Ottawa, Ontario, March 24, 2007
PRESENT: The Honourable Mr. Justice Harrington
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondents
REASONS FOR ORDER
(Delivered orally from the Bench)
[1] Mr. Vazquez Oceguera came to Canada from Mexico. He asked to be considered a refugee. His application was dismissed.
[2] In May of last year, he married a Canadian. This was a few months after the then Minister of Citizenship and Immigration, the Honourable Joe Volpe, had announced that applications for permanent residence with a spousal sponsorship could be processed from within Canada. It appears that Mr. Vazquez Oceguera never read the fine print.
[3] A few months after his marriage, he received a pre-removal risk assessment form. He filled it in and returned it. In the box which called upon him to declare his civil status he stated that he was married. A month later he went to the bank and paid the required fee for the spousal application. However to this day no such application has been filed.
[4] In his affidavit he says that a lawyer, whom he chooses not to name, told him not to worry.
[5] A negative decision was rendered on his PRRA application. He now seeks leave and judicial review of that decision.
[6] There is absolutely nothing untoward in the PRRA decision itself. A careful analysis was made as to whether there were any changes of circumstances in Mexico since his refugee claim was rejected. The officer concluded that he would not be at risk if he returned to Mexico.
[7] Mr. Vazquez Oceguera has retained counsel who has raised as a new issue military conscription in Mexico. Mr. Vazquez Oceguera is concerned that since he did not serve in the military, as required by law, he may be considered a deserter and penalized. This point was neither raised in his refugee claim nor in the PRRA, and I cannot and will not take it into account.
[8] The other point alleged is that the officer should have noted the change in Mr. Vazquez Oceguera’s civil status and should have been on inquiry. She should have interviewed him; she should have inquired as to whether his wife had filed a sponsorship application; she should have explained to him all the details of the spouse or common-law partner in Canada class of sponsorship.
[9] This is not the purpose of a pre-removal risk assessment. The purpose of the PRRA is to consider whether circumstances have changed so that Mr. Vazquez Oceguera would run a personal risk of persecution in Mexico. It is not an application under section 25 of the Immigration and Refugee Protection Act which permits the Minister to take into consideration humane and compassionate issues.
[10] Consequently, and taking into consideration the tri-partite test set out in such cases as Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (FCA) and RJR - MacDonald v. Canada (Attorney General), [1994] 1 S.C.R. 311. I am of the view that there is no serious issue in the underlying application. Nor am I satisfied that there is irreparable harm. Furthermore, the balance of convenience favours the Minister. Even if an application for spousal sponsorship had been filed, the Minister had the right, indeed the duty, to inquire as to the genuineness of the marriage and to consider other prescribed factors such as the state of Mr. Vazquez Oceguera’s health and whether he had a criminal background.
[11] Mr. Vazquez Oceguera’s removal from Canada does not prevent his wife from sponsoring him.
“Sean Harrington”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1110-07
STYLE OF CAUSE: JESUS VAZQUEZ OCEGUERA v.
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS and THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: March 24, 2007
REASONS FOR ORDER: HARRINGTON J.
APPEARANCES:
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Zarko Tatomirovic-Manula
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Agnieszka Zagorska
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SOLICITORS OF RECORD:
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Zarko Tatomirovic-Manula Barrister & Solicitor Ottawa, Ontario
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John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Ontario |