Date: 20060712
Docket: IMM-3693-06
Citation: 2006 FC 874
Ottawa, Ontario, July 12, 2006
PRESENT: THE CHIEF JUSTICE
BETWEEN:
MARIA EMILIA CHACON FERNANDEZ
JOSE PABLO CASTRO CHACON
Applicants
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
1. UPON the applicants' motion, dated July 5, 2006, for an order staying the execution of their removal to Costa Rica until the final disposition of their application for leave and for judicial review of the refusal, dated July 4, 2006, by the enforcement officer to defer their removal scheduled for July 15, 2006;
2. UPON review of the parties' motion records and upon the hearing in Torontoon July 11, 2006;
3. UPON the applicants having filed an application on April 26, 2006 before the Refugee Protection Division to reopen their refugee claims, heard on June 28, 2004, on the ground of the reverse-order questioning procedure set out in Guideline 7 issued under the authority of the Chairperson of the Immigration and Refugee Board ("Guideline 7 issue"), as interpreted in Thamotharem v. Canada (Minister of Citizenship and Immigration), 2006 FC 16 and Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 461;
4. UPON the applicants' acknowledgment of never having raised the Guideline 7 issue prior to or during their refugee hearing or in the context of the Federal Court proceeding which dismissed their application for judicial review of the negative determination by the Refugee Protection Division (Fernandez v. Canada (Minister of Citizenship and Immigration) 2005 FC 1132);
5. UPON the applicants' motion being analogous to the situation before the Court in Garciav. Canada (Minister of Citizenship and Immigration), 2006 FC 645, in which the Court found that it would be inappropriate to allow the applicant to raise Guideline 7 in his further memorandum of argument;
6. UPON the Court's satisfaction that the applicants' pending application to reopen their refugee claims does not raise a serious issue in the context of the higher threshold applicable where the underlying application concerns a refusal to defer removal (Wang v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 682, 2001 FCT 148; and Jose Manuel Escalante v. The Minister of Public Safety and Emergency Preparedness (July 4, 2006), IMM-3561-06 (Federal Court) at pages 2-3);
7. UPON the Court's satisfaction, in any event, that the applicants' pending application to reopen their refugee claims does not give rise to irreparable harm:
· Benigno Alcala Figuera v. The Minister of Citizenship and Immigration (May 16, 2006), IMM-2407-06 (Federal Court) at page 2;
· Elma Mullai v. The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness(June 5, 2006), IMM-2916-06 (Federal Court);
8. UPON the Court's satisfaction that the applicants have demonstrated neither a serious issue with respect to the refusal by the enforcement officer to defer their removal to Costa Rica nor irreparable harm and that, in the circumstances, the balance of convenience favours the immediate implementation of section 48 of the Immigration and Refugee Protection Act;
IT IS HEREBY ORDERED that:
1. This motion to stay is dismissed.
FEDERAL COURT
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3693-06
STYLE OF CAUSE: MARIA EMILIA CHACON FERNANDEZ ET AL
Applicants
- and -
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, JULY 11, 2006
REASONS FOR ORDER BY: LUTFY C.J.
DATED: WEDNESDAY, JULY 12, 2006
APPEARANCES BY: Ms. Hilary Evans Cameron
For the Applicants
Ms. Anshumala Juyal
For the Respondent
SOLICITORS OF RECORD: VanderVennen Lehrer
Barristers and Solicitors
Toronto, Ontario
For the Applicants
John H. Sims, Q.C.
Deputy Attorney General of Canada
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