Date: 20040316
Docket: IMM-1879-04
IMM-1880-04
Citation: 2004 FC 402
Vancouver, British Columbia, Tuesday, the 16th day of March, 2004
Present: THE HONOURABLE MR. JUSTICE O'KEEFE
BETWEEN:
GERARDO GARCIA VASQUEZ
NANCY IRENE LIBREROS OCHOA
SERGIO GERARDO GARCIA LIBREROS
SOFIA ALEJANDRA GARCIA LIBREROS
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and THE SOLICITOR GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
[1] This is a motion by the Applicants for an order to stay their removal from Canada which is scheduled for March 17, 2004.
[2] The Applicants are citizens of Mexico and the Applicant Gerardo Garcia Vasquez is also a citizen of Honduras.
[3] The Applicants arrived in Canada in August 2000 and made a Convention refugee claim which was denied and an application for leave for judicial review of the decision was dismissed.
[4] The Applicants filed a Humanitarian and Compassionate (H & C) application and also submitted a PRRA application. The H & C application was denied and the PRRA application was refused.
[5] The Applicant Gerardo Garcia Vasquez ("Vasquez") was employed by a Mexican bank which made loans to a close friend of the bank's chief executive officer. This Applicant was the person who approved the loans. The borrower defaulted on the loans. There was a review of the files to determine whether or not there had been negligence in granting the loans. This Applicant was laid off before the investigation was completed.
[6] The Applicant Vasquez was informed by a former co-worker that the bank was looking for him and that they wanted to arrest him.
[7] A judicial police pick-up truck was seen near his house and in the vicinity of his children's school.
[8] The state judicial police also followed the Applicant's wife.
[9] The Applicant's wife eventually found out that the bank was paying the chief of police to track down the Applicant.
[10] The Applicant Vasquez moved to Honduras in September 1996 and his wife and family moved to Honduras in December 1996.
[11] The Applicant was employed in Honduras and his last position was with a fertilizer plant at the port. When he reported that there were discrepancies in the recording of weight to cargo and more working hours were reported than were actually worked, he was told to put this in writing and the main office told him they would look into it.
[12] The Applicant Vasquez and his wife started receiving anonymous telephone calls in March 2000. When they picked up the phone no one answered.
[13] At the end of June 2000, the Applicant's house was broken into and some appliances were taken. The Applicant claims that a thorough search was made of the house by the intruders.
[14] The incidents were reported to police but no protection was given to the Applicants.
[15] The Applicant's two children are part-way through a school term in Vancouver.
[16] The Applicant Vasquez stated in his affidavit that his wife "began to experience a high level of anxiety, accompanied by depression, nightmares and other symptoms, both psychological and physical". She is being treated for her condition and a medical report was filed with the motion.
[17] The Applicants have filed for leave for judicial review and judicial review of both the H & C and PRRA decisions.
Issue: Should the Applicants' removal be stayed?
Analysis and Decision
[18] It is now accepted that an officer has some discretion and may, in certain circumstances, stay the removal of an applicant (see Wang v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 295 (F.C.T.D.)).
[19] In order to obtain a stay, an applicant must satisfy the requirements set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.) At page 305:
This Court, as well as other appellate courts have adopted the test for an interim injunction enunciated by the House of Lords in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 [Footnote 3 appended to judgment]. As stated by Kerans J.A. in the Black case supra:
The tri-partite test of Cyanamid requires, for the granting of such an order, that the applicant demonstrate, firstly, that he has raised a serious issue to be tried; secondly, that he would suffer irreparable harm if no order was granted; and thirdly that the balance of convenience considering the total situation of both parties favors the order.
[20] The Applicants must meet all three branches of the tri-partite test.
Serious Issue
[21] I am of the opinion that the Applicants have raised a serious issue. That serious issue is whether or not the interests of the children were properly addressed.
Irreparable Harm
[22] The Applicants have established that they would suffer irreparable harm if the order was not granted as the children are currently in the middle of a school term and would most likely lose at least part of their school year if removed at this time.
Balance of Convenience
[23] I am of the view that the balance of convenience favours the Applicants. They do not pose a threat to the public and they have co-operated with the authorities. The Respondent will be able to remove the Applicants should their applications not be successful.
[24] The Applicants' motion for a stay of the removal order is granted.
ORDER
IT IS ORDERED that the removal order issued against the Applicants is stayed until their applications for leave for judicial review are denied and, if leave is granted, the removal orders are stayed until the applications are dealt with by the Court.
(Sgd.) "John A. O'Keefe"
Judge
| I HEREBY CERTIFY that the above document |
| is a true copy of the original filed of record in the Registry of the Federal Court on the _______ day of ___________ A.D. 20 ____
Dated this _______ day of ____________ 20 ____
Kim Carlile, Registry Officer |
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1879-04 & IMM-1880-04
STYLE OF CAUSE: GERARDO GARCIA VASQUEZ et al.
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION and
THE SOLICITOR GENERAL OF CANADA
Respondents
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: March 15, 2004
REASONS FOR ORDER AND ORDER: O'KEEFE J.
DATED: March 16, 2004
APPEARANCES:
Mr. Warren Puddicombe FOR APPLICANTS
Ms. Helen Park FOR RESPONDENTS
SOLICITORS OF RECORD:
Embarkation Law Group FOR APPLICANTS
Vancouver, BC
Morris Rosenberg FOR RESPONDENTS
Deputy Attorney General of Canada