Federal Court Decisions

Date: 20041014

Docket: IMM 8586 04

Citation: 2004 FC 1416

Ottawa, Ontario, this 14^th day of October, 2004

Present:           THE HONOURABLE MR. JUSTICE von FINCKENSTEIN                              

BETWEEN:

XOCHITL RUTH MEZA REYNOSO; SILVERIO BERNARDO GANDARA

BLASCO; MIZRAIM SILVERIO GANDARA MEZA; JESSICA ATALIA GANDARA

MEZA

                                                                                                                                            Applicants

                                                                            and

                                MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                          Respondent

                                             REASONS FOR ORDER AND ORDER

                         (Delivered orally and subsequently written for clarification and precision)

[1]                The Applicant and his family are failed refugee claimants from Mexico. Their Pre Removal Risk Assessment ("PRRA") application was also rejected. Evidence regarding the behavioural problems of their child, Mizraim, from social workers had been sent by the removals officer to the medical officer at the Canadian High Commission in Trinidad and Tobago.

[2]                On the basis of the reply from the medical officer, the information submitted by the Applicant in her H & C application and referring to the best interest of the child as per Baker v. Canada (MCI) [1996] F.C.J. No. 1152, the removals officer rejected a deferral of the deportation.

[3]                The Applicants now seek a stay of the removal order. To succeed, the Applicants must meet the conjunctive tripartite test of Toth v. M.E.I. (1988) 86 N.R.

[4]                As a serious issue, the Applicants allege that:

a)         the assessment of the medical officer was deficient,

b)          that the removals officer failed to give sufficient reasons for his decision not to defer, and

c)         they had no opportunity to rebut the findings of the removals officer.

[5]                In my view the Applicants have failed in establishing a serious issue.

[6]                The opinion of the medical officer addressed the concerns raised by the social worker. Given the general nature of the social worker's concerns and the lack of sources or reasons for her assumptions that adequate care was unavailable in Mexico, there is nothing further that the medical officer could or ought to have provided.

[7]                The duties of a removal officer are very limited. See Boniowski v. Canada (M.C.I.) [2004] F.C.J. No. 1397 at para 18 and 19. Similarly, given the narrow scope of her essentially administrative decision there is also no need for lengthy formal reasons. See Boniowski supra para 11.

[8]                The removal officer in this case, by taking into account the expert medical opinion, the H & C application and the Baker decision fully discharged her duties. The reasons she gave are sufficient under the circumstances. There are no provisions in the Immigration and Refugee Protection Act or in jurisprudence that require the Applicants be given a chance to rebut the removal officer's findings before a decision is made.

[9]                Having failed the 'serious issue' leg of the test, this application cannot succeed and I need not address the other two legs.

                                                                        ORDER

THIS COURT ORDERS that this application be dismissed.

"K. von Finckenstein"

                                                                                                                                                     Judge                     

                                              FEDERAL COURT TRIAL DIVISION

                             NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO.:                                                                IMM-8586-04

STYLE OF CAUSE:                                                               XOCHITL RUTH MEZA REYNOSO AND OTHERS v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                              

PLACE OF HEARING:                                                         Ottawa and Toronto

via teleconference

DATE OF HEARING:                                                           October 13, 2004

REASONS FOR ORDER AND ORDER:                           The Honourable Mr. Justice von Finckenstein

DATED:                                                                                  October 14, 2004

APPEARANCES:

SOLICITORS OF RECORD: