Cabrera-Lopez v. Canada (Solicitor General), 2004 FC 487

Citation: 2004 FC 487

                                                                                                                      Docket: IMM-1355-04

BETWEEN:

                                          ANDRES PABLO CABRERA-LOPEZ and

                                  CRUZ MERCEDES ECHEVERRIA DE CABRERA

                                                                                                                                           Applicants

                                                                         - and -

                                        THE SOLICITOR GENERAL OF CANADA

                                                                                                                                        Respondent

                                                                                                                      Docket: IMM-2630-04

BETWEEN:

                                          ANDRES PABLO CABRERA-LOPEZ and

                                  CRUZ MERCEDES ECHEVERRIA DE CABRERA

                                                                                                                                           Applicants

                                                                         - and -

                                               THE MINISTER OF CITIZENSHIP

                                                          AND IMMIGRATION

                                                                                                                                        Respondent

Let the attached certified transcript of my Reasons for Order (edited for grammar and readability) delivered orally from the Bench at Vancouver, British Columbia, on the 26^th day of March 2004, be filed to comply with section 51 of the Federal Court Act.

(Sgd.) "Eleanor R. Dawson"

Judge

Vancouver, B.C.

March 30, 2004

FEDERAL COURT OF CANADA

TRIAL DIVISION

VANCOUVER, B.C.

March 26, 2004

IMM-1355-04

IMM-2630-04

BETWEEN:

ANDRES PABLO CABRERA-LOPEZ and

CRUZ MERCEDES ECHEVERRIA DE CABRERA,

APPLICANT;

AND:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

RESPONDENT.

MR. A.P. CABRERA-LOPEZ,                                     Appearing for the Applicant;

MR. P. BELL,                                                               Appearing for the Respondent.

REASONS FOR JUDGMENT

DAWSON, J.:(Orally)

I would like to begin by thanking both of you for your submissions, which I found very helpful. These are my reasons, and unfortunately, sir, these are my reasons for dismissing your motions for a stay of removal. The reasons are as follows.

Mr. Cabrera-Lopez and his wife, Ms. Echeverria de Cabrera, have lived in Canada without durable status for some time. Mr. Cabrera-Lopez first came to Canada in 1988, his wife in 1990. Since then they have exhibited resourcefulness in finding employment and being self-sufficient throughout the time they have been in Canada. They have integrated into the community and their church, and they have two Canadian-born children aged five and a half and six and a half years of age. However, exclusion orders have now been issued against Mr. Cabrera-Lopez and his wife, and they are scheduled for removal after having had a negative decision on an application to remain in Canada in order to apply for permanent residence in Canada on humanitarian and compassionate grounds, and a negative decision on a pre-removal risk assessment.

Applications for judicial review have been filed in respect of each of those negative decisions, and Mr. Cabrera-Lopez and his wife have brought a motion in each application seeking a stay of removal. Mr. Cabrera-Lopez and his wife are self-represented, and Mr. Cabrera-Lopez has argued very well the motions for a stay of removal. He understands that in order to succeed, he must establish the existence of three things: first, a serious legal issue; second, irreparable harm; and third, that the balance of convenience favours making the stay order.

Despite the sympathy which the Court has for Mr. Cabrera-Lopez and his wife, I have not been satisfied on the evidence that a serious issue exists in either application.

I will deal first with respect to the negative pre-removal risk assessment. Mr. Cabrero-Lopez and his wife are evangelical Christians. They say that they will be persecuted if they are forced to return to their native country of Mexico and are at risk because of the continuing persecution of Christians in Mexico. They also say that they will face discrimination. However, the officer who conducted the risk assessment concluded that Mr. Cabrera-Lopez and his wife have an internal flight alternative in Mexico, and that state protection would be available to them.

I have read the decision of the officer carefully, and I can find no serious issue of a reviewable error in her conclusion that aside from the southern part of Mexico and particularly the state of Chiapas, Mr. Cabrera-Lopez and his wife could return to Mexico and not suffer mistreatment that would amount to serious risk. Neither can I find a serious issue of a reviewable error in the officer's decision that Mr. Cabrera-Lopez and his wife failed to demonstrate that it would be unreasonable for them to seek available state protection.

Mr. Cabrera-Lopez says that if the officer believed his story and explanations, she ought to have believed his fear of returning to Mexico because, with respect, he says heis more familiar with Mexico than the officer. I am satisfied, however, that the officer believed his fear was genuine but found that the fear was not objectively borne out by the documentary evidence before the officer. Overall I cannot find the decision to be patently unreasonable or clearly wrong.

Turning to the motion for a stay arising from the negative humanitarian and compassionate decision, I find the officer's decision to be reasonable. The reasons taken as a whole are tenable as support for the decision, and stand up to a somewhat probing examination. The officer was alert, alive and sensitive to the best interests of the Canadian born children, and properly considered all of the positive factors that would have supported the decision. No serious issue arises.

Having found no serious issue, I must dismiss the application for a stay, and I cannot exercise the discretion of the removals officer to extend the time for departure. That is something that is only within the discretion of the removals officer. Similarly I cannot order Citizenship and Immigration Canada to write the letter that Mr. Cabrera-Lopez requested, but I can advise him that in my view, the records that the Minister of Citizenship and Immigration has filed in these two proceedings with respect to his motion, will evidence the length of time that he was in Canada, because that is contained in the report of the officer who conducted the humanitarian and compassionate application, and also reflect the fact that he and his wife were the subject of exclusion and not deportation orders, because the exclusion orders are exhibited to the affidavit of Linda Lu.

I would like to thank again each of you for your submissions. Orders will issue in accord with my reasons. Thank you.

(PROCEEDINGS CONCLUDED AT 4:10 P.M.)

I HEREBY CERTIFY THAT THE FOREGOING is

a true and accurate transcript of the proceedings herein to the

                                    best of my skill and ability.

_____________________________________

G. Latowski,         Court Reporter

                      FEDERAL COURT

        NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:        IMM-1355-04

STYLE OF CAUSE:               ANDRES PABLO CABRERA-LOPEZ et al.

- and -

THE SOLICITOR GENERAL OF CANADA

PLACE OF HEARING:             Vancouver, B.C.

DATE OF HEARING:              March 26, 2004

REASONS FOR ORDER:           DAWSON, J.

DATED:         March 26, 2004

APPEARANCES:

Mr. Andres Pablo Cabrera-Lopez     for Applicants

Mr. Peter Bell                     for Respondent

SOLICITORS OF RECORD:

Mr. Andres Pablo Cabrera-Lopez     for Applicants

(appearing on his own behalf)

Mr. Morris Rosenberg               for Respondent

Deputy Attorney General of Canada