Date:
20121026
Docket:
IMM-10792-12
Citation:
2012 FC 1248
Ottawa, Ontario,
October 26, 2012
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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BLANCA ELODIA PENA GONZALEZ
RODRIGO HERNANDEZ PENA
DAMIAN HERNANDEZ PENA
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Applicants
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and
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THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR
ORDER AND ORDER
[1]
The
respect for the administration of justice and the maintenance of the integrity
of the Canadian immigration system must not be placed in jeopardy by motions
for stays of removal in the “11th hour” of a strategic nature prior
to a weekend. When a judgment or previous judgments demonstrate a serious lack
of credibility by applicants, who have been in Canada for a significant number
of years, having had the opportunity to plead their cases before numerous
instances without success, as pleaded by the Respondent, that surely must be
taken into account by this Court.
[2]
The
application in this 11th hour, “last minute case”, is for a request
for a stay of removal for removal that is scheduled for this weekend, Sunday,
October 28, 2012 at 8:00 p.m.
[3]
In
this case, the Applicant emphasizes that a spousal sponsorship application is
central to the application for a stay of removal; yet, the principal Applicant
did not submit an In-Canada Spousal Sponsorship Application until only after
being called to a pre-removal interview to discuss removal from Canada, that
after having spent four years in attempting to obtain residence status.
[4]
The
Applicants arrived in Canada in 2007. In May of 2011, the Refugee Protection
Division of the Immigration Refugee Board determined that the Applicants lacked
credibility.
[5]
On
September 29, 2011, subsequent to the negative decision by the Refugee
Protection Division, this Court refused to hear the case by denying it leave to
be heard.
[6]
On
December 10, 2011, a Pre-Removal Risk Assessment notice was given to the
Applicants. During that specific time period, the principal Applicant filed a
spousal application sponsorship.
[7]
On
March 20, 2012, subsequent to a significant analysis by a Pre-Removal Risk
Assessment officer, a determination was made that the Applicants were not at
risk if returned to their home country.
[8]
In
addition, the actual application for sponsorship is incomplete and a September
11, 2011 letter requesting further information has been left unresponded to
this day.
[9]
On
October 2, 2012, the Applicants were notified that they had to leave Canada by October 28, 2012.
[10]
On
October 10, 2012, the Applicants requested that the immigration authorities
defer the removal order.
[11]
On
the same day, subsequent to the above request, an Enforcement Officer refused
the request for deferral. The Officer specified that the permanent residence
application was filed only in December of 2011, that is after the November 24,
2011 date, when the Applicant became aware of the Pre-Removal Risk Assessment
consideration in place.
[12]
Then,
on October 23, 2012, on the heels of a request for judicial review, filed on
October 22, 2012, the Applicants submitted a motion for a stay of removal
subsequent to the determination of the Removal Officer’s decision of October
10, 2012.
[13]
It
is important to specify that the Applicants have been “removal ready” since
November 24, 2011, the date on which they were called to an interview with the
removals officer; yet, the spousal application was only filed on December 8,
2011.
[14]
It
is also important to recall that the spousal application is not complete as
personal documents are still missing, such as information in respect of the
father of the minor teenaged Applicants, the sons of the principal female
Applicant.
[15]
As
specified in the decision of Banwait v Canada (Minister of Citizenship and
Immigration), [1998] FCJ No 522 FCTD, at para 16:
16 I see no transgressions in the conduct of the
Minister; no expectations granted the applicant; if he chose to marry while
still not having his situation favourably determined by Canadian authorities,
it is at his peril, not that of the Minister who has a duty to uphold the laws
of Canada.
[16]
As
heard by this Court, the only arguments of note of the principal Applicant were
focussed on the desire for the family unit to remain together as the recent
husband of the principal Applicant is a Canadian citizen.
[17]
Also,
the husband (not the father of the principal Applicant’s children) is
unemployed and relies on the earnings of the work of the principal Applicant;
otherwise, as was pleaded, he would have to go on welfare as stated by the
counsel of the Applicant.
[18]
In
view of all of the above, and, as the sponsorship application can be reinstated
from Mexico, the tripartite conjunctive Toth decision test (Toth v. Canada (Minister of
Employment and Immigration) (FCA),
[1988] 86 N.R. 302), in respect of 1) a serious question; 2)
irreparable harm; and 3) a balance of convenience, has not been met. All three
criteria have not been satisfied; thus, an injunction, an extraordinary legal
measure, for extraordinary circumstances, when called for, is not possible in
this case in view of the pleadings as a whole.
[19]
Thus,
as a result of all of the above, the Court comes to the conclusion, subsequent
to analysis of all the documents on file and all the written and oral pleadings
of both parties, that the application for a stay of removal is dismissed.
ORDER
THIS
COURT ORDERS that the application for a stay of removal
is dismissed.
“Michel M.J. Shore”
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