Date: 20010412
Docket: IMM-1596-01
Neutral citation:2001 FCT 323
BETWEEN:
ISTVAN GYUKER
JULIANNA GYUKER
AGNES GYUKER
AKOS GYUKER
THROUGH HIS LITIGATION GUARDIAN
ISTVAN GYUKER
Applicants
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
[1] The Applicants, Agnes Gyuker, Akos Gyuker, Istvan Gyuker, and Julianna Gyuker, have brought a motion for stay of a removal order.
[2] Mrs. Gyuker came to Canada from Hungary in September 1996 and Mr. Gyuker and their son, Akos, came to Canada in June 1997. Their daughter, Agnes, came to Canada in August 1997. The family applied for Convention refugee status on the basis of being Roma from Hungary. The Refugee Division refused their claim on October 12, 2000, holding the family did not speak the Roma language, nor practice the Roma culture, and were not perceived as Roma in Hungary. Further, the Applicant's received a negative decision on their Post-determination Refugee Claimant in Canada (PDRCC) application because there was no reasonable possibility of risk if the Applicants were returned to Hungary.
[3] The Applicants made a Humanitarian and Compassionate application (H & C application) under s.114(2) of the Immigration Act, R.S.C. 1985, c. I-2, on December 27, 2000, which is still outstanding.
[4] In order for this Court to grant a stay of proceedings, the test to apply is similar to that for an interlocutory injunction[1]. The test requires that the Applicant demonstrate:
(1) that the Applicants have raised a serious issue to be tried in the underlying judicial review application;
(2) that the Applicants would suffer irreparable harm if no order was granted; and
(3) that the balance of convenience considering the total situation of both parties favours the grant of the stay.
[5] In order to establish a serious issue to be tried, the issue must arise out of the underlying application for judicial review. In the case at bar, the decision being challenged is the implementation of the removal order by Mr. Harry Adamidis (the "Enforcement Officer"), acting on behalf of the Minister of Citizenship and Immigration.
[6] There is clearly a discretion for enforcement officers to defer removal orders[2], however, the extent of that discretion has been the subject of much debate by this Court. One particular aspect of this debate is whether an outstanding H & C application should, on its own, be considered by enforcement officers in exercising their discretion to defer a removal order. Mr. Justice Pelletier in Wang[3] canvassed the debate and concluded that a pending H & C application, in itself, is not sufficient for an enforcement officer to exercise his or her discretion to defer a removal order. As Mr. Justice Pelletier states[4]:
Deferral for the mere sake of delay is not in accordance with the imperatives of the Act. One instance of a policy which respects the discretion to defer while limiting its application to cases which are consistent with the policy of the Act, is that deferral should be reserved for those applications or processes where the failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment in circumstances and where deferral might result in the order becoming inoperative. The consequences of removal in those circumstances cannot be made good by re-admitting the person to the country following the successful conclusion of their pending application. Family hardship cases such as this one are unfortunate but they can be remedied by readmission.
[7] The Enforcement Officer concluded that this case was such a family hardship case and made the following statement in his affidavit:
8. I also considered the impact of removal on the children. The family showed me a report from a psychologist, stating that the children's state of well being will deteriorate upon removal. I accepted this statement, however being in a job where I arrange removals on a regular basis, I also understand that removal from Canada is an unpleasant experience for most people and has a similar impact on most children and adults who are being removed.
[8] However a review of the Psychologist Report reveals that the Applicant, Agnes Gyuker, would suffer far more than an unpleasant experience should she be removed to Hungary. Dr. Pilowsky in her assessment stated:
If Agnes returns to Hungary, in my opinion, her psychological state would dramatically deteriorate. She tells me that she would return to the persecution and oppression that people of the Roma status experience in her country, and from an emotional perspective, I do not think she is capable to live in those conditions without falling apart.
[9] The Enforcement Officer accepted that the children's state of well being will deteriorate, but appears to suggest that such an outcome is a routine and unpleasant experience for adults and children alike.
[10] The psychological assessment, on the contrary points to a dramatic deterioration of the Applicant's, Agnes Gyuker, psychological state should she be removed. In my view, the Enforcement Officer misapprehended the report of the Psychologist. Having embarked on the considerations of the Psychologist Report, I find a serious issue is raised when the Enforcement Officer misapprehended the conclusions of the Psychologist.
[11] I therefore find a serious issue to be tried in the underlying judicial review.
[12] I have also determined that the Applicant, Agnes Gyuker would suffer irreparable harm if the stay were not granted.
[13] I accept the uncontradicted assessment of the Psychologist, Dr. J. Pilowsky when she states that the Applicant, Agnes Gyuker would suffer a dramatic deterioration of her psychological state should she be removed. Such a consequence, in my view cannot be made good by re-admitting the person to the country following the successful conclusion of her pending application.
[14] In the circumstances, I am satisfied that the balance of convenience lies in favour of the Applicants.
[15] For the above reasons the motion is allowed.
[16] The Court orders that the motion for a stay of execution of the removal order is granted until disposition of the outstanding Humanitarian and Compassionate application of December 27, 2000.
"Edmond P. Blanchard"
J.F.C.C.
Toronto, Ontario
April 12, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1596–01
STYLE OF CAUSE: ISTVAN GYUKER
JULIANNA GYUKER
AGNES GYUKER
AKOS GYUKER
THROUGH HIS LITIGATION GUARDIAN
ISTVAN GYUKER
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
DATE OF HEARING: MONDAY, APRIL 9, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: BLANCHARD J.
DATED: THURSDAY, APRIL 12, 2001
APPEARANCES BY: Barbara Jackman
For the Applicants
Negar Hashemi
For the Respondent
SOLICITORS OF RECORD: Jackman, Waldman & Associates
Barristers & Solicitors
281 Eglinton Ave. East
Toronto, Ontario
M4P 1L3
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010412
Docket: IMM-1596-01
BETWEEN:
ISTVAN GYUKER
JULIANNA GYUKER
AGNES GYUKER
AKOS GYUKER
THROUGH HIS LITIGATION GUARDIAN
ISTVAN GYUKER
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
[1]Toth v. Canada (Minister of Employment and Immigration) (1988), 6 Imm.L.R. (2d) 123.
[2]Poyanipur v. Canada (Minister of Citizenship and Immigration) (1995), 116 F.T.R. 4.
[3]Wang v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 295 (QL) (T.D.) .
[4]Ibid. at para. 48 and 52.