Docket: IMM-2610-19
Toronto, Ontario, August 15, 2019
PRESENT: Madam Justice McDonald
BETWEEN:
OSCAR DANIEL RODRIGUEZ RAMIREZ
DANIEL FELIPE RODRIGUEZ SUAREZ
CLAUDIA LILIANA SUAREZ CHANCI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
UPON MOTION on behalf of the Applicants for an order staying their removal to Colombia, scheduled for August 16, 2019, pending the determination of their request for an extension of time to file an application for leave and for judicial review of the decision of the Refugee Protection Division (RPD) dated February 1, 2019 finding that their claims had been abandoned;
AND UPON considering the Affidavits and written submissions filed on behalf of the parties;
AND UPON hearing oral submissions on behalf of the parties on August 15, 2019, at a special sitting of the Court;
AND UPON noting that the granting of an extension of time for filing the underlying application for leave for judicial review is a condition precedent to the consideration of the Applicants’ Motion for a Stay of their Removal;
AND UPON noting that the applicable test for the granting of an extension of time is set out in Canada (Attorney General) v. Hennelly, [1999] F.C.J. No. 846 (F.C.A.) whereby the applicant must establish the following: (1) a continuing intention to pursue his application; (2) that the application has some merit; (3) that no prejudice to the respondent arises from the delay; and (4) that a reasonable explanation for the delay exists;
AND UPON being satisfied that, in the circumstances, the conditions of the Hennelly test have been met as the Applicants have demonstrated a continuing intention to pursue their application and the application has merit. I further note that there is no prejudice to the respondent regarding delay as these are legacy claimants who waited years to have their claim heard. Finally, it is clear that the fault for the delay rests squarely with their former lawyer who claims that as a result of various medical issues she was prevented from attending a hearing which resulted in the finding that the Applicants refugee claim was abandoned. In the particular circumstances of this case, and considering that the Applicants have not had access to any other process to have their risks assessed prior to being removed to Columbia, I have found that the there is a reasonable explanation for the delay and therefore I will grant the Applicants an extension of time to file their application for leave for judicial review;
AND UPON considering that in order to be successful on a motion for a stay of the removal order, the Applicant must meet the three part test outlined in Toth v. Canada (Minister of Employment and Immigration) (1988) 86 N.R. 302 (F.C.A.), namely: (1) there is a serious issue to be tried; (2) the applicant would suffer irreparable harm if the stay is not granted; and (3) that the balance of convenience favours granting the stay;
AND UPON noting that the Toth test is conjunctive, meaning that an applicant must satisfy all three elements of the test in order to be entitled to relief: Abbvie Corp. v. Janssen Inc., [2014] F.C.J. No. 471 at para. 14;
AND UPON noting that in order to establish the existence of a serious issue in the underlying application for judicial review, the applicant need only show that the application is neither frivolous nor vexatious: Copello v. Canada (Minister of Foreign Affairs), [1998] F.C.J. No. 1301.
AND UPON finding that the Applicants have established that the application is not frivolous or vexatious and that there is a serious issue with respect to the circumstances giving rise to the RPD decision of February 1, 2019 finding that their refugee claims had been abandoned;
AND UPON finding that the Applicants have established that they will suffer irreparable harm between now and the time that their application for judicial review is finally disposed of, in the event that they are removed from Canada without having had their risks on returning to Columbia properly considered;
AND UPON considering that in the circumstances, the balance of convenience favours the Applicants when the serious issue raised and the related irreparable harm are balanced against the duty of the Minister to ensure the obligations of the Immigration and Refugee Protection Act are carried out;
THIS COURT ORDERS that the motion is granted. The Applicants are granted an extension of time to file their application for leave and for judicial review of the decision of the Refugee Protection Division (RPD) dated February 1, 2019 and the removal of the Applicants is stayed until this Court finally disposes of the pending application for leave and for judicial review.
“Ann Marie McDonald”
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