Date: 20090506
Docket: IMM-1190-09
Citation: 2009 FC 469
BETWEEN:
GHEORCHE CALIN LUPSA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
Lemieux J.
[1]
After having heard,
on May 1, 2009, the parties on Mr. Lupsa’s application for a stay of removal to
Romania, which had been scheduled for the following day at 4 p.m., I granted an
interim stay and ordered the serving and filing of further written
representations on the part of the applicant no later than Friday, May 8, 2009,
and on the part of the respondent no later than Friday, May 15, 2009.
[2]
The following are my
reasons for issuing the interim order.
[3]
The stay sought by
Mr. Lupsa is accompanied by an application for leave and judicial review of a
decision by the Minister’s Delegate, Jillan Sadek (the Minister’s Delegate or
the panel), dated January 12, 2009, dismissing his application for humanitarian
and compassionate relief under subsection 25(1) of the Immigration and
Refugee Protection Act (IRPA) seeking an exemption from the finding of
inadmissibility on grounds of serious criminality and medical inadmissibilty.
[4]
The Minister’s
Delegate determined that:
[Translation]
The
most compelling humanitarian issue in this case is the fate of Mr. Lupsa’s two
sons. I am well aware that my decision will profoundly affect their young lives.
However, this is hardly Mr. Lupsa’s first run-in with the law; in five years he
has managed to acquire an extensive criminal record. His actions show a
propensity for criminal behaviour as well as possible links to organized crime
and there is very little evidence of rehabilitation. Mr. Lupsa continued to
commit criminal offences knowing that his actions would jeopardize his status
in Canada. Accordingly, I am satisfied that any
harm resulting from his removal from Canada is not unfair, disproportionate or
unusual.
As
a result, I do not believe that humanitarian considerations in this case
outweigh the finding of inadmissibility on grounds of serious criminality. Any
positive factors simply do not overcome the seriousness of the facts to such an
extent that I would grant an exemption.
[5]
Relying on the
judgment of my colleague Justice Gibson, in Vu v. The Minister of Citizenship and Immigration, 2007 FC 1124, Mr.
Lupsa’s counsel submitted at the hearing before me that the decision by the
Minister’s Delegate was vitiated by errors.
[6]
The substance of
counsel’s arguments can be summarized as follows:
·
The panel erred in
assessing the evidence with regards to Mr. Lupsa’s criminal record. As a result,
his criminality is not as serious as the Minister’s Delegate had characterized
it to be;
·
Its assessment of the
risk of re-offending is overstated in today’s context;
·
The panel did not
consider the interests of Mr. and Mrs. Lupsa’s children, nor the fact that the
couple have been married since 1999. This is demonstrated by the scant seven
lines devoted to the subject in her reasons. Moreover, while the panel did not
rule out the whole family’s removal to Romania, it failed to analyze the situation in that
country regarding the two Canadian-born children;
·
The applicant’s
establishment in Canada was minimized and the presence of his relatives in Romania was improperly assessed; and,
·
The panel failed to
consider his wife’s sponsorship as required by the immigration guidelines.
[7]
During Mr. Lupsa’s
counsel’s argument, the Minister’s counsel objected several times on the
grounds that what her colleague was arguing was nowhere to be found in her
written representations in support of the application to stay, and that they
exceeded the scope of both her written representations in support of the
application for leave, which had already been filed, as well as those of the
Minister.
[8]
In reply, Ms. Milos
argued two points: (1) that the facts in support of her representations
appeared in Mr. Lupsa’s affidavit; and, (2) in some instances, she had perhaps
not sufficiently developed her arguments.
[9]
I issued my interim
order for a stay of removal for Mr. Lupsa because I believe that the argument
to which the Minister’s counsel objected was crucial to Mr. Lupsa and that it was
in the interests of justice to grant an adjournment so as to allow his counsel
to fine-tune her arguments. I thought she had adequately raised, in her written
representations (albeit in the wrong place; i.e.: Mr. Lupsa’s affidavit)
the issues which she wanted to develop in her oral argument.
[10]
I remain concerned
about the availability in Romania of the anti-rejection drugs Mr. Lupsa
needs since his 2004 kidney transplant. The comments by Doctor Baran and Doctor
Labelle do not inspire confidence. The adjournment should prompt the parties to
further pursue the matter.
‘‘François
Lemieux’’
______________________________
Judge
Ottawa, Ontario
May 6, 2009
Certified
true translation
Sebastian
Desbarats, Translator
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