious question of general importance that would be determinative of an appeal of my decision herein. In the result, I will certify the following question as drafted by the Court and without opportunity to counsel to comment on the specific wording:
In the absence of evidence that the country of destination of an applicant will not be able to satisfactorily respond to the compelling individual circumstances of an applicant for deferral of removal, is the scope of obligation of the officer to whom an application for deferral of removal has been made, as adopted in the reasons for decision herein, appropriate in law?
__________________________________
J.F.C.
Ottawa, Ontario
October 27, 2004
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-7941-03
STYLE OF CAUSE: MAHESWARY SIVAGNANAM
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: OCTOBER 21, 2004
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR JUDGMENT BY: The Honourable Mr. Justice Gibson
DATED: October 27, 2004
APPEARANCES BY: Brena Parnes
Barrister and Solicitor
281 Eglinton Ave. E
Toronto, ON M4P 1L3 For the Applicant
David Tyndale
DEPARTMENT OF JUSTICE 130 King Street West
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6 For the Respondent
SOLICITORS OF RECORD: Lorne Waldman
Barrister and Solicitor
Waldman and Associates
Toronto, Ontario For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario For the Respondent
[1] Applicant's Application Record, Tab 3, page 9, paragraphs 10 to 12.
[2] Tribunal Record, page 2.
[3] Tribunal Record, page 3.
[4] Tribunal Record, page 4.
[5] Applicant's Application Record, page 33.
[6] [2003] F.C.J. No. 805 (Q.L.).
[7] [2003] F.C.J. No. 1353 (Q.L.).
[8] [2003] F.C. J. No. 1837 (Q.L.).