[2013] 3 F.C.R. D-11
Citizenship and Immigration
Exclusion and Removal
Judicial review of decision by Canada Border Services Agency enforcement officer denying application to stay execution of applicant’s removal order, deciding deportation order enforceable as of certain date—Fearing irreparable harm to applicant’s medical condition as result of immediate removal, interim stay of enforcement of removal order ordered pending final decision on application for judicial review of officer’s decision—Guatemalan applicant leaving her country to take care of mother living in Canada, suffering from health problems—Applicant without status in Canada since several applications to stay in Canada denied, including application for permanent residence on humanitarian, compassionate (H&C) considerations—While in process of regularizing status in Canada, applicant diagnosed with rare type of colon cancer, subsequently hospitalized, treated—Although applicant’s medical condition progressing favourably since treatments, medical evidence indicating condition requiring close monitoring—Officer dealing with application for stay of removal order sending applicant’s counsel e‑mail from Citizenship and Immigration Canada’s (CIC) medical consultant stating applicant fit to fly, could receive medical services needed in Guatemala—Applicant sending officer letter from doctor in only centre specializing in cancer in Guatemala stating tests requested by treating physician not available in their institution, preferable tests be conducted in Canada where applicant’s treatment began—In response to letter, consultant sending another e-mail—Since denial of stay application, applicant filing new H&C application from within Canada—That application outstanding—Whether enforcement officer erring by not considering special circumstances surrounding application, i.e. applicant’s medical condition, whether officer’s refusal to grant stay of applicant’s removal order justified having regard to all evidence on record—Mere existence of H&C application not preventing enforcement of valid removal order unless threat to personal safety—Whether applicant’s medical condition, denial of medical treatment needed could amount to threat to personal safety officer had to consider—Officer’s limited discretion to defer enforcement of removal requiring officer be satisfied applicant’s medical condition not jeopardized if returned to Guatemala—Court not convinced officer considering, reasonably assessing all medical evidence to ensure immediate removal would not expose applicant to significant, imminent risks attested to by treating physicians—As to second issue, officer’s decision untenable considering applicant’s medical evidence regarding risks, course of disease, availability of medical services required for treatment in her country—Because applicant not given specific reason supporting decision under review, Court could only presume decision made on basis of CIC consultant’s opinion—Applicant not meeting with consultant, opinion based essentially on applicant’s medical file—Even more important, evidence contradicted on balance of probabilities by applicant’s evidence showing not only was this unusual case but care, examinations required for necessary follow‑up treatments not available in Guatemala—Enforcement officer could not simply refuse to defer removal on basis of risks alleged by applicant because new evidence concerning risks submitted—Officer completely underestimating risk going to applicant’s health, life, by relying only on consultant’s e‑mails—Assuming consultant knew about health services available in Guatemala, neighbouring countries, totally unreasonable to require applicant to travel to those countries to undergo tests, treatments required by condition—Although no grounds permitting Court to ensure officer seriously examined applicant’s allegations, evidence, obvious officer not sensitive to seriousness of applicant’s unique, personal circumstances, in that sense, not reasonably exercising discretion under Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 48(2)—Application allowed.
Arrechavala de Roman v. Canada (Public Safety and Emergency Preparedness) (IMM-9467-12, 2013 FC 478, Shore J., judgment dated May 7, 2013, 15 p.)