Date:
20091102
Docket:
IMM-5243-09
Citation:
2009 FC 1124
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, November 2, 2009
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
ANA IVETTE GONZALEZ Y LOYO
MARIO ALEJANDRO HERNANDEZ
GONZALEZ
ANA IVETTE HERNANDEZ GONZALEZ
JOSE
MIGUEL HERNANDEZ GONZALEZ
Applicants
and
THE MINISTER OF PUBLIC
SAFETY AND
EMERGENCY
PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1]
This
is a motion to stay the execution of a removal order to Mexico, scheduled for
November 8, 2009.
[2]
The
motion is joined to an application for leave and judicial review of a decision
of an enforcement officer dated October 23, 2009, refusing the request to defer
the removal.
[3]
In
order to succeed, the case law required the applicants to demonstrate that
there was a serious question to be tried on the application for judicial
review, that they would face a risk of irreparable harm and that the balance of
convenience was in their favour (Toth v. Canada (Minister of
Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.)).
[4]
Of
all of the arguments submitted by the applicants, the only one I accept is that
with regard to redress before the Ontario Criminal Injuries Compensation Board
(“the Board”). The female applicant is the principal applicant.
[5]
The
record shows that an oral hearing will be scheduled but that the date, time and
place have yet to be determined.
[6]
The
enforcement officer was asked to stay the removal by the female applicant,
given that she [translation] ‘…
is awaiting a decision from the CAVAC for the abuse she suffered at the hands
of her new spouse in Canada, and leaving the country would put and end to her
claim for compensation”.
[7]
In
his decision, the enforcement officer wrote: “However, no document is submitted
with regards to the status of that request”.
[8]
According
to the respondent’s counsel, the enforcement officer’s file contained letters
from the Board dated June 26, 2009 stating that the file of the application for
compensation was complete, that a hearing was recommended and that she would
receive a notice of hearing.
[9]
Therefore,
the officer, when he made his decision, had not taken this information into
consideration.
[10]
This
raises a serious issue.
[11]
As
to whether the female applicant’s presence was required at the oral hearing,
the Court consulted certain Ontario statutes and is not in a position to make a
determination in this regard.
[12]
If
the female applicant were to leave the country, would the claim before the
Board be cancelled? The Court is not in a position to answer this as Ontario
legislation provides for the possibility of written or electronic hearings. The
record does not show that an oral hearing is required.
[13]
Irreparable
harm must be real. This case does not show such harm.
[14]
With
regard to the balance of convenience, the Court notes the wording of section 48
of the Immigration and Refugee Protection Act and the factual background
regarding the female applicant and her three children. The balance of
convenience favours the respondent.
[15]
Accordingly:
The application for a stay is dismissed.
ORDER
For
the reasons read at the hearing, the Court dismisses the application for a stay.
“Simon Noël”
Certified
true translation
Sebastian
Desbarats, Translator
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