Docket: IMM-2696-16
Citation:
2016 FC 730
Ottawa, Ontario, June 28, 2016
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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ZOLTAN DANYI
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VERONIKA MATYAS
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ALEX DANYI
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Applicants
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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ORDER AND REASONS
(Delivered from the bench on June
27, 2016)
[1]
The Applicants are a Roma family from Hungary.
Zoltan Danyi and Veronika Matyas constitute a couple. Their son, Alex Danyi, is
five years old.
[2]
The Applicants have come to Court with an
application for a stay of removal to be effected this evening. An underlying
application for leave and judicial review has been submitted to the Court in
regard to a Removal Officer deferral denied, also, a humanitarian and
compassionate [H&C] grounds application has been submitted by the
Applicants.
[3]
The Court recognizes the evidence of serious
psychological harm that has been ignored in respect of the female Applicant due
to a possibility of suicide in Hungary, due to trauma in facing return therein.
[4]
Also, a failure to appropriately consider the
best interests of the child as to the potential post-traumatic stress disorder
that has been diagnosed in evidence is evident from the record (referenced
below in the decision of Kanthasamy of the Supreme Court).
[5]
As previously stated by the undersigned in Csonka
v Canada (Citizenship and Immigration), 2012 FC 1056:
[68] Whether the Applicants’ situation
rises to the level of persecution depends on whether their basic human rights
are threatened “in a fundamental way” (Chan v Canada (Minister of Employment
and Immigration), [1995] 3 S.C.R. 593 at para 70; Sadeghi-Pari v Canada
(Minister of Citizenship and Immigration), 2004 FC 282). In determining
this issue, the Board must consider the cumulative effect of the events of
persecution (Munderere v Canada (Minister of Citizenship and Immigration),
2008 FCA 84).
[69] The documentary evidence on the
general country conditions of the Hungarian Roma raises serious human rights
concerns. Educational, employment, housing, economic, and health barriers and
anti-Roma violence described in the evidence could show that the conditions of
certain Roma in Hungary could rise to the level of persecution.
[6]
The Court also specifically refers to Bors v
Canada (Citizenship and Immigration), 2010 FC 1004 and to Canada
(Citizenship and Immigration) v Racz, 2015 FC 218, both of which demonstrate
the level of persecution of the Roma that is significantly often in evidence,
all of which requires a proper analysis as to the country of origin and developments
in respect of certain Roma residing therein.
[7]
Reference is made to the recent Supreme Court of
Canada decision in Kanthasamy v Canada (Citizenship and Immigration),
2015 SCC 61 at paras 35-36 and 40:
[35] The “best interests” principle is
“highly contextual” because of the “multitude of factors that may impinge on
the child’s best interest”: Canadian Foundation for Children, Youth and the
Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, at para. 11; Gordon
v. Goertz, [1996] 2 S.C.R. 27, at para. 20. It must therefore be applied in
a manner responsive to each child’s particular age, capacity, needs and
maturity: see A.C. v. Manitoba (Director of Child and Family Services),
[2009] 2 S.C.R. 181, at para. 89. The child’s level of development will guide
its precise application in the context of a particular case.
[36] Protecting children through the
“best interests of the child” principle is widely understood and accepted in
Canada’s legal system: A.B. v. Bragg Communications Inc., [2012] 2
S.C.R. 567, at para. 17. It means “[d]eciding what . . . appears most likely
in the circumstances to be conducive to the kind of environment in which a
particular child has the best opportunity for receiving the needed care and
attention”: MacGyver v. Richards (1995), 22 O.R. (3d) 481 (C.A.), at p.
489.
…
[40] Where, as here, the legislation
specifically directs that the best interests of a child who is “directly
affected” be considered, those interests are a singularly significant focus and
perspective: A.C., at paras. 80-81. The Minister’s Guidelines set out
relevant considerations for this inquiry:
Generally, factors relating to a
child’s emotional, social, cultural and physical welfare should be taken into
account when raised. Some examples of factors that applicants may raise include
but are not limited to:
• the age of the child;
• the level of dependency between the
child and the [humanitarian and compassionate] applicant or the child and their
sponsor;
• the degree of the child’s
establishment in Canada;
• the child’s links to the country in
relation to which the [humanitarian and compassionate] assessment is being
considered;
• the conditions of that country and
the potential impact on the child;
• medical issues or special needs the
child may have;
• the impact to the child’s
education; and
• matters related to the child’s
gender.
(Inland Processing, s. 5.12)
[8]
For all the above reasons, the conjunctive
tri-partite Toth decision test is fully satisfied in all three criteria
in favour of the Applicants.
[9]
Therefore, a stay of removal is granted pending
final disposition of the outstanding application for leave and judicial review.
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