ALFONSO RUSSO Applicant v. THE MINISTER OF PUBLIC SAFETY, 2013 FC 405

Date: 20130422 Docket: IMM-2983-12 Citation: 2013 FC 405 Toronto , Ontario , April 22, 2013 PRESENT: The Honourable Madam Justice Heneghan BETWEEN: ALFONSO RUSSO Applicant and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent REASONS FOR JUDGMENT AND JUDGMENT INTRODUCTION [ 1 ] Mr. Alfonso Russo (the “Applicant”) seeks judicial review of the decision of S. Behrue (the “Officer”) of the Canada Border Services Agency (the “CBSA”). In that decision dated March 29, 2012, the Officer refused the Applicant’s request for deferral of his removal from Canada that was scheduled for March 30, 2012.

Upon motion, the removal was stayed by Order of Justice Shore on March 29, 2012. BACKGROUND [ 2 ] The Applicant came to Canada in 1967 as a permanent resident, along with his family. He was ten years old at the time. He has resided in Canada since 1967. The Applicant has a history of mental health issues. He was diagnosed as Bipolar Type II in December 2011 and has been prescribed anti-depressant and anti-psychotic medication to deal with that illness. [ 3 ] In July 2007, the Applicant was convicted of assault with a weapon.

Allegedly, the charge arose from an incident in a store when the Applicant waved a fondue fork at a store clerk. It appears that this behaviour was related to his mental illness. Justice Shore referred to this event in his Order granting a stay of removal. [ 4 ] The Applicant failed to appear for an interview in December 2007. On July 25, 2008, the Applicant was found inadmissible pursuant to paragraph 36(1) (

a) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (the “Act”) and was ordered deported.

[5] An arrest warrant for removal was issued on May 19, 2009. In June 2009, the Refugee Protection Board, Immigration AppealDivision (the “IAD”), appointed a designated representative, pursuant to section 167(2) of the Act to assist the Applicant in hisproceedings before it. In August 2009, the IAD issued a two-year conditional stay of the deportation order. One condition of the stay wasthat the Applicant was to be supervised by the Toronto Bail Program.

The Applicant failed to appear for oral interviews before the IADin January 2010 and April 2010. [6] By letter dated April 21, 2010, that Program withdrew its supervision because the Applicant had stopped taking his medicationand was increasingly uncooperative. The CBSA requested a review of the conditions of the stay of the deportation order on September22, 2010. [7] The Applicant failed to appear at a hearing before the IAD scheduled for October 24, 2011. On October 24, 2011, the IADcancelled the stay of the removal order and dismissed the Applicant’s appeal. On November 17, 2011, he was arrested and detained.

Heapplied for a Pre-Removal Risk Assessment on January 9, 2012. A negative decision was rendered in this regard on February 13, 2012. [8] The Applicant submitted a request for deferral of his removal on March 26, 2012, which was refused on March 29, 2012. [9] In refusing to defer the Applicant’s removal, the Officer noted that the Applicant had applied for permanent residence in Canadaon humanitarian and compassionate (“H&C”) grounds only four days before his scheduled removal. He found that given the processingtime for such applications, no decision was imminent.

He also said that some of the Applicant’s actions seemed to indicate a wanton,deliberate, and calculated disregard for the immigration process. [10] The Officer considered the Applicant’s mental health. He had before him a letter from a general practitioner. The Officerafforded this letter little weight on the grounds that it was undated, and as such, it was not clear if it reflected the Applicant’s currentcondition.

I note, however, that this letter is in fact dated and the date is March 26, 2012. [11] As well, the Officer noted that the removals officer had inquired with the Migration Integrity Assistant (“MIA”) in Rome whoreported that if the Applicant had a medical condition and no family or support in Italy, he would be admitted to the nearest hospital, andthen to a long-term care facility. The CBSA provided the Applicant with information about a shelter near the airport in Rome andarranged an escort to Italy and a week’s worth of medication.

SUBMISSIONS [12] The Applicant argues that the Officer improperly relied on extrinsic evidence which was not disclosed to him, thereby giving riseto a breach of procedural fairness. This evidence consisted of the opinion from the MIA in Rome; a letter from a Mr.

Sharp with theToronto Bail Program suggesting that the Applicant does not comply with his bail conditions and that one of his brothers in Canadawants him returned to Italy; an undisclosed note in the Certified Tribunal Record (“CTR”) that suggests the Applicant would be givenasthma medicine to take to Italy rather than medication for his psychiatric conditions; and finally, information from the Italian consulatein Italy that suggests a lack of available facilities in Italy to provide care for the Applicant. [13] The Applicant argues that the CTR is incomplete because although the Officer refers to correspondence dated March 16, 2012,with the MIA in Rome, the CTR does not include any correspondence on that date or containing the direct quotation relied on by theOfficer.

The Officer relied on this correspondence to conclude that medical care would be available to the Applicant. [14] The Applicant submits that the omission of material evidence from a CTR is sufficient ground to overturn a decision, relying onthe decision in Li v. Canada (Minister of Citizenship and Immigration) (2006), 2006 FC 498 , 54 Imm.L.R. (3d) 189. He arguesthat the missing information is important because other documents in the CTR contradict the Officer’s finding as to the availability ofcare.

The Officer concluded that he “would” be placed in a long-term care facility while the MIA correspondence says that he “may” beplaced in such a facility. [15] The Applicant further argues that the Officer ignored relevant evidence, that is, evidence about his mental health condition. Healso submits that the Officer made unreasonable conclusions in light of the evidence, in particular in finding that the IAD had consideredH&C factors and in finding that the Applicant was aware of the nature of his immigration proceedings.

[16] Finally, the Applicant also submits that the Officer’s reasons are inadequate and fail to meet the standard of justification,transparency, and intelligibility as discussed in Dunsmuir v. New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190 at para. 47 andOkbai v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 229 , 405 F.T.R. 315 at paras. 23-24. [17] The Minister of Citizenship and Immigration (the “Respondent”) submits that the Officer committed no breach of proceduralfairness and that the decision to refuse deferral of removal is reasonable, having regard to the limited discretion granted by

section 48 ofthe Act. While the Officer may consider compelling or special personal circumstances, he is not authorized to consider H&C factors indeciding whether to defer removal and an outstanding H&C application is no bar to removal. DISCUSSION AND DISPOSITION [18] The first matter to be addressed is the applicable standard of review. For questions of procedural fairness, the standard iscorrectness; see the decision in Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12 , [2009] 1 S.C.R. 339at para. 43.

The standard of review for a decision refusing to defer removal is reasonableness; see the decision in Baron v. Canada(Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 , [2010] 2 F.C.R. 311 (F.C.A.) at para. 25. [19] The Applicant raises two issues of procedural fairness, that is, reliance by the Officer on extrinsic evidence without giving himan opportunity to respond and the omission of material from the CTR. [20] As a general rule, evidence that is otherwise publicly available is not considered “extrinsic” evidence. In this regard I refer to thedecisions in Jiminez v.

Canada (Minister of Citizenship and Immigration), 2010 FC 1078 at para. 19 and Level v. Canada (Minister ofPublic Safety and Emergency Preparedness) (2008), 2008 FC 227 , 324 F.T.R. 71. However, the extrinsic evidence at issuehere is not generally available to the public. Some of the documents relied on by the Officer concerned only the Applicant, for examplethe letter from the Toronto Bail Program and the correspondence from the MIA in Italy. In my opinion the failure to disclose thisextrinsic evidence was a breach of procedural fairness. [21] The absence of documents from the CTR is also problematic.

I agree with the Applicant that the missing information is materialand highly relevant. The Officer made a clear finding that adequate health care would be available for the Applicant in Italy, yet thedocument upon which he purportedly relied is not in the record. The Applicant is suffering from a severe mental illness. It is notsufficient for the Officer to make a statement about the availability of health services for a severe mental illness without being able toshow the evidence he relied upon, and the record is silent in that regard.

This is a reviewable error against the standard addressed in Li,supra, para. 15. [22] The Officer, in my opinion, failed to appreciate the personal circumstances of the Applicant, the critical factor of his illness thatled to the criminal charge against him and the loss of the stay of deportation by the IAD.

The only recourse available to the Applicant tostay in Canada is his pending H&C application which is based upon his personal circumstances, including the length of time he has beenin Canada. [23] The Officer was provided with a copy of the Applicant’s H&C application, as part of the documentation submitted in support ofthe deferral request. In his decision upon the deferral request, the Officer noted that the H&C submissions advanced by Counsel closelyparalleled those considered by the IAD.

The Officer commented specifically that the IAD had considered the Applicant’s mental health.The Officer noted that this seemed to be the prevailing H&C factor. [24] The Officer failed to appreciate the evidence before him. He had a letter from the Applicant’s doctor that was dated March 26,2012. The Officer dismissed this letter out of hand, saying that “I note that this letter is undated and therefore I am unable to assess if it isa current reflection of Mr. Russo’s current medical condition.” [25] The letter is dated March 26, 2012.

It says that the Applicant suffers from major depressive disorder with psychotic features andthat he does not have the coping skills to live in a country he has not been in for many decades. The deferral request is also dated March26, 2012. It is hard to imagine what more the Officer may have wanted in terms of timeliness.

[ 26 ] In my view, the Officer erred by assuming that the Applicant’s H&C submissions had been considered by the IAD. Those submissions were not presented to the IAD whose most recent involvement with the Applicant dealt only with the termination of the stay of deportation. That stay had been granted by the IAD in August 2009. The Officer’s conclusions relative to the H&C considerations relevant to the Applicant were not reasonable. [ 27 ] It is not necessary for me to fully address the last argument raised by the Applicant, that is, the argument concerning the sufficiency of the Officer’s reasons.

In light of my observations above, I have concluded that the Officer’s decision does not meet the standard of reasonableness as discussed in Dunsmuir , supra . [ 28 ] In the result, this application for judicial review is allowed, the Officer’s decision is set aside and the matter is remitted to another officer for determination. There is no question for certification arising. JUDGMENT This application for judicial review is allowed, the Officer’s decision is set aside and the matter is remitted to another officer for determination. There is no question for certification arising. “E. Heneghan” Judge

FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-2983-12 STYLE OF CAUSE: ALFONSO RUSSO v. MPSEP PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: November 15, 2012 REASONS FOR JUDGMENT AND JUDGMENT: HENEGHAN J. DATED: April 22, 2013 APPEARANCES : Ms. Erin Bobkin FOR THE APPLICANT Ms. Alyssa Manning FOR THE APPLICANT Ms. Asha Gafar FOR THE RESPONDENT SOLICITORS OF RECORD : Refugee Law Office Toronto , Ontario FOR THE APPLICANT Refugee Law Office Toronto , Ontario FOR THE APPLICANT

William F. Pentney Deputy Attorney General of Canada Toronto , Ontario FOR THE RESPONDENT