Date: 20040405
Docket: IMM-3043-04
Citation: 2004 FC 527
BETWEEN:
DRAHOMIRA HOLUBOVA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] These are the Reasons for an order denying a stay of execution of a Removal Order in respect of the Applicant.
[2] Ms. Holubova arrived in Canada from the Czech Republic in 1997 with her spouse and children who are now 19 and 8 years old respectively. The family claimed refugee status on the grounds of feared persecution based on their Roma ethnicity. The Immigration and Refugee Board ("IRB") granted their application.
[3] The Applicant lied on her refugee claim in asserting that she had no criminal record. What flows naturally from being caught in the lie is what brings her here today.
[4] Ms. Holubova had been convicted of theft in 1995 and robbery in 1996. When Canadian officials learned of these circumstances, the Minister of Citizenship and Immigration took steps to vacate her (not the rest of the family) refugee status.
[5] Ultimately, the IRB vacated her refugee status although her convictions had been quashed on the grounds that she had been convicted without representation by counsel of her own choosing. Mr. Justice O'Reilly dismissed the judicial review of the IRB's decision (see Holubova v. Minister of Citizenship and Immigration 2003 FC 1386) holding that the quashing of the conviction did not alter the fact that she had made misrepresentations in her refugee claim.
[6] In 1999, the Applicant and her family applied for Permanent Resident status based on their refugee status. That application is still pending having been delayed as the result of proceedings to vacate her refugee status. The Applicant is eligible to be considered as part of the family's application despite her loss of refugee status.
[7] The Applicant had applied for a Pre-Removal Risk Assessment ("PRRA") in October 2002 which was rejected in July 2003. The Court was advised at the hearing of this motion that the previous day Applicant filed both a motion to extend time and a leave application in respect of the July 15, 2003 PRRA decision.
[8] On March 5, 2004, Louise Harvey, an Expulsion Officer (the "Officer") met the Applicant to arrange for her removal from Canada. The only issue raised by the Applicant was whether the children could stay in Canada. The Officer subsequently gave the Applicant a Direction to Report.
[9] On March 16, 2004, the Applicant requested deferral of the removal on the grounds of a medical condition arising from an automobile accident sustained in 2003. Two medical reports were attached to the request.
[10] The first of the reports spoke of soft tissue injury and an exercise program designed to continue for 3-4 months. The second report raised the matter of abdominal pains which were being investigated. This report concluded that plans to travel are not recommended and are "contraindicated for medical reasons".
[11] The record establishes that the Officer forwarded these reports to the Medical Services Branch of Citizenship and Immigration Canada.
[12] On March 22, Dr. Gollish of that Branch reported that he had telephoned the two doctors to obtain further medical information. On the basis of the information available to him, he concluded that the Applicant's physical injuries were a common type treated on an out-patient basis and resolve over time. As to the abdominal pains, no specific diagnosis was offered. He concluded that her medical condition did not prevent her from travelling to Prague.
[13] On the basis of the medical advice and other information, the Officer concluded that there were insufficient grounds for the exercise of her limited discretion to defer.
[14] The Applicant then forwarded another two medical opinions, one from the doctor who provided the first report and a second opinion from a new doctor. The Officer agreed to reconsider her decision and forwarded these reports to the Medical Services Branch.
[15] This latest medical evidence advised that the Applicant's therapy should not be discontinued and that she was awaiting investigation for a possible heart condition. There is a paucity of detail about this latest possible medical condition.
[16] Dr. Gollish's March 30 report to the Officer confirmed that there was nothing new in the report on her therapy, that therapy could be continued in the Czech Republich and that she could be made comfortable for the trip to Prague. As to the heart condition, there was no indication of cardiac risk factors, symptoms or current cardiac medication. As a result, he concluded that without a firm diagnosis or reason for diagnosis, there was, on the basis of those letters, no reason for the Applicant not to travel.
[17] The Officer then reconfirmed her decision not to defer removal.
[18] Just to round out the facts on this case, the Applicant filed an affidavit in these proceedings. In that affidavit, she raises further grounds for deferral not previously claimed or raised with the Officer. These include the pending permanent resident application and that her son has epilepsy and requires the guidance of both parents.
[19] The record discloses no particulars of the son's condition, a subject matter that one would reasonably thought would have been raised long before now.
[20] The record is also devoid of any evidence that medical treatment, particularly the therapy for her physical injuries, is not available in the Czech Republic. Similarly, the record is bereft of clear evidence that the Applicant cannot endure eight hours of flight from Canada to the Czech Republic.
[21] In considering a stay of a removal order, regard must be had to the scope of the decision the Officer could make, as well as the nature of this proceeding. The deferral request and this stay is not the forum for duelling medical opinions, rebuttal, reply, sur-rebuttal and sur-reply.
[22] The deferral of a removal order is not the forum for a "pre Humanitarian and Compassionate" application involving a substantive review of the best interests of the children (see Simoes v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 936).
[23] The fact that there are pending applications may be a factor to consider but it cannot, per se, be the reason to defer a removal order. To do so would be to create an automatic stay regime where the legislation makes no such provision. It is not for the Court to rewrite the Immigration and Refugee Protection Act, S.C. 2001, c.27 or to "read in" that which was never intended.
[24] It is trite law that the Applicant must meet the tripartite test in Toth v. Canada (Minister of Employment and Immigration) (1988) 86 N.R. 302 (F.C.A.).
[25] In the circumstances of a refusal to defer removal, the serious issue test generally requires a greater consideration of the merits of the legal issue because in a stay of a removal, the applicant effectively receives the very relief sought in the underlying application (see Padda v. Canada (Minister of Citizenship and Immigration) 2003 FC 1081).
[26] The Applicant attacks the Officer's decision on several grounds including:
(a) failure to consider best interests of the child - The Officer did consider the minor child's circumstances but, as indicated earlier, there is a limit to the discretion of the Officer. The other child is an adult, the epilepsy claim is new and unsubstantiated.
(b) pending landing application - This was not raised and is, in these circumstances, only one of several factors.
(c) lack of sensitivity to the Applicant - There is no basis for this assertion. The Officer was fair, allowed in new materials, sought out expert assistance and agreed to reconsider her first decision not to defer.
(d) absence of reasons - There was more than sufficient details for the Applicant to understand why the deferral request was not granted. The Officer cannot be expected to do more than she did in these circumstances.
(e) disregard of medical advise - There was no disregard for the other doctor's opinions, however, there was an absence of detail in those reports. It was not unreasonable for the Officer to prefer and rely on the Medical Branch's advice. The burden of proof rests with the Applicant.
(f) s. 7 of the Charter, risk to security of the person - There is an insufficient evidentiary base from which to make this allegation.
[27] The Applicant cannot meet the first threshold of a "serious issue".
[28] To the extent that irreparable harm should be considered in the alternative to the serious issue finding, the weight of the evidence does not support this criterion. There is no balance of evidence showing that either the Applicant's therapy will be discontinued, that medical treatment for abdominal pains will not be available or that her possible heart condition is so serious as to preclude travel. Therefore, there is insufficient evidence of irreparable harm.
[29] Balance of convenience consideration would be purely academic.
[30] For these reasons, the application for a stay was dismissed.
"Michael L. Phelan"
JUDGE
Ottawa, Ontario
April 5, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM- 3043-04
STYLE OF CAUSE: Drahomira Holubova v. The Solicitor General of Canada
PLACE OF HEARING: Ottawa and Toronto
DATE OF TELECONFERENCE: April 2, 2004
REASONS FOR ORDER: The Honourable Mr. Justice Phelan
DATED: April 5, 2004
APPEARANCES:
Mr. Jospeh S. Farkas for the Applicant
Toronto, Ontario
Mr. Tamrat Gebeyehu for the Respondent
Toronto, Ontario
SOLICITORS OF RECORD:
Mr. Joseph S. Farkas for the Applicant
Toronto, Ontario
Mr. Morris Rosenberg for the Respondent
Deputy Attorney General of Canada