Date: 20081105
Docket: IMM-1692-08
Citation: 2008
FC 1241
Calgary, Alberta, November 5, 2008
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
AVRAM ADRIAN DRAGOMIR
LENUTA VIOLETA LUNCANU
Applicants
and
THE MINISTER
OF CITIZENSHIP AND IMMGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
present Application concerns the rejection of a plea for humanitarian and compassionate
relief, pursuant to s. 25 of the Immigration and Refugee Protection Act
(IRPA), made by Romani parents of a Canadian born child with respect to
their imminent return to Romania.
[2]
There is
no debate that Romani in Romania, and elsewhere in Europe,
suffer extreme economic, political, and social abuse simply because of their
ethnicity. While a debate exists as to whether this abuse is merely
discrimination and not persecution, thereby establishing a challenge to Romani
who claim protection under s. 96 and s. 97 of the IRPA, nevertheless,
the abuse is a reality which should be understood and deplored by fair minded
people everywhere.
[3]
In the
context of the present Application, the central factor in play before the Visa
Officer in reaching a determination under s. 25 was an understanding of the
potential suffering the Applicants and their child will experience if they are
required to return to Romania. On this point, the decision
under review is misguided because its central focus is on the issue of the s.
96 and s. 97 risk that the Applicants might face upon return to Romania. In this respect the decision
reads much like a Refugee Protection Division or a Pre-Removal Risk decision
involving, for example, the need for the Applicants to prove individualized
risk and the lack of state protection in Romania. While risk is a factor that should be
taken into consideration in reaching a humanitarian and compassionate
determination, as expressed in the guidelines expected to be followed by visa
officers (IP 5), a proper determination requires a multi-faceted analysis of the
nature of the hardship that a person might suffer if he or she is required to
leave Canada and return to his or her country of origin. Most importantly, when
a child is involved in a humanitarian and compassionate application, s. 25 itself
requires a visa officer to give even wider scope to the analysis by making an
earnest effort to determine the best interests of that particular child (see: Kolosovs
v. Canada (Minister of Citizenship and Immigration), [2008] F.C.J. No. 211;
Gill v. Canada (Minister of Citizenship and Immigration), [2008] F.C.J.
No. 780).
[4]
In my
opinion, in the decision under review there is scant evidence that the Visa
Officer was alert, alive, and sensitive to the child’s best interests. The
single passage devoted to this concern reads as follows:
In addressing the best interests
of the applicant’s one year old Canadian child I have also consulted the U.S.
DOS report. Public education is free and compulsory for children up to grade
ten after which fees are charged for books. Roma children, traditionally in
lower income families, are discouraged from attending as a result. Roma
children are also often affected by their parents need to have them engage in
employment at a young age in order to assist the family. Children receive free
medical care up to age 18 years and most drugs are provided for little or no
cost. In my opinion, based on my research in this area, if the applicant’s
child were to accompany her parents to Romania she would not face a risk
that would constitute an undue, undeserved or disproportionate hardship.
[Emphasis added]
(Decision, p. 4)
Two striking decision-making errors are exposed in this
passage; the focus is on risk, and the reality in Romania is not accurately applied. I agree with Counsel
for the Applicants’ argument that, while verifiable evidence of the reality was
placed before the Visa Officer, this evidence was apparently largely ignored in
reaching the decision under review. Counsel for the Applicants places emphasis
on the following evidentiary points:
·
Roma children often experience discrimination and
exclusion when accessing state
education.
·
Some reports detail overt discrimination, such as teachers only
providing help to non-Roma children, through to reports of violence and abuse
directed at Roma children.
·
Several sources noted that lack of education was a serious problem
among Roma in Romania.
·
Roma children are 25 per cent less likely to attend elementary
school and 30 per cent likely [sic] to attend secondary school.
·
Children are among those who are directly affected by human
rights abuses in Romania.
·
Romani children were among the victims of sexual abuse, child
exploitation, human trafficking, and so on. In 2004 police registered about
1,331 cases of abuse and neglect on [sic] children, including 832 cases of
rape, 284 cases of sexual intercourse with a minor, 114 cases of sexual
perversion, and 101 cases of sexual corruption.
·
The lack of economic and social opportunities in Romanian society
has subjected Roma children to various vulnerabilities. In some circumstances,
they are forced to work to earn a living. While the law prohibits forced or
compulsory child labor, such practices remain widespread in Romani communities.
·
Many children were reported to occasionally forego attending
school while working on family farms, especially in rural areas and in Romani
communities.
·
3.9 million of the 5.6 million children in the country were
“economically active”. Over 300 thousand (approximately 7 percent) were “child
laborers”…
·
…70 thousand (approximately 1 percent) were victims of the “worst
forms of child labor”, including hazardous work, sexual exploitation, forced
labor, trafficking, or criminal activity.
·
Child labor, including begging, selling trinkets on the street,
or washing windshields, remained widespread in Romani communities; children
engaged in such activities could be as young as five years old.
(Applicants’
Application Record, pp. 89 – 92)
As a result, given the inadequacy of the best interests of
the child analysis conducted, I find that the decision under review is
manifestly unreasonable.
ORDER
THIS COURT ORDERS that
Accordingly, I set aside the
Visa Officer’s decision, and refer the matter back to a different visa officer
for redetermination.
There is no question to
certify.
“Douglas
R. Campbell”
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