Docket: IMM-7408-11
IMM-9229-11
Citation: 2011 FC 1471
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, December 14, 2011
PRESENT:
The Honourable Mr. Justice Shore
BETWEEN:
|
|
SARINO MACRI
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
|
|
|
|
Respondents
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
I. Preliminary
[1]
The
granting of an application for a stay of a removal order by this Court is an
exceptional measure that should not be based on considerations of fairness:
[22] This
Court does not have original equitable jurisdiction to decide, generally
speaking, whether it is fair or unfair to remove someone from Canada. This
Court can only intervene in defined circumstances by applying proper legal
principles which, in this case, place upon the applicants the burden of
meeting the tripartite test for granting stays. [Emphasis added.]
(Jordan v MCI, IMM-3316-00)
[2]
In 2008, the applicant claimed refugee status, alleging a fear of
the Italian mafia based on an entirely different account than the one used in
his original efforts in Rome in 2000, when he relied on purely economic reasons
in order to better his situation.
II. Introduction
[3]
The applicant is asking the Court to stay the removal
order until a definitive decision is made on his applications for leave and
judicial review (ALJR) concerning the rejection of his pre‑removal risk
assessment (PRRA) application and the refusal of his application based on
humanitarian and compassionate (H&C) grounds.
III. Preliminary comment
[4]
The applicant brought his proceeding only against the “Minister
of Citizenship and Immigration”. Because the “Minister of Public Safety and
Emergency Preparedness” is the Minister
responsible for the enforcement of removal orders, he should also be named as a
respondent. For this reason, the style of cause in this case must be amended to
add the Minister of Public Safety and Emergency Preparedness, in addition to
the Minister of Citizenship and Immigration.
IV. Facts
[5]
The applicant, Sarino Macri, is a citizen of Italy.
[6]
In 2000, he applied for permanent residence in Canada at the
Canadian embassy in Rome for purely economic reasons, but without success.
[7]
The applicant arrived in Canada on May 13, 2003, as a temporary
resident with authorization to stay until June 15, 2003.
[8]
On May 28, 2003, he submitted an application for an extension of
his temporary resident status.
[9]
On June 19, 2003, the extension application kit was returned to
him because he had failed to include the processing fees.
[10]
On September 8, 2003, the applicant applied for the reinstatement
of his temporary resident status. That application was refused on May 12, 2004.
[11]
On October 18, 2006, the applicant submitted an initial
application for permanent residence based on H&C grounds. In support of his
application, the applicant alleged that he was unable to find work and that his
family had rejected him. The application contained no reference to a fear
of return, to the mafia or to the fact that he had purportedly witnessed an
attempted murder.
[12]
The application was refused on February 25, 2008.
[13]
On March 12, 2008, the applicant claimed refugee status, alleging
a fear of the mafia based on an entirely different account than the one used in
his original efforts in Rome in 2000, which were for purely economic reasons
because he wanted to improve his standard of living.
[14]
On April 6, 2010, the applicant submitted a
second application for permanent residence based on H&C grounds, this time
alleging a fear of return.
[15]
On August 18, 2010, a hearing was held before the Refugee
Protection Division of the Immigration and Refugee Board (RPD).
[16]
On October 14, 2010, the RPD rejected the applicant’s refugee
claim and found that the applicant had an internal flight alternative (IFA) in
Rome. The applicant did not submit an ALJR against that decision.
[17]
On March 12, 2011, the PRRA notice was sent to the applicant.
[18]
On June 28, 2011, the applicant’s PRRA application was rejected.
[19]
On November 25, 2011, the applicant’s second application for
permanent residence based on H&C grounds was refused.
[20]
On October 25, 2011, the applicant submitted an ALJR against the
PRRA decision dated June 28, 2011.
[21]
On December 12, 2011, the applicant submitted an
ALJR against the decision dated November 25, 2011, on the application for
permanent residence based on H&C grounds.
[22]
On December 12, 2011, the applicant asked the Court to stay the removal
order scheduled for December 15, 2011.
[23]
The applicant has been without status since June
15, 2003. His removal is scheduled for December 14, 2011.
V. Issue
[24]
Did the applicant establish that he met each of the three criteria
permitting him to obtain a judicial stay of his removal order?
VI. Analysis
[25]
The
Court agrees with the respondents.
[26]
To grant a stay of the removal order, the Court
must apply the tripartite test. More specifically, the Court must be satisfied
that:
a.
the main proceeding in which the stay motion is
introduced raises a serious issue;
b.
the applicant has established that he would suffer irreparable harm
during the period preceding the decision of the Court on his main proceeding in
the absence of a stay of the removal; and,
c.
the balance of convenience favours him.
(Toth v Canada (Minister of Employment and Immigration)
(1988),
86 NR 302 (FCA))
[27]
An applicant must establish that he or she has met each of the
three components; failure to do so will result in the dismissal of the stay
motion (Iwekaogwo v
Canada (Minister of Citizenship and Immigration), 2006 FC 782).
[28]
Furthermore,
the granting of an application for a stay of a removal order by this Court is
an exceptional measure that should not be based on considerations of fairness:
[22] This
Court does not have original equitable jurisdiction to decide, generally speaking,
whether it is fair or unfair to remove someone from Canada. This Court can
only intervene in defined circumstances by applying proper legal principles which,
in this case, place upon the applicants the burden of meeting the tripartite
test for granting stays. [Emphasis added.]
(Jordan, above)
[29]
Even
on its face, given the modification of the applicant’s account and the way in
which he carried out his efforts over time, the applicant completely failed to meet
the criteria for the test established by the jurisprudence. Consequently, his stay motion is dismissed.
VII. Conclusion
[30]
In light of the foregoing, the applicant did not establish that
he met any of the criteria for obtaining a stay and, consequently, the application
for a stay is dismissed.
JUDGMENT
THE COURT
ORDERS the dismissal of the application for a stay
of the order to remove the applicant.
“Michel
M.J. Shore”
Certified
true translation
Janine
Anderson, Translator
Email this Content