Date: 20081107
Docket: IMM-4729-08
Citation: 2008 FC 1248
BETWEEN:
TAMAR BEDROS MAZAKIAN
PATILE MEGUERDI BERBERIAN
AND PARDY BERBERIAN
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR
ORDER
LEMIEUX, J.
Introduction
[1]
On
Friday, October 31, 2008, after hearing the parties in French, I granted a stay,
with reasons to follow, from the execution of the applicants’ removal to Lebanon scheduled
for later that afternoon. These reasons are delivered in English for the
benefit of the principal applicant, Tamar Mazakian, a citizen of Lebanon, as
are the two other applicants: her daughter Patile, age 19 and her daughter
Pardy, age 14 also both citizens of Lebanon.
[2]
The
applicants challenge, in their underlying judicial review application, the
October 23, 2008 decision of an Enforcement Officer (the Officer) who refused
to defer their removal from Canada.
[3]
It
is settled law that a removals officer has a limited discretion to defer the
execution of a lawful deportation order because of the wording of subsection
48(2) of the Immigration and Refugee Protection Act (the Act)
which provides “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 is
reasonably practicable”.
[4]
It
is also settled law that a person’s inability to travel in the execution of
that person’s removal is a recognized exception to the requirement that a
removal order be executed (Ramada v. Canada (Solicitor General), [2005] F.C.J. No. 1384).
In the context of a decision to remove children in the execution of a removals
order, the jurisprudence of this Court is to the effect that a Removals Officer
is not obliged to conduct an in-depth analysis on the best interests of the
children but must examine the interests of the children to determine if there
are personal circumstances which are compelling enough to warrant deferral such
as completing a school year (see Natoo v. Canada (Minister of Public Safety
and Emergency Preparedness), 2007 FC 402 at paragraph 16).
[5]
The
principal question in this stay application is whether the Officer erred in
refusing to defer the applicants’ removal in the light of the facts in the
record concerning the principal applicant’s mental health and compelling
factors related to her daughters.
[6]
More
specifically, the fragility of the principal applicant’s psychological health
was known to the Officer who had received advice from Medical Officer Walter Waddell
of Citizenship and Immigration Canada (CIC) on September 16, 2008 that
she was not fit to travel at that time on account of her psychological
instability evidencing high suicidal risk.
Facts
[7]
The
applicants entered Canada as a family unit after the principal
applicant’s husband, Mr. Meguerdij Berberian, the father of Patile and Pardy,
had obtained a work permit. The applicants accompanied him entering Canada on visitor’s
visas.
[8]
In
August 2003, Mr. Berberian returned to Lebanon in order to
apply for another work permit which was refused by the Canadian authorities. He
has not returned to Canada and is said by the principal applicant they are
separated. The applicants overstayed their visitor’s visa and (1) in December
2004 made refugee claims on account of their Armenian ethnicity and
Christian religion. Those claims were refused on July 13, 2005; leave
for judicial review of that decision was not sought. (2) On November 7, 2007,
the applicants made an application for a Pre-Removal Risk Assessment (PRRA)
which was refused on February 26, 2008 with no leave for judicial review
sought from a judge of this Court.
[9]
The
record also indicates that on June 13, 2008, CIC in Montreal received
from the principal applicant an application for permanent residence to Canada
based on humanitarian and compassionate (H&C) considerations which was
considered by CIC in Vegreville, Alberta and referred
back to Montreal on July
24, 2008 for decision which is still pending. Their H&C application was
filed on June 10, 2008 by Raed Mahko, an immigration consultant, who explained
to CIC that a disbarred lawyer had previously been instructed by the principal
applicant to file the H&C application on February 26, 2008 but had
failed to carry out his mandate.
[10]
The
first of a series of interviews between the Officer and the principal applicant
for the purpose of scheduling the applicants from Canada was held on April
29, 2008. At that meeting, she was informed of the negative PRRA decision.
She requested that her daughters be allowed to complete their school terms; a
request which was granted by the Officer. Their departure from Canada was
scheduled for July 15, 2008 with a follow up interview to ensure
appropriate travel documentation was complete scheduled for May 15, 2008.
[11]
On
May 12, 2008, the Officer was advised by the principal applicant’s
sister that Mrs. Mazakian had been hospitalized and a social worker would be
present at the interview on May 15th, rescheduled for later in the
day. That interview was held with the Officer’s notes reflecting the fact the
principal applicant was incapable of answering questions or understand what
was going on. The Officer requested the social worker to provide her
with medical certificates in order to enable her to seek advice from Ottawa.
[12]
On
July 2, 2008 in the morning, the Officer sent Dr. Waddell medical
documents for his consideration in order to advise her in regards to the
removal. Dr. Waddell responded promptly the same day to advise her in the
following terms:
I reviewed the reports, various
documents and notes appended to your fax of 2 July ’08 (17 + 1 pages). In
summary, Ms. Mazakian suffered an acute stress disorder with suicidal ideation
as a result of a deportation order. She was hospitalized briefly and
treatment of acute depression was started in hospital. She was advised to take
two months off work and out-patient follow-up was arranged.
Acute stress disorders and acute
depression can be managed with medications. I would be willing to write the
psychiatrist in charge to request help in determining how long the treatment of
the acute illness is likely to be required. However, I would need a signed
consent.
IATA suggests certain precautions in
the removal of suicidal patients. I can make those available or summarize
them for you if you decide to proceed with deportation.
Please contact me if further
information is required.
[Emphasis mine.]
[13]
That
same day, the Officer convened the principal applicant to an interview on July
18, 2008 which was deferred to August 12, 2008 at the request of Mr.
Mahko who informed her Mrs. Mazakian was to see her doctor, who had been on
holidays, during the week of July 14, 2008 and that he would provide her with
that medical evaluation which he did on July 31, 2008.
[14]
The
medical report provided by Mr. Mahko was written by Psychiatrist Randolph and
is dated July 21, 2008. It states that Mrs. Mazakian had her initial
evaluation on June 3, 2008 with follow up appointments on June 13, July
7 and July 18, 2008.
[15]
This
report indicates Mrs. Mazakian is suffering from Acute Stress Disorder and she
is compliant with her treatment and medications. Dr. Randolph indicates: “Up
until April 2008, the patient was a very well functioning working mother” but
“since receiving the notice that she and her two daughters are being legally
deported to Lebanon, she has
been unable to function.” She is “anxious, suffering from insomnia, feelings of
hopelessness, having nightmares as well as suicidal ideations.” She mentions
that “suicide has been discussed and its effects on her daughters”.
[16]
On
August 8, 2008, the Officer forwarded to Dr. Waddell the principal
applicant’s consent enabling Dr. Waddell to discuss her case with her
psychiatrist. On the fax cover sheet, the Officer said to Dr. Waddell “she is
ready to be removed but before I do so, I would like your opinion if she is
okay to travel or not. Anything you are able to tell me will help me.”
[17]
On
August 12, 2008, the scheduled interview took place between the principal
applicant and the Officer. Mrs. Mazakian brought a new medical report and a
copy of a letter which indicated she had made an H&C application. She told
the Officer her medical condition did not permit her to travel. The Officer
told her she would be seeking an opinion from Dr. Waddell and would be
contacted; she told her “Si notre médecin juge qu’elle est apte à voyager
nous réserverons les billets au prochain rendez-vous.”
[18]
The
record shows that there were communications between Dr. Waddell and the
Director of Outpatient Psychiatry at St. Mary’s Hospital, Dr. Rita Kuyumjian
who on September 9, 2008 wrote to Dr. Waddell:
I do not believe Ms. Mazakian is at all
fit to fly to Lebanon at this time. She remains a HIGH
suicidal risk if she would be required to return to Lebanon. Access to medical services
in Lebanon is very expensive and she
would not have the means to afford it. We believe she needs her medications and
psychiatric care in Canada.
…
However, she is not well enough to leave
our care and too high a suicide risk to be deported from Canada for the time being. I do not have any
contacts in psychiatric clinics in Lebanon and the main issue is she cannot afford
any medical help there.
…
In summary, I do not think Ms. Mazakian
should leave Canada based on her mental and
psychological state.
She remains an extremely high suicide risk. I believe she should be
given the opportunity to remain in Canada
where she and her family function well in society.
[Emphasis mine.]
[19]
Dr.
Kuyumjian also told Dr. Waddell that Mrs. Mazakian had “responded
partially with the use of medications”.
[20]
On
September 9, 2008, Dr. Waddell faxed Dr. Kuyumjian the
following message:
Thank you for your prompt reply to my
fax, sent one week ago. Professional courtesy is greatly appreciated. I
accept your opinion that she is not well enough to fly at the present time.
However, I was pleased to learn that she has shown improvement with intensive
treatment and hope this continues. In my opinion, she should comply with
Canadian law and accept removal when she is well enough. Then, she could
apply for permanent resident status with a medical examination. Her mental
health problems would not preclude admission, if appropriately resolved.
Prolonged delay of a valid removal order, (by threat of suicide), seems
unhealthy. Thank you again for your patience in considering my opinion.
Regards,
[Emphasis mine.]
[21]
On
September 16, 2008, Dr. Waddell sent the Officer the following
message:
Nancy: I received a reply from
Dr. Kuyumjian the same day I wrote. Briefly, she does not consider
Ms. Mazakian well enough to fly at present. However, she has shown some
improvement with treatment, I have written her again. Lisa is back to-morrow. I
will ask her to send you copies of our correspondence. In my opinion, Lebanon
provides excellent medical / psychiatric care. Regards, Walter
[22]
After
receiving this fax from Dr. Waddell, the Officer’s note to file indicates she
made the following observation:
16 septembre 2008 : courriel
de Dr. Waddell m’avisant que bien que le médecin de Mme Mazakian considère
qu’elle n’est pas assez bien pour voyager, il indique que le Liban possède un
excellent traitement médical/psychiatrique. Il indique également qu’il
m’enverra la documentation. [My emphasis.]
[23]
On
September 30, 2008, the Officer convened the principal applicant
to an interview for October 14, 2008, which she attended with Mr. Mahko.
[24]
The
Officer’s note to file indicates that Mr. Mahko verbally asked the removal be
deferred to enable Mrs. Mazakian to continue to have medical follow-ups in Canada and to
enable Patile and Pardy to complete school. This request was rejected by the
Officer. Her note to file with respect to the October 14, 2008 meeting reads:
14 octobre 2008 : Rencontre avec Madame
Mazakian. Je l’avise qu’elle doit maintenant quitter le Canada. Elle me
demande de laisser ses filles finir l’année scolaire. Je l’avise qu’elle devait
quitter à la fin de l’année scolaire 2007-2008 et que je lui avais déjà
accordé un sursis administratif à cet effet. Je refuse donc de prolonger le
renvoi. Madame déclare qu’elle doit avoir un suivi médical. J’informe madame
que selon l’opinion d’Ottawa, le Liban a un excellent système de santé. Elle
répond que cela coûte cher. Je lui indique qu’elle doit quitter avec ses
enfants maintenant. Je demande à madame si elle veut acheter ses billets
d’avions. Elle déclare qu’elle n’en a pas les moyens. J’effectue donc une
réservation pour le 31 octobre 2008. Convocation aéroport remise. Madame n’a
pas de questions.
[Emphasis
mine.]
[25]
On
October 16, 2008, the Officer received from Dr. Waddell’s assistant Lisa
Racine a fax which enclosed Dr. Kuyumjian’s September 9th letter as
well as Dr. Waddell’s fax back to the psychiatrist the same day. The Officer’s
note to file on this point reads:
16 octobre: Fax reçu de Dr. Waddell
indiquant qu’il estime qu’un prolongement au renvoi (par menace de suicide) ne
serait guère bénéfique à madame Mazakian.
[26]
On
October 19, 2008, the principal applicant was seen at the emergency
facilities Sacré Coeur Hospital and
appears to have been admitted.
[27]
On
October 22, 2008, Mr. Mahko wrote to the Officer asking for an
administrative stay on the following grounds:
… premièrement, le syndrome de
stress-traumatique qui s’est manifesté à plusieurs reprises chez la demandeure
principale, depuis l’annonce de son renvoi du Canada; deuxièmement, on ne
saurait faire abstraction de l’intérêt supérieur des enfants dans cette
affaire; troisièmement, et pour tout dire, il n’y aurait, qu’à travers la
demande C.H. soumise par les demandeurs, que l’intérêt supérieur des enfants
pourrait être connu et pleinement apprécié.
[28]
He
also argued the H&C application was not a late one given the failure of the
principal applicant’s representative not to carry out her instructions to file
this application. The applicant’s record indicates that amongst the enclosures
sent to the Officer was a photocopy of the principal applicant’s visit to Sacré Coeur Hospital on October
19, 2008 but Mr. Mahko’s covering letter does not specifically draw this
item to the Officer’s attention.
[29]
On
October 23, 2008, the Officer refused the administrative stay in the
following terms:
J’ai pris connaissance de la demande de
reporter le renvoi en vertu de l’article 25(1) et après avoir évalué la
situation, j’en suis arrivé à la conclusion qu’il s’agit d’un cas où les
circonstances ne justifient pas que l’on reporte le renvoi. Le renvoi aura lieu
le 31 octobre 2008 tel qu’entendu le 14 octobre 2008.
Analysis
[30]
The
Supreme Court of Canada in RJR-MacDonald Inc. v. the Attorney
General of Canada.,[1994] 1 S.C.R. 311 specified and explained
the three part conjunctive test for the grant of interlocutory relief: (1)
serious question to be tried; (2) irreparable hard suffered by the applicant;
and (3) balance of inconvenience.
(1) Serious question to be tried
[31]
In
RJR-MacDonald, above, Justices Sopinka and Cory, on behalf of the
Supreme Court, expressed the view that a motions judge should determine this
question on an “extremely limited review of the case on the merits” … and … “Unless
the case on the merits is frivolous or vexatious” the judge should go on to
deal with irreparable harm and balance of convenience.
[32]
In
my view, the applicants satisfy the first state test of a serious question to
be tried. I am satisfied the record disclosed in these reasons points to the
serious possibility the Officer either fettered her discretion or misconstrued
the evidence before her as to the psychological state of the principal
applicant in terms of her ability to travel and whether she properly construed
Dr. Waddell’s advice. In addition, the Officer did not deal with the
applicant’s allegation that available medical care in Lebanon was costly
and may not be available to the principal applicant on this account. It is also
a fair issue whether the Officer gave sufficient consideration, in the limited
context taught by the jurisprudence, as to the best interest of the daughters.
(2) Irreparable harm
[33]
Irreparable
harm is harm which cannot be compensated in damages. The demonstration of
irreparable harm cannot be speculative. On the balance of probabilities, the
principal applicant has made out a case of irreparable harm. Because of the
weakness of her mental condition, her very life is at stake and, in that
circumstance, so are the best interests of the children.
(3) Balance of convenience
[34]
Having
made out serious questions to be tried and irreparable harm, the balance of
convenience favours the applicants (see Natoo, above, at paragraph 38).
[35]
I
touch on two points raised by counsel for the Ministers. She argued the effect of
my decision was to grant the applicants a permanent injunction from their
removal from Canada. I cannot accept this
submission. The stay is principally grounded on the existing mental health of
the principal applicant in terms of her incapacity to travel on the current
state of the evidence before me and on the availability of medical facilities
for her in Lebanon. The stay is granted
pending the grant of leave and if leave is granted pending decision on judicial
review.
[36]
Counsel
for the respondents’ second point was that the applicants had not discharged
their burden because the record shows here inability to travel was stale. I
also reject that submission. The advice she received, through Lisa Racine’s fax
that day, from Dr. Waddell as late as October 16, 2008 was that Mrs.
Mazakian was unable to travel. The Officer also had subsequent information of
her admission to the emergency department at a hospital on October 19, 2008.
“François Lemieux”
_____________________________
Judge
Ottawa, Ontario
November
7, 2008
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