Date: 20010306
Docket: IMM-882-01
Citation: 2001 FCT 153
BETWEEN:
MIGUEL ANGEL HERNANDEZ
DOLORES YAMILETH GIRON CANTARERO
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] This is a motion by the applicants for an order staying the removal order made against them until their application for leave and judicial review of a decision of the tribunal is determined.
[2] The applicant, Hernandez came to Canada with his then common-law wife, the other applicant, in September of 1995 and claimed Convention refugee status. The claim was denied on February 6, 1998. He has since married his common-law spouse and has three Canadian born children.
[3] After his Convention refugee application was denied, his application for judicial review was dismissed. An inland application based on humanitarian and compassionate ("H & C") grounds was denied. As well, a further judicial review with respect to the denial of the H & C application was dismissed.
[4] In the above processes, the applicants received a negative PCDO assessment. This assessment has not been made available to them, despite a request to the removal officer for it.
[5] The applicant Hernandez has been employed in Canada.
[6] In order to grant a stay, I must be satisfied that the applicants have met the tri-partite test outlined in Toth v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 123 (F.C.A.). The applicants must meet all three parts of the tri-partite test. Summarized, these parts are:
1. Have the applicants demonstrated that they have a serious issue to be tried?
2. Have they demonstrated that they would suffer irreparable harm if the stay order was not granted?
3. Have they demonstrated that the balance of convenience, considering the total situation of both parties, favours the order being granted?
Serious Issue
[7] The applicants asked the removal officer to provide them with a copy of their negative PCDO assessment but the assessment was not provided to them. There is no doubt that the removal officer has a discretion as to when to schedule removal. In Murugappah v. Canada (Minister of Citizenship and Immigration) (2000), 7 Imm. L.R. (3d) 134 (F.C.T.D.), a case where the removal officer refused to provide the applicant with the PCDO's opinion, Pelletier J. held that the issue of whether or not the removal officer had to share the PCDO opinion with the applicant constituted a "serious issue", and not a question that was frivolous or vexatious. I find that this question raises a serious issue.
Irreparable Harm
[8] The applicants would suffer irreparable harm if they are returned to Honduras, as they state that they "face serious risks to our life and our well-being if we are removed to Honduras". In addition, the applicants' Canadian born children would suffer irreparable harm if returned to Honduras in that they could not be provided for.
Balance of Convenience
[9] I am of the view that the balance of convenience favours the applicants. Their application can be dealt with and then if they are unsuccessful, they will have to go back to Honduras, a conclusion which has been recognized by the applicants. It will not, in this case, inconvenience the respondent's role of removing from Canada persons who have no legal right to be here.
[10] The removal order made against the applicants is therefore stayed until their application for leave and judicial review is denied or if leave for judicial review is granted, then the removal order is stayed until their application for judicial review is finally dealt with by the Court.
(Sgd.) "John A. O'Keefe"
Judge
March 6, 2001
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-882-01
STYLE OF CAUSE: Miguel Angel Hernandez
v.
MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: February 26, 2001
REASONS FOR ORDER OF O'KEEFE
DATED: March 6, 2001
APPEARANCES:
Mr. Zool Suleman For the Applicant
Ms. Helen Park For the Respondent
SOLICITORS OF RECORD:
Suleman & Company
Barristers & Solicitors
Vancouver, BC For the Applicant
Morris Rosenberg
Deputy Attorney
General of Canada For the Respondent