Docket: IMM-6743-14
Citation:
2014 FC 1021
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, October 27, 2014
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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GERARDO ALFONSO REVOLORIO MUNOZ
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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ORDER AND REASONS
[1]
The applicant does not present his application
for a stay of removal before this Court with clean hands. His conduct in Canada is a major barrier to the equitable remedy he is seeking.
[4] It is well established law that the
issuing of a stay is an equitable remedy that will only be granted where the
applicant appears before the court with clean hands. See Khalil v. Canada(Secretary of State) [1999] 4 F.C. 661 para 20, Basu v. Canada [1992] 2 F.C. 38, Ksiezopolski
v. M.C.I. & S.G.C. [2004] F.C.J. No. 1715.
[5] In this case the applicant has
anything but clean hands. She has shown a constant and persistent disregard for
Canadian family law, criminal law and immigration law. It would be encouraging
illegality, serve a detrimental purpose and be contrary to public policy if the
court were to grant her the relief sought.
[6] Accordingly, given the circumstances
of this case, the court is not prepared to exercise any equitable jurisdiction
in respect of the applicant.
(Brunton v Canada (Minister of Public Safety
and Emergency Preparedness), 2006 FC 33)
[2]
The applicant came to Canada from Guatemala in 1986.
[3]
He became a permanent resident under the Refugee
Claimants Designated Class Regulations.
[4]
The applicant was convicted of the following
offences:
(a)
Trafficking in cocaine, being guilty of an
indictable offence and liable to imprisonment, under subsection 5(1) and
paragraph 5(3)(a) of the Controlled Drugs and Substances Act;
and
(b)
Possession for the purpose of trafficking in
cocaine, being guilty of an indictable offence and liable to imprisonment,
under subsection 5(2) and paragraph 5(3)(a) of the Controlled
Drugs and Substances Act.
[5]
The applicant is inadmissible on grounds of
serious criminality under paragraph 36(1)(a) of the Immigration and
Refugee Protection Act [IRPA].
[6]
A notice of appeal from the Immigration Appeal
Division [IAD] was filed by the applicant to take action against the removal
order.
[7]
The appeal was found to be abandoned by the IAD.
The finding following a request for a review and a pre-removal risk assessment
[PRRA] also resulted in a rejection.
I.
Issue
[8]
Have the three conjunctive tests for obtaining a
stay of removal been satisfied?
[9]
None of the three conjunctive tests have been
satisfied according to Toth v Canada (Minister of Citizenship and
Immigration), 86 NR 302 (FCA).
II.
No serious issue
[10]
The applicant was granted residence status under
the Refugee Claimants Designated Class Regulations.
[11]
Under these Regulations, Convention refugee or
person in need of protection status was not applicable. Instead landed status
was considered and granted. This Court makes the same finding (see Chand v Canada (Public Safety and Emergency Preparedness), 2008 FC 548, at paras 1, 5, 10, 14, 17, per
Justice Russel W. Zinn; also Asif v Canada (Minister of Employment and
Immigration), [1993] FCJ No 1201; Kanes v Canada (Minister of Employment
and Immigration), [1993] FCJ No 994).
[12]
The PRRA officer was authorized under the Act to
consider the matter before him under sections 96 and 97 of the IRPA;
section 115 of the IRPA does not apply in this context.
[13]
The applicant did not provide the PRRA officer
with specific evidence that he would face personalized risks if he were to
return to his country of origin. The general country conditions do not indicate
a personalized fear on the part of the applicant.
[14]
The onus is on the applicant to present the PRRA
officer with evidence to support his or her application. The applicant did not
submit any information to the PRRA officer establishing his fear of soldiers
with respect to allegations of suspicions of a guerrilla past.
[15]
The PRRA officer had no evidence establishing
that the applicant feared that he would be in danger should he return to his
country (Vasanthakumar v Canada (Citizenship and Immigration), 2012 FC
74, para 7).
[16]
Consequently, there is no serious issue given
the lack of evidence specifically related to the applicant.
III.
No irreparable harm
[17]
As the applicant is neither a Convention refugee
nor a person in need of protection, the principle of non-refoulement
under section 7 of the Canadian Charter of Rights and Freedoms does
not apply.
[18]
Allegations and submissions by an applicant
without any evidence of their basis cannot be considered as the basis for an
objective fear.
[19]
The Court finds that there is no irreparable
harm given that it is speculative.
IV.
Balance of convenience
[20]
Subsection 48(2) of the IRPA provides for the
duty to enforce a removal order as soon as possible.
[21]
The integrity and inherent fairness of the immigration
system lead to removal in this case (Selliah v Canada (Minister of
Citizenship and Immigration), 2004 FCA 261, para 22).
[22]
Because of the applicant being found
inadmissible on the grounds of serious criminality as a result of the
undisputed criminal offences he committed, the balance of convenience does not
lie in the favour of the applicant, but rather in that of the respondent.
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