Date: 20060426
Docket: IMM-2051-06
IMM-2073-06
Citation: 2006 FC 518
Toronto, Ontario, April 26, 2006
PRESENT: The Honourable Mr. Justice Pinard
Docket: IMM-2051-06
BETWEEN:
OMECTA PETERS and CARLOS PETERS
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: IMM-2073-06
AND BETWEEN:
OMECTA PETERS and CARLOS PETERS
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPARDENESS
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicants, a mother and her 22 year old son, are seeking a stay of removal from being deported to St. Vincent and Grenadines. They are challenging two different decisions, a negative Pre-Removal Risk Assessment and the refusal of a CBSA Enforcement Officer to defer removal pending determination of a humanitarian and compassionate application (H & C) for permanent residence and determination of this Court of a judicial review application challenging the negative Pre-Removal Risk Assessment.
[2] Upon hearing Counsel for the parties and upon reviewing the evidence, I find that the applicants have failed to establish the existence of a serious issue with respect to any one of the relevant decisions, which is sufficient to deny the requested stay of removal.
[3] Indeed, the applicants are failed refugee claimants who submitted a completed Humanitarian and Compassionate application on June 22, 2006.
[4] With respect to the Pre-Removal Risk Assessment, it appears clearly that the PRRA Officer considered the relevant evidence, including the additional evidence concerning more contemporary threats made by the ex-spouse to the female applicant, before coming to the same conclusion as the Refugee Protection Division with respect to state protection in St. Vincent:
Any changes in country conditions that have occurred in St. Vincent since the RPD are to their advantage... In the event that he ever tries to act on these threats, the police would likely respond appropriately and effectively.
[5] In the circumstances, I conclude that the applicants have failed to raise a serious issue concerning to the reasonableness of the PRRA Officer's decision.
[6] With respect to the negative deferral of removal decision made by the CBSA Expulsions Officer, it appears clearly that the Officer specifically directed her mind the pending H & C application but determined that the application was not imminently going to be determined. There was no duty on the Officer to defer removal pending determination of the H & C application completed approximately 10 months ago (see, for example, Simoes v. M.C.I. [2000] F.C.J. No. 936, (F.C.T.D.) para. 12., Mohammed Abdul Mollah v. The Solicitor General of Canada (September 28, 2004) IMM-8072-04 (FC) per Dawson J.). Furthermore, there is no duty upon the Officer to defer removal on allegations of risk that have already been assessed by the authorities with jurisdiction to consider risk (see Wang v. M.C.I., [2001] 3 F.C. 682, [2001] F.C.J. No. 295).
[7] The test for granting a stay is well established. The moving party must establish three things, a. That there is a serious question to be tried;
b. That the moving party would suffer irreparable harm if the injunction were not granted; and
c. That the balance of convenience is in favour of the moving party.
(See Toth v. M.E.I. (1988), 86 N.R. 302 (F.C.A.)
[8] The requirements of the tri-partite test are conjunctive. As in the present case the applicants have failed to satisfy the first requirement of establishing a serious question to be tried, their motion must be dismissed.
ORDER
The motion for a stay of removal is dismissed.
"Yvon Pinard"
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-2051-06
IMM-2073-06
STYLE OF CAUSE: Docket: IMM-2051-06
OMECTA PETERS and CARLOS PETERS v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Docket: IMM-2073-06
OMECTA PETERS and CARLOS PETERS v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPARDENESS
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 24, 2006
REASONS FOR ORDER
AND ORDER BY: Pinard, J.
DATED: April 26, 2006
APPEARANCES BY:
Ms. Barbara Jackman FOR THE APPLICANTS
Mr. Jamie Todd FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ms. Barbara Jackman
Toronto, ON FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
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