Date: 20090309
Docket: IMM-1015-09
Citation: 2009 FC 247
Ottawa, Ontario, this 9th day of March
2009
Present: The Honourable Orville
Frenette
BETWEEN:
Jorge VALDEZ RUIZ
Nubia JIMENEZ ZAVALA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER
AND ORDER
[1]
This
is a motion seeking a stay of execution of an order of removal of the
applicants to Mexico, scheduled
to be executed on March 11, 2009 at 12:15 p.m.
Background facts
[2]
The
applicants are Mexican nationals who came to Canada in 2007.
Their refugee claim was dismissed on July 11, 2007. Their first Pre-removal
Risk Assessment (“PRRA”) decision was negative as decided on January 19,
2008.
The applicants left Canada and returned to Mexico on
March 12, 2008.
[3]
The
applicants came back to Canada in October 2008 asking for refugee
protection at the airport. A second negative PRRA decision was rendered on February 3, 2009.
[4]
The
applicants have presented a request for leave and judicial review of the last
PRRA decision. They now seek a stay of the removal order until the application for
leave and for judicial review is disposed of.
[5]
The
applicants, who are husband and wife, claim a risk emanating from the male applicant’s
sister’s marital problems with her husband. This risk is the same as the one
alleged in the first PRRA application in 2007. The applicants allege risk
because the male applicant’s sister, a criminal court employee in Mexico, was
threatened by criminals, including relatives, and the police and judicial
system cannot protect them. They also allege they were threatened by criminals
because they refused to rent their house to them in May 2008. They claim they
fear the male applicant’s brother-in-law who is a violent man.
The test for a stay of
removal
[6]
The
Federal Court of Appeal in Toth v. Minister of Employment and Immigration
(1988), 86 N.R. 302, established a test for a stay which had to meet a
tri-partite conjunctive set of conditions, i.e. (1) there is a serious
issue to be tried; (2) the applicant will suffer irreparable harm if the order
is not granted; and (3) the balance of convenience favours granting the stay.
[7]
The
courts have generally decided that there is a low threshold for a finding of a
“serious issue” to be tried in stay instances. It is stated that it is only
necessary to establish that the issue is not frivolous and vexatious. Yet, the
legislator uses the word “serious” which, in ordinary dictionary meaning
signifies “thoughtful, earnest, sober, sedate, responsible, not reckless or
given to trifling … important” (The Canadian Oxford Dictionary (Don
Mills: Oxford University Press, 2001)).
[8]
The
applicants allege that the PRRA officer failed to address the grounds of the
alleged risk, and failed to consider adequately the situation in Mexico in 2008. The
respondents submit that a simple reading of the impugned decision shows the
officer did identify the personal risks involved, i.e. (1) threats,
including relatives, by dangerous criminals, and the allegation that the
Mexican state was unable or unwilling to provide adequate protection. This same
risk was also involved in the first PRRA decision in 2008. (2) Threats by
criminals because of the applicants’ refusal to rent a house. The officer
considered this claim but decided there was insufficient evidence to support
it. (3) He also took into account the fact that the male applicant’s sister is
employed in the Mexican judicial system and has received threats and the allegation
the state cannot protect her.
[9]
The
officer examined these issues and found that the applicants had not sought
protection from the police or the appropriate government authorities in Mexico. He also
found the situation in Mexico has not been proved to have deteriorated
between 2007 and 2008. Therefore the applicants were not at risk as they
claimed.
[10]
The
applicants submitted general documentation about the human rights situation in Mexico,
documentation which the officer states he consulted. He concluded the applicants
had not discharged the required burden of showing the Mexican Government could
not provide adequate protection, even if not necessarily perfect.
[11]
The
applicants claim that the PRRA officer’s finding concerning state protection is
overly simplistic and did not consider new, relevant material evidence before
him.
[12]
In
summary, the application raises the following issues: (1) the matter of state
protection in Mexico; (2) the corruption and infiltration of criminal influence
in government institutions in Mexico; and (3) the failure of the PRRA officer
to assess the personal risks the applicants face if returned to Mexico.
[13]
The
applicants argue that the officer did not adequately assess these issues in
light of the evidence particularly that of the situation in 2008.
[14]
The
respondents contest these arguments by stating that the officer did consider
all of these issues and found the evidence did not support the applicants’
criticism.
[15]
The
respondents submit that the applicants did not satisfy the onus of producing evidence
on a balance of probabilities that supports their claim.
Analysis
[16]
An
analysis of these issues clearly shows that the officer did consider and assess
all of them, including personal and general risks feared by the applicants
including the so-called new evidence. The officer did analyse in particular the
male applicant’s situation, and therefore believed the decision fell within the
standard for decisions set by the Supreme Court of Canada in Dunsmuir v. New
Brunswick,
[2008] 1 S.C.R. 190. Therefore the serious issue condition has not been met in
this case.
[17]
The
applicants allege the personal risk they face in Mexico constitutes
irreparable harm. There is no doubt that risks exist in Mexico for all the citizens
but this is not sufficient; there must be personal irreparable harm, which must
be proven and not be speculative. This requirement has not been satisfied.
[18]
There
is no doubt in my opinion, that state protection in Mexico is far from perfect
but the applicants have not sought it. Many recent decisions of our Courts concerning
Mexico have dismissed applications on this ground (see, for example, Rios et
al. v. Minister of Citizenship and Immigration, 2008 FC 1383; Gutierrez
v. Minister of Citizenship and Immigration, 2008 FC 971; Malagon v. Minister
of Citizenship and Immigration, 2008 FC 1068; Ayala v. Minister of
Citizenship and Immigration, 2008 FC 1258; Araujo v. Minister of
Citizenship and Immigration, 2009 FC 39; Roberto v. Minister of
Citizenship and Immigration, 2009 FC 180).
[19]
The
applicants claim their interest to have their case heard in Canada takes
precedence over the Minister’s interest in enforcing the removal order. Yet,
subsection 48(2) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27, is clear: “If a removal order is enforceable, the foreign national
against whom it was made must leave Canada immediately and it must be enforced
as soon as is reasonably practicable.”
[20]
Stays
against removal orders are an exceptional recourse which must satisfy all of
the above conditions. Furthermore, the latest pronouncement of the Supreme
Court of Canada states that, when applying the standard of review of
reasonableness, courts must give deference to factual based decisions of
administrative tribunals (Canada (Citizenship and Immigration) v. Sukhvir
Singh Khosa, 2009 SCC 12, paragraphs 59 to 64).
[21]
Also
in the present case, the applicants, who had two negative PRRA decisions, and returned
to Canada notwithstanding the first decision, can pursue their judicial review
outside of Canada.
[22]
The
question of mootness has no relevance in this case.
[23]
Considering
the evidence and the submissions, I must conclude that they have not satisfied
the required conditions for a stay.
[24]
Therefore,
this Court must dismiss this application.
ORDER
THIS
COURT ORDERS that the motion seeking a stay of execution of an order of
removal of the applicants to Mexico, scheduled to be executed on March 11, 2009, is dismissed.
“Orville
Frenette”
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