De Roman v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 FC 478

• Judge: Shore, J.
• Court: Federal Court (Canada)
• Case Date: May 07, 2013
• Jurisdiction: Canada (Federal)
• Citations: 2013 FC 478;(2013), 432 F.T.R. 176 (FC)

De Roman v. Can. (2013), 432 F.T.R. 176 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] F.T.R. TBEd. MY.018

Nelly Janet Arrechavala De Roman (partie demanderesse) v. Le Ministre de la Sécurité Publique et de la Protection Civile (partie défenderesse)

(IMM-9467-12; 2013 CF 478; 2013 FC 478)

Indexed As: De Roman v. Canada (Minister of Public Safety and Emergency Preparedness)

Federal Court

Shore, J.

May 7, 2013.

Summary:

De Roman applied for judicial review of a decision of a Canadian Border Services Agency enforcement officer denying her application to stay the execution of a removal order and finding that her deportation order was enforceable.

The Federal Court allowed the application and remitted the matter to a different enforcement officer for reconsideration.

Aliens - Topic 1704

Exclusion and expulsion - Immigration - Exclusion - General - Stay of exclusion or removal order - De Roman, a citizen of Guatamala, came to Canada to care for her ailing mother - De Roman had been without status in Canada - Her refugee claim, her application for permanent residence on humanitarian and compassionate considerations and her pre-removal risk assessment were all denied - In 2010, De Roman was diagnosed with a rare form of cancer - Treatment was successful, however, her condition required close monitoring - A removal order issued - De Roman sought a stay of execution - A Canadian Border Services Agency enforcement officer denied the application - De Roman applied for judicial review - The Federal Court allowed the application - The officer's decision was untenable when one considered the medical evidence both with respect to the risks and the course of De Roman's disease, and the availability of the medical services required for her treatment in her country - Not only was this an unusual case, but the care and examinations required for the necessary follow-up treatments were not available in Guatemala - The officer completely underestimated this risk, which went to De Roman's health and life - Assuming the officer knew about the health services available in Guatemala and in the neighbouring countries, it was totally unreasonable to require De Roman to travel to those countries to undergo the tests and treatments that were necessary for her condition - Although there were no grounds that permitted the court to ensure that the officer seriously examined De Roman's allegations and evidence, it was obvious that the officer was not sensitive to the seriousness of De Roman's unique and personal circumstances and did not reasonably exercise the discretion he had under s. 48(2) of the Immigration and Refugee Protection Act.

Aliens - Topic 1800

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Deportation or removal order - Stay of (incl. termination of stay) - [See Aliens - Topic 1704 ].

Cases Noticed:

Baron et al. v. Canada (Minister of Public Safety and Emergency Preparedness), [2010] 2 F.C.R. 311; 387 N.R. 278; 2009 FCA 81, refd to. [para. 15].

Hussain v. Canada (Minister of Public Safety and Emergency Preparedness) (2012), 424 F.T.R. 206; 2012 FC 1544, refd to. [para. 16].

Shpati v. Canada (Minister of Public Safety and Emergency Preparedness) (2011), 423 N.R. 309; 2011 FCA 286, refd to. [para. 16].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 17].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 17].

Ramada v. Canada (Solicitor General), [2005] F.T.R. Uned. 679; 2005 FC 1112, refd to. [para. 17].

Turay v. Canada (Minister of Public Safety and Emergency Preparedness), [2009] F.T.R. Uned. 710; 2009 FC 1090, refd to. [para. 18].

Wang v. Canada (Minister of Citizenship and Immigration) (2001), 204 F.T.R. 5; 2001 FCT 148, refd to. [para. 22].

Toussaint v. Conseil canadien des relations du travail et al. (1993), 160 N.R. 396 (F.C.A.), refd to. [para. 26].

Chen (X.K.) v. Canada (Minister of Citizenship and Immigration) (2000), 197 F.T.R. 307 (T.D.), refd to. [para. 26].

Counsel:

Stéphanie Valois, for the applicant;

Lyne Prince, for the respondent.

Solicitors of Record:

Stéphanie Valois, Montreal, Quebec, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Montreal, Quebec, for the respondent.

This application was heard at Montreal, Quebec, on May 7, 2013, by Shore, J., of the Federal Court, who delivered the following judgment on May 7, 2013.