Federal Court Decisions

Date: 20020405

Docket: IMM-1302-02

Neutral citation: 2002 FCT 379

Ottawa, Ontario, this 5th day of April, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                          OMAR ALBERTO GOMEZ

HERMINA ARIAS

LUZ STELLA ARIA

MARIANA GOMEZ

MARIA NATALIA ARIAS

Applicants

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is a motion by the applicants for an order staying their deportation which is scheduled for April 8, 2002, pending a final determination of the application for leave or the application for leave and for judicial review of the Post Determination Refugee Claimants in Canada ("PDRCC") decision.

[2]                 The applicant, Omar Alberto Gomez ("Mr. Gomez"), along with his wife, Luz Stella Aria, his mother-in-law, Hermina Arias, his daughter, Mariana Gomez and stepdaughter, Maria Natalia Arias, are all citizens of Colombia, who arrived in Canada on June 20, 2000 and made refugee claims which were denied in November, 2001.

[3]                 The applicants made a PDRCC application which was refused on March 13, 2002.

[4]                 The applicants have filed an application for leave and for judicial review of the PDRCC decision.

[5]                 The applicants are scheduled for removal to Columbia on April 8, 2002.

[6]                 Mr. Gomez owned a bus in Columbia and claims that extortionists were requiring him to pay money to them. If he did not pay the money requested, the extortionists threatened him with the kidnapping of his daughters or with death.

[7]                 Both Mr. Gomez and his wife have worked full time since receiving their work permits.

[8]                 Both children are presently attending school.

[9]                 The applicants claim to be fearful of returning to Columbia because they fear reprisals from the extortionists because payments have not been made.

[10]            The extortionists warned Mr. Gomez not to go to the police, because they would find out and Mr. Gomez would suffer the consequences.

Issue

[11]            Should an order issue staying the removal of the applicants?

Analysis and Decision

[12]            It is now accepted that a removal officer has some discretion and may, in certain situations, stay the removal of the applicants (see Wang v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 295 (F.C.T.D.)).

[13]            In order to obtain a stay, the applicants 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.

The applicants must meet all three branches of the tri-partite test.

[14]            Serious Issue

I have reviewed the materials filed in this motion and I am of the view that the material raises serious issues. One such serious issue is whether or not the post-claim determination officer's ("PCDO") decision was reasonable in light of all the evidence including the filed documentary evidence. Another serious issue is whether or not the PCDO made a credibility finding and if the officer did, was that finding made in a proper manner.

[15]            Irreparable Harm

The evidence of the applicants is to the effect that they fear severe reprisals by the extortionists in Columbia because the extortion payments were not made. Also, the record shows that the applicants fear being kidnapped or killed by the paramilitary group. I find that based on these facts, the applicants would suffer irreparable harm if returned to Columbia.

[16]            Balance of Convenience

The Minister has a duty to enforce the provisions of the Immigration Act, R.S.C. 1985, c. I-2, but that duty can be carried out as soon as the judicial review proceedings are completed if the applicants are unsuccessful. I also note that the applicants pose no threat to the public.

[17]            The removal (deportation) order issued against the applicants is hereby stayed, pending a final determination of the application for leave or the application for leave and for judicial review of the PDRCC decision.

ORDER

[18]            IT IS ORDERED that the removal (deportation) order issued against the applicants is hereby stayed, pending a final determination of the application for leave or the application for leave and for judicial review of the PDRCC decision.

                                                         "John A. O'Keefe"             

                                                                            J.F.C.C.                      

Ottawa, Ontario

April 5, 2002