Federal Court Decisions

Date: 20050818

Docket: IMM-7029-04

Citation: 2005 FC 1112

Ottawa, Ontario, August 18, 2005

PRESENT:    The Honourable Mr. Justice O'Reilly

BETWEEN:

MARIA RITA TEIXEIRA RAMADA

Applicant

and

THE SOLICITOR GENERAL FOR CANADA

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

[1]    Ms. Maria Rita Teixeira Ramada was scheduled to be removed from Canada for Portugal in August 2004. Ms. Ramada asked an immigration enforcement officer to defer her removal while her application for humanitarian and compassionate consideration was pending. The officer refused. However, Ms. Ramada's removal was stayed by order of this Court to permit her to seek judicial review of the officer's decision.

[2]    Ms. Ramada argues that the officer failed to discharge her responsibility to consider her compelling personal circumstances and made serious errors of fact. She asks to have her request considered by another officer. While Ms. Ramada has raised a number of grounds for overturning the officer's decision, I find one of her arguments to be persuasive and need not consider the others. Therefore, I will grant this application for judicial review.

I. Issue

Did the officer ignore evidence or make serious factual errors when she decided not to defer Ms. Ramada's removal from Canada?

II. Analysis

[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.

[4]    Here Ms. Ramada asked the officer to defer her removal for the following reasons:

_     immediate removal would not be in the interests of her youngest child, who suffers from febrile seizures;

_     Ms. Ramada has Type 2 diabetes and her removal might interfere with proper monitering of her blood sugar level;

_     Ms. Ramada was diagnosed with depression; her removal would worsen her mental state.

[5]    The officer is to be commended for her willingness to entertain Ms. Ramada's arguments and consider the evidence before her. She made detailed notes explaining her decision not to defer Ms. Ramada's removal from Canada. She took the additional precaution of seeking a medical opinion on Ms. Ramada's fitness to travel. She considered, at least in general terms, the best interests of Ms. Ramada's two Canadian-born children.

[6]    However, there was evidence before the officer that Ruthe, then three years old, was experiencing serious seizures of unknown cause. She was being treated at Sick Children's Hospital in Toronto. It was uncertain whether she could obtain appropriate treatment in Portugal. Yet, the officer did not consider Ruthe's circumstances. As a Canadian citizen, Ruthe was entitled to remain in Canada and take advantage of her health benefits here. She had no similar expectation or entitlement in Portugal. The officer was aware that Ms. Ramada's children were entitled to remain here, but she did not specifically consider the impact on Ruthe of leaving Canada, given Ms. Ramada's natural desire, as a single parent, to take her children with her to Portugal.

[7]    I have some reluctance in granting this application for judicial review, out of concern for imposing on enforcement officers an obligation to engage in an extensive analysis of the personal circumstances of persons subject to removal orders. Obviously, officers are not in a position to evaluate all of the evidence that might be relevant in an application for humanitarian and compassionate relief. Their role is important, but limited.    In my view, it is only where they have overlooked an important factor, or seriously misapprehended the circumstances of a person to be removed, that their discretion should be second-guessed on judicial review.

[8]    In the circumstances, I will grant this application for judicial review. Neither party proposed a question of general importance for me to certify, and none is stated.

JUDGMENT

THIS COURT'S JUDGMENT IS that:

1.       The application for judicial review is granted;

2.       No question of general importance is stated.

"James W. O'Reilly"