Date: 20071004
Docket: IMM-3964-07
Citation: 2007 FC 1098
Toronto, Ontario, October 4, 2007
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
MIRIAM ELISABETH PEREA DE
FARIAS,
MARCELO FABIAN FARIAS and
MATIAS EZEQUIEL FARIAS
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
UPON motion, dated the 26th day
of September 2007, on behalf of the applicants for an Order staying the
execution of the deportation order of the applicants now scheduled to be
executed on October 11, 2007;
[1]
The
applicants seek an order for a stay of removal to Argentina until their application for leave, and
if granted, for judicial review of the refusal to grant permanent residence in Canada on humanitarian and
compassionate grounds (H&C) is dealt with.
[2]
The
applicants are a family consisting of a husband and wife and two children, a 14
year old son and a 6 year old daughter. The daughter was born in Canada. The applicants say they
fled Argentina because of a vendetta against
them by a family involved in illegal drug trafficking. They came to Canada in 1999 and applied for
refugee protection. That application was rejected by the Immigration and
Refugee Board (IRB) in December 2003. They applied for permanent residence within
Canada based on humanitarian and
compassionate grounds which was denied in August 2007. They have applied for
leave and judicial review of the H&C decision and are now applying for a
stay of the removal order scheduled for October 11, 2007.
The Test for Granting Interlocutory
Relief
[3]
The test
for granting injunctive relief in a stay proceeding was set out by the Federal
Court of Appeal in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.)
and may be described in relation to the applicants as follows:
a. the applicants must
demonstrate that there is a serious issue to be tried;
b. the applicants would suffer
irreparable harm if the requested order was not granted; and
c. the balance of convenience,
considering both parties, favours the applicants.
[4]
The test
is conjunctive, that is, every branch of the test must be satisfied to warrant granting
a stay of their removal.
[5]
The core
of this application is the question of irreparable harm. The applicants have
said they will suffer irreparable harm in that:
a. the applicants will face
personal risk as a result of the continuation of the vendetta;
b. the children will suffer as a
result of a removal to Argentina;
c. the applicants’ removal will
result in expense and loss of their Canadian business and jeopardize their
capacity to support themselves;
d. the applicants’ removal will
adversely affect their ability to continue with their application for judicial
review and impact their sponsorship by Canadian family members.
Personal Risk
[6]
The applicants
expressed concern for their personal safety because of a vendetta against
them. Absent evidence to the contrary, nations are presumed to be capable of
protecting their citizens. Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, S.C.J. No. 74
[7]
The
affidavit of the applicant Miriam Perea De Farias reveals that the principal
person responsible for the vendetta was convicted and incarcerated for four
years during which period the incidents ceased. Her affidavit also discloses
that the two individuals responsible for what she says were deliberate motor
vehicle attacks were charged and convicted. Given these outcomes and the
documentation showing the availability of adequate state protection in
Argentina, I do not find that the applicants are exposed to irreparable harm for
want of state protection in Argentina.
Best Interests of the Children
[8]
The
applicants contend that their children will be harmed as a result of the return
to Argentina and the consequent disruption
of their education. However, the best interests of children usually involves
remaining with their parents. Owusu v. Canada (Minister
of Citizenship and Immigration), [2003]
F.C.J. No. 139, 2003 FCT 94
[9]
The 14 year
old son was six when the family left Argentina
and speaks Spanish. Given his eventual success in adapting to Canadian
education, it would appear that he can be expected to similarly adapt to school
in Argentina. The six year old daughter
is Canadian-born but because of her tender years would likely remain with her
parents. She is just starting school. Both children have the strong support from
their parents and with that support can be expected to adjust to new
circumstances in Argentina.
Economic Considerations
[10]
The
applicants contend their removal will result in expense and the loss of their
business and thus jeopardize their ability to support themselves. In Melo,
Pelletier J. said this of irreparable harm on deportation:
These are all unpleasant and distasteful consequences of deportation. But
if the phrase irreparable harm is to retain any meaning at all, it must refer
to some prejudice beyond that which is inherent in the notion of deportation
itself. To be deported is to lose your job, to be separated from familiar
faces and places. It is accompanied by enforced separation and heartbreak.
There is nothing in Mr. Melo's circumstances which takes it out of the usual
consequences of deportation. Melo v. Canada (Minister of Citizenship and Immigration),
[2000] F.C.J. No. 403 (underlining added)
[11]
The
applicants have demonstrated that they are resourceful and have business skills
and experience. Moreover, they have family and friends in Argentina who have stayed in contact
with them who would likely to provide support.
[12]
The
dislocation on removal they would experience is not different than that which
would ordinarily arise when the refugee immigration process comes to a negative
outcome.
Current and Possible Future Applications
[13]
The
applicants are entitled to continue with their application for leave and
judicial review from outside Canada. Moreover, they are may also
apply to immigrate to Canada with the support of family
members who live in Canada.
[14]
I find
that the applicants have not proven that they will suffer irreparable harm if
they are removed to Argentina. Consequently they have not
met the necessary requirement for securing a court ordered stay of their
removal.
Conclusion
[15]
The
application for a stay of the execution of the deportation order is hereby
dismissed.
ORDER
THIS
COURT ORDERS that the motion for a stay of the execution of the deportation
order is dismissed.
“Leonard S. Mandamin”
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