Date: 20050315
Docket: IMM-1482-05
Citation: 2005 FC 366
BETWEEN:
ROGELIO PONCE MELCHOR
LUIS ALBERTO BUJANDA BASACA
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
O'KEEFE J.
[1] The Applicants are citizens of Mexico who arrived in Canada in July 2001. They have been in a same-sex common law relationship since 1998.
[2] A review of the statements in the affidavit of Rogelio Ponce Melchor sworn on March 7, 2005, shows that:
(1) it is impossible to be an openly gay couple in Mexico;
(2) the Applicants were not accepted by their families;
(3) in spite of the Mexican government stating that gays are a vulnerable group, the government has done little to make Mexico a safe place for gay men and women;
(4) there is a lack of sensitivity on the part of those supposed to uphold the law and protect persons such as the Applicants.
[3] The Applicants have filed a refugee claim and have had both the Pre-Removal Risk Assessment (PRRA) and the Humanitarian and Compassionate (H & C) application denied. On judicial review the PRRA denial was upheld, but the H & C decision was set aside and a new consideration of the application was ordered.
[4] On redetermination, the Applicants' H & C application was again denied. The Applicants have made an application for judicial review of the H & C denial.
Issue: Should an order issue to stay the removal of the Applicants from Canada to Mexico pending the determination of their judicial review application?
[5] In order to obtain a stay of their removal, the Applicants must satisfy me that they have raised a serious issue to be tried; secondly, that they will suffer irreparable harm if the order is not granted; and thirdly, that the balance of convenience, considering the total situation of both parties, favours the granting of the order (see Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.)). The Applicants must satisfy all three branches of the tri-partite test set out in Toth, supra.
Serious Issue
[6] I am satisfied that the Applicants have raised a serious issue to be tried and that issue is whether a proper H & C review was done with respect to the Applicants' situation.
Irreparable Harm
[7] The Applicants will suffer irreparable harm if returned to Mexico. A perusal of the medical report of Dr. Wahan Wanis MD, FRCPC, has satisfied me that irreparable harm would occur.
Balance of Convenience
[8] I am of the opinion that the balance of convenience favours the Applicants. The Applicants are not security risks and are employed. The Respondent will still be able to carry out their removal should their applications ultimately fail.
[9] The Applicants' motion for a stay of their removal is granted and their removal is stayed until leave is denied in their application for judicial review; and if leave is granted, then their removal is stayed until the application for judicial review is finally determined by the courts.
(Sgd.) "John A. O'Keefe"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1482-05
STYLE OF CAUSE: ROGELIO PONCE MELCHOR et al.
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: March 10, 2005
REASONS FOR ORDER: O'KEEFE J.
DATED: March 14, 2005
APPEARANCES:
Ms. Fiona Begg FOR APPLICANTS
Mr. Jonathan Shapiro FOR RESPONDENT
SOLICITORS OF RECORD:
Fiona Begg FOR APPLICANTS
Barrister & Solicitor
Vancouver, BC
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
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