Date: 20110114
Docket: IMM-171-11
Citation: 2011 FC 35
[ENGLISH
TRANSLATION]
Ottawa, Ontario, January 14, 2011
PRESENT: The Honourable Mr. Justice Pinard
BETWEEN:
|
MANUEL ANTONIO FLORES VASQUEZ
|
|
Applicant
|
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
REASONS FOR
ORDER AND ORDER
[1]
The
applicant wants to obtain a stay of execution for the removal order against him,
which will oblige the applicant to leave for Guatemala on January 17, 2011, until
a decision is made on his underlying application for leave and judicial review
concerning the refusal of his application for a pre-removal risk assessment (“PRRA”).
The motion was heard via teleconference.
[2]
The
applicant indicates he received the PRRA decision on December 14, 2010. Thus,
the applicant was given until December 29, 2010, to submit his application for leave
and judicial review of this decision. However, the applicant did not file his
application until January 10, 2011. Thus, this stay motion is added to an
application for leave filed past the deadline.
[3]
In
his notice of application for leave, the applicant alleges—without providing
further details—that he was sick and that he was unable to make his way to his
lawyer’s residence. No details were provided regarding the nature of the
alleged illness nor the dates during which the applicant was reportedly
affected by it. No medical certificate was produced.
[4]
Furthermore,
as noted by the respondent, the removal officer’s notes indicate that the
applicant contacted his lawyer on December 17, 2010, after he had been informed
of the PRRA decision in question.
[5]
In
these circumstances, the applicant did not discharge the burden of providing a
valid explanation for the entire length of the delay (see Beilin et al. v.
the Minister of Employment and Immigration (1994), 88 F.T.R. 132). As I
noted in Arita et al. v. Minister of Public Safety and Emergency
Preparedness, 2010 FC 1019, my colleague Justice Luc Martineau, in Butt
v. The Solicitor General, 2004 FC 1032, as appears in the following
citations, dismissed the underlying motion due to an absence of a serious question
because the applicants had not provided a valid explanation for the late filing
of their application for leave and judicial review:
[4] As
an extension of time is a condition precedent to the consideration of their
leave application, the applicants must for the purpose of this stay motion,
also establish that the request for an extension of time made in their leave
application raises a serious issue. To do so, the applicants must put before me
evidence from which I could conclude that there are special reasons upon which
this Court could extend the time. In this respect, the case law requires, that
the applicants establish that they had, throughout the period with respect to
which the extension is being sought, the intention to challenge the decision in
issue, but that they were prevented from doing so by reason of factors which
were beyond their control (Semenduev v. Canada (Minister of Citizenship and
Immigration) (2003), 234 F.T.R. 222 at para. 2 (F.C.T.D.), [1997] F.C.J.
No. 70 at para. 2 (F.C.T.D.) (QL)). Manifestly, those conditions are not
satisfied in the present case.
[.
. .]
[9] As
the applicants have failed to put before me evidence upon which I could
conclude that their request for an extension raises a serious issue, it follows
that I cannot consider their application for judicial review as raising a
serious issue. Since the first requirement of the tripartite test (serious
issue, irreparable harm and balance of convenience) set out in Toth v. Canada
(Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.),
(1988), 6 Imm. L.R. (2nd) 123 (F.C.A.) is not met here, the present
motion for stay must fail.
See, to the same effect, Dessertine
et al. v. Minister of Citizenship and Immigration (August 14, 2000),
IMM-3931-00; Paredes v. Minister of Citizenship and Immigration (October
20, 1997), IMM-3889-97; Shellner v. Minister of Citizenship and Immigration
(April 23, 1996), IMM-1378-96 and Semenduev, above.
[6]
What
is more, I believe that the applicant failed to prove the existence of a
serious question related to his underlying application for leave and judicial
review, which, in the case’s current state, clearly appears to be without merit
from my point of view.
[7]
Indeed,
I do not see anything reprehensible about the PRRA officer’s assessment of the
facts, which led to his conclusion that in the absence of specific and precise
evidence in this case, the risk of falling victim to a criminal gang in
Guatemala is a general risk as opposed to a personal risk (see Perez et al.
v. Minister of Citizenship and Immigration, 2009 FC 1029 and Menendez et
al. v. Minister of Citizenship and Immigration, 2010 FC 221).
[8]
Finally,
the PRRA officer did not err by excluding the humanitarian and compassionate
reasons and by not considering the best interests of the applicant’s child when
he assessed Mr. Vasquez’s application. In Varga v. Canada (Minister of Citizenship
and Immigration), [2007] 4 F.C.R. 3, at paragraphs 6 to 13, the Federal
Court of Appeal clearly indicated that the mandate of the officer called upon
to make a decision on a PRRA application consists of considering whether the
person who is making the application meets the conditions set out in sections
96 to 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(the Act). The Court specified that the PRRA application must not be confused
with the application set out at subsection 25(1) of the Act, which allows
individuals to apply for an exemption for humanitarian and compassionate
reasons.
[9]
As
a result, the applicant’s failure to prove the existence of a serious question
related to his underlying application for leave and judicial review is fatal
and must result in the dismissal of his stay motion.
[10]
Thus,
the motion is dismissed.
ORDER
The stay motion for the
removal order to which the applicant is subject—and which is intended to send
him back to Guatemala on January 17, 2011—is dismissed.
“Yvon
Pinard”
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