Ochoa v. Canada (Minister of Citizenship and Immigration), 2002 FCT 552

                                                                                                                                            Date: 20020514

                                                                                                                               Docket: IMM-1038-02

Neutral Citation: 2002 FCT 552

Ottawa, Ontario, the 14^th day of May, 2002

Present: THE HONOURABLE MR. JUSTICE MICHEL BEAUDRY

BETWEEN:

JOSE CESAR OCHOA

Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]         The applicant is seeking a stay of execution of a removal order issued against him that is scheduled for today. He has also applied for judicial review of a decision of the Refugee Division rendered February 12, 2002 refusing his refugee claim.

[2]         I have no intention of repeating the facts, which are contained in the seven-page decision of February 12, 2002. The panel was composed of Ms. Christiane Laberge and Mr. Jean Prévost.

[3]         However, the following facts are important in rendering my decision:

(a)         The applicant is making his third refugee claim;

(b)         According to the decision of February 12, 2002, the applicant relies essentially on the same arguments to support his fear of persecution because he was a member in Argentina of the trade union "[Translation] Union of civilian personnel of the Nation".

[4]         Twice already, the Federal Court Trial Division has dismissed the applications for judicial review of the two previous decisions that were unfavourable for the applicant.

[5]         He is therefore asking now for a stay of execution of his removal, but his destination is Barcelona, Spain and not Argentina.

APPLICABLE STANDARDS

[6]         It is now trite law, since Toth v. M.E.I. (1988), 86 N.R. 302 (F.C.A.), that in order to succeed, the applicant must demonstrate the existence of a serious issue and irreparable harm and that the balance of convenience favours him.

ANALYSIS

Serious issue

[7]         According to the judgment in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396, the threshold for success in demonstrating a serious issue is not very high, and to the degree that it is not a frivolous or vexatious application, this threshold can be crossed fairly easily.

[8]         In the present case, I think, without deciding the matter, that the applicant has a serious question to be determined in seeking judicial review of the decision of February 12, 2002, since he alleges that the Refugee Division did not lawfully exercise its discretion and failed to consider as probative the documentation that was filed.

Irreparable harm

[9]         Having analyzed the decision, I do not think the applicant has proved irreparable harm, given that in the impugned decision it is stated that the applicant was not credible either in his testimony or in the documents he submitted. Furthermore, this is not the first time that the applicant's credibility has been challenged; in the two previous decisions the applicant's lack of credibility was noted in several places.

[10]       Furthermore, given that the applicant is heading to Spain, I subscribe to the respondent's submission that the applicant is heading for a country where there is no danger to his life or safety. It is in Argentina that the applicant claims to have some life-threatening problems.

[11]       He may also, outside the country, continue the judicial review proceeding if he so wishes. See, in this regard, the decision of McKay J. in Kerrutt v. M.E.I. (1992), 53 F.T.R. 96 (F.C.T.D.):

I accept the applicant's submission that the deportation order and this application for a stay of that order, is intimately connected to the relief the applicant seeks in its application for leave to seek judicial review. I do not, however, accept that if the applicant is deported, relief which he seeks, if subsequently granted, would be rendered nugatory. The application for leave may be considered in due course. If leave is granted and ultimately the orders sought are granted for certiorari in relation to the decision concerning insufficient humanitarian and compassionate grounds, and for mandamus directing reconsideration of the matter by the respondent, the applicant's interests in Canada, though he be abroad, are not beyond protection.

Balance of convenience

[12]       I am of the opinion as well that the balance of convenience favours the respondent, as I am not persuaded that the applicant will suffer irreparable harm. And section 48 of the Immigration Act provides:

[13]       In my opinion, this application for a stay of execution must be dismissed.

ORDER

THE COURT ORDERS that:

1.          The application for a stay of execution of the removal order issued against the applicant is dismissed.

                        "Michel Beaudry"

                                  Judge

Certified true translation

Suzanne M. Gauthier, LL.L., Trad. a.

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET NO:                          IMM-1038-02

STYLE:                                       Jose Cesar Ochoa v. M.C.I.

PLACE OF HEARING:            Ottawa, Ontario, by telephone conference call

DATE OF HEARING: May 14, 2002

REASONS FOR ORDER OF BEAUDRY J.

DATED:                                     May 14, 2002

APPEARANCES:

Brigitte Poirier                                                     FOR THE APPLICANT

Steve Bell                                                                           FOR THE RESPONDENT

SOLICITORS OF RECORD:

Brigitte Poirier                                                     FOR THE APPLICANT

Montréal, Quebec

Morris Rosenberg                                                              FOR THE RESPONDENT

Deputy Attorney General of Canada

Montréal, Quebec