BETWEEN:
PATILE MEGUERDI BERBERIAN
AND PARDY BERBERIAN
and
AND IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
REASONS FOR ORDER
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
[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
[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.
[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
[8] In August 2003, Mr. Berberian returned to
[9] The record also indicates that on June 13, 2008, CIC in
[10] The first of a series of interviews between the Officer and the principal applicant for the purpose of scheduling the applicants from
[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
[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
[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
…
However, she is not well enough to leave our care and too high a suicide risk to be deported from
…
In summary, I do not think Ms. Mazakian should leave
[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:
[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
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
[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
[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
(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
(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
[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
November 7, 2008
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4729-08
STYLE OF CAUSE: TAMAR BEDROS MAZAKIAN et al v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION et al
PLACE OF
TELECONFERENCE
DATE OF
TELECONFERENCE
APPEARANCES:
| Luc R. Desmarais
|
|
| Michèle Joubert
|
SOLICITORS OF RECORD:
| Luc R. Desmarais
Montreal, Quebec
|
|
| John H. Sims, Q.C.
Deputy Attorney General of
|