Federal Court Decisions

Date: 20061123

Docket: IMM-658-06

Citation: 2006 FC 1401

Ottawa, Ontario, November 23, 2006

PRESENT:     The Honourable Mr. Justice O'Reilly

BETWEEN:

GEORGE ANTHONY BETTON

Applicant

and

THE MINISTER OF PUBLIC SAFETY

AND EMERGENCY PREPAREDNESS

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

[1]               Mr. George Betton was ordered to leave Canada in December 2005. He asked an immigration enforcement officer to defer his removal on the grounds that his wife was pregnant, and she had health concerns that would be exacerbated by the stress of his departure. He stated that their children would be adversely affected because he provided them financial and emotional support, and his wife would have difficulty caring for them in her current condition. He asked for a deferral until his wife gave birth or until his application for humanitarian and compassionate relief had been decided. The officer refused.

[2]               Mr. Betton obtained a stay of the removal order pending this application for judicial review. He argues that the officer failed to consider a medical report describing the impact his departure would have on his wife’s health. He also argues that the officer failed to consider the best interests of his children. He asks me to order a reconsideration of his deferral request by another officer.

[3]               I agree that the officer failed to consider the best interests of Mr. Betton’s children and must, therefore, allow this application for judicial review.

I.  Issues

1. Did the officer fail to consider the medical evidence?
2. Did the officer fail to consider the best interests of Mr. Betton’s children?

II.  Analysis

[4]               Before considering the specific issues raised by Mr. Betton, I note that enforcement officers have a limited discretion to defer removal. In turn, the Court will intervene only where officers overlook an important factor or seriously misapprehend the circumstances surrounding the removal: Ramada v. Canada (Solicitor General), 2005 FC 1112, [2005] F.C.J. No. 1384 (T.D.) (QL).

1.  Did the officer fail to consider the medical evidence?

[5]               Included in his submissions to the enforcement officer was an affidavit sworn by Mr. Betton’s spouse. In it, she explained her concerns about his imminent departure, including the impact on her health. She attached opinions from her physician that corroborated her concerns.

[6]               In his reasons, the officer took note of Mr. Betton’s spouse’s pregnancy, the stress she was under and her fluctuating blood count, but did not specifically mention the medical report. However, he did state that he considered her affidavit and its attached exhibits. Mr. Betton argues that the officer had an obligation to consider and explicitly refer to the medical report, given that it provided professional corroboration of her personal concerns. In the circumstances, I disagree.  There was little, if anything, in the medical reports that was not contained in the affidavit or the other submissions to the officer. He clearly took note of the main concerns. I cannot find anything in the officer’s approach to this evidence that would justify the Court’s intervention.

            2.  Did the officer fail to consider the best interests of Mr. Betton’s children?

[7]               Within their limited discretion, enforcement officers must consider submissions about the immediate impact that removal might have on the departing persons’ children: Munar v. Canada (Minister of Citizenship and Immigration), 2005 FC 1180, [2005] F.C.J. No. 1448 (T.D.) (QL). In this case, Mr. Betton submitted that his removal would seriously affect his children because they would suffer without his financial and emotional support. Further, he stated that his wife would have difficulty caring for the children on her own in her current condition.

[8]               The officer acknowledged Mr. Betton’s family but stated that he was “not qualified” to determine the best interests of a child. The respondent argues that this answer was appropriate in the circumstances, given both the limited role of enforcement officers and general nature of the submissions about Mr. Betton’s children. The concerns about the children, the respondent suggests, were not immediate. They were long-term and more appropriately dealt with in Mr. Betton’s application for humanitarian and compassionate relief. Accordingly, the officer should not have been expected to address them.

[9]               In my view, at least some of the concerns about Mr. Betton’s children were immediate – in particular, their care and financial support in the short-term. The officer should have considered whether a deferral of Mr. Betton’s removal was necessary to allow an opportunity for appropriate arrangements to be made for the children.

[10]           Given that the officer failed to consider an important factor, I must allow this application for judicial review and order another officer to consider Mr. Betton’s request for a deferral. 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 allowed.

2.                  The applicant’s request for deferral must be re-assessed by a different officer.

3.                  No question of general importance is stated.

“James W. O’Reilly”

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-658-06

STYLE OF CAUSE:                          BETTON v. MPSEP

PLACE OF HEARING:                    Toronto, Ontario

DATE OF HEARING:                      November 15, 2006

REASONS FOR JUDGMENT

 AND JUDGMENT:                         O’REILLY J.

DATED:                                             November 23, 2006

APPEARANCES:

SOLICITORS OF RECORD: