ROMULO ANDRADE LIMA v. RUBIA GONDIM LIMA, 2020 FC 539

Date: 20200421 Docket: IMM-3741-19 Citation: 2020 FC 539 Ottawa, Ontario, April 21, 2020 PRESENT: The Honourable Mr. Justice Mosley BETWEEN:ROMULO ANDRADE LIMA and RUBIA GONDIM LIMAApplicantsandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent JUDGMENT AND REASONS [1] This is an application for judicial review of the refusal by an enforcement officer to defer the Applicants removal from Canada. TheApplicants are Brazilian nationals and failed refugee claimants who assert that they should not be removed while their recently submittedapplication for an exemption from visa requirements on Humanitarian and Compassionate [H&C] grounds under

section 25 of theImmigration and Refugee Protection Act, SC 2001, c 27 [IRPA] is still pending. [2] The Applicants, Romulo Andrade Lima and Rubia Gondim Lima, are nationals of Brazil and husband and wife. As of June 2019,Mr. Lima was 63 years old and his wife Rubia was turning 60. [3] The Limas arrived in Canada in May 2012 and sought refugee protection in November of that year. They waited several years tohave their refugee claim heard by the Refugee Protection Division [RPD], which eventually took place on October 5, 2018. By adecision dated October 16, 2018, their claim was denied.

They brought an application for leave and judicial review of the RefugeeBoard’s decision, but leave was denied. [4] The Canada Border Services Agency [CBSA] then began taking steps to remove the Applicants. Removal arrangements weredeferred in May 2019 until mid-June as a physician recommended that Mr. Lima not fly during this timeframe given a recent kneesurgery. [5] On June 7, 2019, the Applicants requested a deferral of their removal until their H&C application was submitted and processed. TheH&C request was submitted on or around July 25, 2019 following both the deferral refusal and the stay.

On November 29, 2019, theApplicants were advised that the H&C application could not be processed, because less than 12 months had elapsed since the FederalCourt had refused the application for leave and judicial review of their negative RPD decision. The H&C application was thenresubmitted. [6] On June 14, 2019, the Officer denied the request and refused to delay their removal pursuant to

section 48 of the IRPA, noting thatthe evidence provided by the Limas, including on their various medical conditions, was not sufficient to warrant deferral. [7] The Applicant’s then brought an application for a stay of removal which was granted by Mr. Justice Denis Gascon on June 27, 2019.In granting the stay, Justice Gascon applied the elevated threshold developed in Wang v Canada (Minister of Citizenship andImmigration), 2001 FCT 148, [2001] 3 FC 682 (F.C.) and endorsed by the Federal Court of Appeal in Baron v Canada (Minister ofPublic Safety and Emergency Preparedness), 2009 FCA 81 [Baron FCA].

He went beyond the "“serious issue”" branch of the tripartitetest and reviewed in-depth the underlying application: Sanabria Castillo v Canada (Public Safety and Emergency Preparedness), 2008FC 172 at para 11. In finding in favour of the Applicants, this "“decision on the interlocutory application effectively grants the reliefsought in the underlying judicial review application”": Patel v Canada (Citizenship and Immigration), 2018 FC 882 at para 4. [8] It is worth noting that Mr.

Lima has a number of medical conditions, including a heart block (requiring a pacemaker), prostatecancer, left total knee arthroplasty, reactive depression, and coronary artery disease. All of these conditions require monitoring forprogression on a six months or longer cycle. According to his physician, "“over the past 2-3 years Mr.

Lima’s health concerns havebecome significantly more complicated.”" His pacemaker, as an example, requires "“regular follow up to maintain optimal pacemakerprogramming as well as to identify any system problems”". [9] A letter from a person described as a Brazilian doctor asserted that Mr. Lima would be unable to receive adequate medical care inBrazil and would not survive. Ms. Lima apparently also has a heart condition. The letter writer also asserts that she would undoubtedlysuffer. Documentary evidence from credible international sources raise serious concerns about the state of the Brazilian healthcaresystem.

It has been, for some years, dependent on Cuban doctors who are now being repatriated due to what is described as"“unacceptable conditions”". According to the British Medical Journal, constitutional rights to health care in Brazil have beenundermined through austerity policies. [10] The applicable standard of review of decisions made by enforcement officers under

section 48 of the IRPA is reasonableness: Lewisv Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at para 43; Canada (Public Safety and Emergency

Preparedness) v Shpati, 2011 FCA 286 at para 27; Baron FCA at para 25. [11] The Supreme Court of Canada’s recent decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65[Vavilov] articulates what reasonableness review entails.

The mark of a reasonable decision, as noted by the majority in Vavilov at para85, is that it is "“based on an internally coherent and rational chain of analysis”" that is "“justified in relation to the facts and law thatconstrain the decision maker”". [12] The Officer’s decision to refuse a deferral request is a discretionary decision and is owed deference, and reviewing courts are not tosubstitute their own notion of the appropriate answer (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59).

At thesame time, in Vavilov, the Supreme Court cautioned at para 135 that "“[m]any administrative decision makers are entrusted with anextraordinary degree of power over the lives of ordinary people, including the most vulnerable among us.

The corollary to that power is aheightened responsibility on the part of administrative decision makers to ensure that their reasons demonstrate that they have consideredthe consequences of a decision and that those consequences are justified in light of the facts and law”". [13] In this instance, the Officer discounted or otherwise improperly weighed probative evidence, rendering the decision unreasonable.The Officer stated that: "“Upon return to Brazil Mr. Lima will have ample time to arrange for monitoring and follow-up care asrequired”".

This statement exhibits a lack of understanding of the evidence that indicates that Mr. Lima may be unable to access eithermonitoring or follow-up care. The Applicants are of modest means.

The documentary evidence indicates that they may not be able toaccess healthcare that is not covered under the limited public health system in Brazil or afford services available in the private sector. [14] The Officer’s decision displays unjustified skepticism about the credibility of the independent and reputable news sources such asDeutsche Welle and peer reviewed journals including the International Journal for Equity in Health and BMJ Global Health.

The Officeroffers no source in favour of his observation that the issues brought forth by the articles are similar to concerns that Canadian media andgovernment acknowledge to be problems in the Canadian health care system such as underfunding, long wait times, limited access, andpoor long term planning. At best this appears to be anecdotal or the Officer’s personal opinion. [15] Enforcement officers have discretion to defer removal when failure to defer will expose the applicant to the risk of death, extremesanction or inhumane treatment.

H&C applications alone will not justify deferrals, "“absent special considerations”", unless based upon athreat to personal safety: Wang, above, at para 45; Baron FCA at para 51.

Special considerations are broader than a threat to personalsafety but do not include "“the strength or compelling nature of the underlying H&C application”": Danyi v Canada (Minister of PublicSafety and Emergency Preparedness), 2017 FC 112 at para 32. [16] On the facts in the record before the Court, I am satisfied that the Officer’s decision was unreasonable for failing to adequatelyconsider the Applicants’ medical conditions as special circumstances warranting deferral. [17] In light of the prevailing global restrictions on travel due to the Covid-19 pandemic I see no practical reason to refer the deferralrequest to another officer for reconsideration.

It may be that the Minister will consider that an administrative stay is warranted until suchtime as the Applicants’ request for an H&C exemption is dealt with. That is a matter for the Minister to determine. [18] No questions for certification were proposed. JUDGMENT IN IMM-3741-19 THIS COURT’S JUDGMENT is that the application is granted. No order is made to remit the matter for reconsideration and noquestions are certified. "Richard G.

Mosley" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-3741-19STYLE OF CAUSE: ROMULO ANDRADE LIMA and RUBIA GONDIM LIMA V THE MINISTER OFPUBLIC SAFETY AND EMERGENCY PREPAREDNESSPLACE OF HEARING: toronto, ontarioDATE OF HEARING: february 11, 2020JUDGMENT AND REASONS: MOSLEY J.DATED: April 21, 2020 APPEARANCES: H.J. Yehuda Levinson For The ApplicantSAmy King For The Respondent SOLICITORS OF RECORD:

Levinson & Associates Toronto, Ontario For The ApplicantS Attorney General of Canada Toronto, Ontario For The Respondent