Docket:
IMM-7894-11
Citation:
2011 FC 1384
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
BETWEEN:
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DUMITRU CHRISTIAN
SPARHAT
CARMEN LILIANA SPARHAT
ILINCA SPARHAT
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS AND THE CANADA BORDER SERVICES
AGENCY
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Respondent
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REASONS FOR ORDER
LEMIEUX J.
I. Introduction
[1]
For the following reasons, on November 10, 2011, I granted a stay
of removal to Romania of the Sparhat family, the father Dumitru, the mother
Carmen and their daughter Ilinca, 12 years old.
[2]
This application for judicial review is attached to an application
for leave and judicial review (ALJR) of a decision of November 4, 2011,
rendered by a removal officer.
[3]
The youth, Ilinca, is at the centre of the arguments advanced by
the applicants, who applied for protection from Canada on December 4,
2007, out of fear of the Romanian mafia, which it seems, had allegedly
kidnapped Ilinca in September 2007 outside of her school and was confined
for several hours.
[4]
On March 22, 2010, the Refugee Protection Division rejected
the applicants on the ground that they were not credible. Ilinca did not testify. Their
ALJR and their pre-removal risk assessment application were dismissed by a
judge of this Court.
[5]
Their application for permanent residence in Canada, filed on
December 6, 2010, and based on humanitarian and compassionate grounds, was
apparently not reviewed before August 12, 2012.
II.
The officer’s decision
[6]
The Sparhat family’s stay application was supported by two
psychological assessments; (1) the first by psychological services at the
Commission Scolaire Marie-Victorin dated October 20, 2011, and (2) the
other by Doctor Woodbury dated October 24, 2011.
[7]
Doctor Woodbury’s findings are the following:
I am in complete agreement with the findings of the
School Psychologist, Mme Suzanne Comeau. In addition, it is my professional
judgement that, as Ilinca is in an extremely fragile psychological state, she
is at extreme risk of irreparable psychological damage if she were
forced to return to Romania.
…
If, however, she is forced against her will to go to
Romania, a place she associates with the terror of her kidnapping, her symptoms
will be exacerbated and her suffering increase. The stress of
deportation is always acute, and any child can be expected to dread such a
wrenching transition. But in Ilinca’s case, given her already severe
reactions, and the present decrease in functioning, she is uniquely vulnerable
to further deterioration.
…
This deterioration will be worsened by the lack of
any social safety net in Romania. The re-traumatization of deportation will,
almost certainly, cause her irreparable psychological damage. Any psychiatric
or psychological interventions after the fact can only attempt to repair what
has been broken: In this case, the mental health of a gifted young girl.
[Emphasis mine]
[8]
The removal officer based the decision on several elements,
including that of Illinca’s psychological state, which is determinative. The officer
reasoned as follows:
4. The problem that is perceived for the daughter is
that of permanent psychological scaring therefore leaving one to believe
that it is possibly untreatable. After reading the documents submitted by the
client’s representative, one is to perceive the problem as possibly permanent
therefore the solution of deferring the removal is not questionable due to the
fact that the problem will always exist and an indeterminate deferral cannot be
the solution.
5. Clients were given the negative PRRA decision on
the 14Sep2011. A deferral of removal has already been given indirectly seeing
on how they have already benefited from two months to prepare for their
departure. According to CBSA policy, “The IRPA stipulates that if a removal
order is enforceable, the foreign national against whom it was made must leave
Canada immediately and it must be enforced as soon as reasonably practicable.”
6. Deferring the removal until the H&C decision
is rendered is only a temporary solution for the client’s daughter. The problem
will still exist if the H&C results are not in their favour and as
mentioned previously deferring the removal indefinitely cannot be a future
solution.
[Emphasis added]
III. Analysis
and conclusion
[9]
It is not in dispute that, to obtain a stay from this Court, the
Sparhat family must show this Court the following elements:
a. One or more serious questions to argue assessed on the basis of “quite
a strong case” (See Baron v. Canada (Minister of Public
Safety and Emergency Preparedness), 2009 FCA 81, [2010] 2 FCR 311,
at paragraph 67);
b. That
she will suffer irreparable harm if the stay is not granted; and
c. That
the balance of convenience is in its favour.
[10]
In
my view, the plaintiffs have established the existence
of the following serious questions to debate, judged on a high standard:
•
Did the officer exceed jurisdiction in assessing the psychology
reports in this case without consulting the Department’s medical service.
•
Did the officer assess the best interests of the child poorly by
refusing the stay on the ground that “one is to perceive the problem as
possibly permanent therefore the solution of deferring the removal is not
questionable due to the fact that the problem will always exist and an
indeterminate deferral cannot be the solution.”
•
Did the officer commit an error in speculating that in Romania “we
can safely expect that programs offered in the educational environment would
all be adequate.”
[11]
The Sparhat family demonstrated the existence of irreparable harm
on the basis of the assessment of Doctor Woodbury, who determined that “the
re-traumatization of deportation will, almost certainly, cause her irreparable
psychological damage.”
[12]
In the circumstances of this case, the balance of convenience
favours the applicants.
“François Lemieux”
Ottawa, Ontario
November 30, 2011
Certified true
translation
Catherine Jones,
Translator
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