Date: 20070206
Docket: IMM-1472-06
Citation: 2007
FC 135
Toronto, Ontario, February 6, 2007
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
PAUSIDES COROMOTO MILLA FLORES
LUBEIRA MARGARITA MILLA RONDON
Applicants
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for a stay of a removal order made against the Applicants until
such time as the Immigration and Refugee Board has examined and determined the
Applicants’ application to re-open the proceedings in respect of their refugee
claims.
[2]
The Record
indicates that the Applicants have endeavoured to pursue every remedy available
to them under the Immigration and Refugee Protection Act (IRPA) without
success to this point. The proceeding that forms the beginning of the issue
here was a claim for international protection made to the Board and heard on
July 7, 2004. Apparently, the Board followed the so called “reverse order”
questioning during that hearing without protest from the Applicants and
probably Applicants’ counsel agreed to such procedure at that time. On July
22, 2004, the Board gave a decision refusing the claim. Leave was sought to
apply for judicial review from that decision and dismissed by this Court on
November 27, 2005.
[3]
On
November 17, 2005, the Applicants received a negative Pre-Removal Risk
Assessment and were to be removed. The Applicants, however, had an outstanding
Humanitarian and Compassionate application under way and sought deferral of
removal on that basis. That Humanitarian and Compassionate application was
refused on February 11, 2006, and a removal interview was scheduled for March
3, 2006. The Applicants attended that interview and were directed to report
for removal on April 3, 2006.
[4]
However,
the Applicants had on February 17, 2006, made an application to the Board for
re-consideration of their original claim having regard to the “reverse order”
questioning and the decision of this Court in Thamotharem v. Canada (MCI),
2006 FC 16, now under appeal to the Federal Court of Appeal. The Board
responded to this application stating in a letter dated March 22, 2006, inter
alia:
It appears that your
application is based on the use of the Chairperson’s Guideline 7 and the
Federal Court’s decision in Thamotharem, Daniel V. M.C.I. (F.C., no.
IMM-7836-04), Blanchard, January 6, 2006.
This Federal Court decision is
being appealed to the Federal Court of Appeal (F.C.A., no. A-38-06). As such,
the Refugee Protection Division will not deal with your application to reopen
until the Court of Appeal rules on the appeal.
The Refugee Protection
Division will examine your application to reopen soon after the Federal Court
of Appeal hands down its decision in Thamotharem.
[5]
Were it
not for this response by the Board providing, in effect, an undertaking to
consider the matter once the Federal Court of Appeal has given its decision, I
would have readily dismissed the present application just as Justice de
Montigny did in a similar case in which such a letter was apparently not at
issue (Figuera v. Canada (MCI), May 16, 2006, IMM-2407-06). I would
have found that this Court had already dealt with the claim for international
protection by dismissing the application for leave to apply for review of the
Board’s decision.
[6]
However, since
the Board has now taken upon itself the undertaking to re-visit the matter by
its letter to the Applicants of March 22, 2006, it must accept the natural
consequences of its actions. It would be unfair for the Removals Officer to
continue to remove the Applicants having regard to that undertaking. The
Applicants now are entitled not to be removed until the Board has made its
determination following the decision of the Federal Court of Appeal in Thamotharem.
It will be so ordered.
[7]
As to certification
of a question, the parties shall have until February 23, 2007, to make
submissions as to such question. There will be no Order as to costs.
ORDER
FOR THE REASONS PROVIDED HEREIN:
THIS COURT ORDERS that:
1.
The
removal of the Applicants from Canada shall be stayed until such
time as the Immigration and Refugee Protection Board has determined the
Applicants request to reopen their claims in accordance with the letter from
the Board to the Applicants’ solicitor dated March 22, 2006;
2.
The
parties may submit a question or questions for certification on or before
February 23, 2007, following which this Court will make a further Order as to
that matter; and
3.
No Order
as to costs.
“Roger T. Hughes”
Email this Content