Ottawa, Ontario, June 26, 2006
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
ALEJANDRO GIGENA PEREZ, MARIA FABIANA SCHMIEDT,
CRISTABEL GIGENA, NATANIEL GIGENA, JEZABEL GIGENA
and EZEQUIEL GIGENA by their Litigation Guardian, Alejandro Gigena Perez
and
THE MINISTER OF PUBLIC SAFETY & EMERGENCY PREPAREDNESS
REASONS FOR ORDER AND ORDER
Introduction
[1] The Gigena family, consisting of father Alejandro, mother Maria and their four children aged 15, 12, 8 and 6, all citizens of Argentinaseek a stay of the execution of a deportation order fixed for July 1, 2006 pending the determination of their outstanding application for permanent residence in Canada on humanitarian and compassionate grounds, (the H & C application).
[2] The underlying judicial review application is the June 7, 2006 decision of Enforcement Officer Tanya Andrews, (the E.O.) who refused the applicants' request dated June 2, 2006 that she defer their removal until their H & C application is decided.
[3] That H & C application was prepared by immigration consultants in Toronto and mailed on August 15, 2005 to Citizenship and Immigration Canada, Vegreville, Alberta, (CIC) together with supporting documentation. An H & C application is specifically contemplated under section 25 of the Immigration and Refugee Protection Act (the Act), which I cite:
| Humanitarian and compassionate considerations
25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister's own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.
Provincial criteria
(2) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province's selection criteria applicable to that foreign national. |
Séjour pour motif d'ordre humanitaire
25. (1) Le ministre doit, sur demande d'un étranger interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s'il estime que des circonstances d'ordre humanitaire relatives à l'étranger - compte tenu de l'intérêt supérieur de l'enfant directement touché - ou l'intérêt public le justifient.
Critères provinciaux
(2) Le statut ne peut toutefois être octroyé à l'étranger visé au paragraphe 9(1) qui ne répond pas aux critères de sélection de la province en cause qui lui sont applicables. |
[4] On January 25, 2006 the immigration consultants received the entire Gigena H & C application back from CIC requesting that an additional application by Maria Fabiana Schmiedt required completion. The completed file was returned to the CIC on or about February 3, 2006.
Background
[5] The applicants entered Canada on July 6, 2002. They had visited Canada before mainly because Maria's sister is a permanent resident in Canada.
[6] Mr. Perez was granted a temporary employment authorization which expired in July, 2003 but his application for its extension was refused on August 13, 2003.
[7] The applicants then made a refugee claim on September 12, 2003 and received a negative decision from the Refugee Protection Division on July 28, 2004 (rendered orally) with written reasons filed on September 17, 2004.
[8] The fears which they expressed and said to be the cause of their flight to Canada was the criminal element in the town they lived in Argentina. These criminal elements were targeting the family because they were after their money. The parents also feared their children would be kidnapped for ransom money.
[9] The Refugee Protection Division essentially found:
a. No nexus with one of the five Convention grounds;
b. No need for protection under 97 of the Act because the situation they described in Argentina was generalized and they could not link their risk to be a personal one;
c. State protection was available in Argentina.
[10] The applicants sought leave to judicially review the Refugee Protection Division's decision but leave was denied by a member of this Court on December 13, 2004.
[11] The applicants were invited to make an application for a pre-risk removal assessment (PRAA) which they did. That application was refused on March 13, 2006 essentially on the grounds the applicants had not provided new supporting evidence nor had they indicated new risk developments in support of their application. Their PRAA application was not accompanied by submissions or documentary evidence. The PRAA Officer stated she had been presented with insufficient evidence to lead her to a conclusion different than that of the RPD. No authorization for leave and judicial review was filed in connection with that application.
Analysis
[12] As noted, the applicants through their legal counsel, in June, 2006 made an application asking the Enforcement Officer "that you consider deferring this removal until the Gigena family's Humanitarian and Compassionate application has been determined." She added "there would appear to be strong reasons for deferring their removal." Legal counsel made extensive submissions in support of the applicants' request for deferral. As noted, the E.O. on June 7, 2006 refused to defer.
[13] The E.O.'s notes to file with respect to the deferral request were extensive (applicant's record, page 140-143).
[14] The E.O. stated that she was asked to consider humanitarian and compassionate issues including:
- The fear the family has in returning to Argentina;
- The welfare of the children;
- The establishment of the family in Canada including the impact of the family's removal on Mr. Gigena's co-workers and contractors...
[15] The context of the underlying judicial review application is important. I make these points:
1. As Ms. Jackman herself recognizes in her June 2nd application to the E.O., the discretion of a Removals Officer is limited. As Justice Nadon, then a member of the trial division pointed out in Simoes v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 936, "the discretion that a Removal Officer may exercise is very limited, and, in any case, is restricted to when a Removal Order may be executed";
2. A Removals Officer must comply with the statutory mandate contained in section 48 of the Act which provides:
If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as is reasonably practicable.
3. According to the Ministerial guidelines, such exemptions are granted if the applicants can show unusual, undeserved and disproportionate hardship;
4. Section 233 of the Immigration and Refugee Protection Regulations provides for an administrative stay where an H & C application has been approved in principle.
5. Normally, a permanent residence visa must be obtained outside of Canada. The applicants' exemption would permit them to make an in-Canada application.
[16] Applying that context to the three-part test for the grant of a judicial stay, I am of the opinion no serious issue has been made out, irreparable harm has not been shown and the balance of convenience favours the Minister.
[17] It is clear from the E.O's notes she realized she had a limited discretion to defer a removal. She said "she would do so if there is an impediment to removal such as a physical inability on the part of the applicant to travel, a moratorium on removals to the country of removal. She would do so if there was a decision pending in the near future on an H & C application." She concluded that none of those elements applied in the case before her.
[18] In particular, she did consider the factors requested by counsel for the applicants namely the status of the pending H & C application, the risk of return to Argentina , the best interests of the children and their establishment in Canada.
[19] Counsel for the applicant advanced several arguments to demonstrate a number of serious issues:
1. Failure of the E.O. to appreciate the H & C application had been re-submitted and that the whole file did not have to be sent back;
2. Failure to realize she was not required to assess the H & C application but simply to examine grounds upon which this H & C application was based;
3. Misapprehension of the nature of the risk in Argentina;
4. The application of the wrong test to guage the existence of an outstanding H & C application which had been made in a timely manner, and
5. Failure to consider the best interests of the children in accordance with Canadian and International conventions.
[20] In my view, there is no evidentiary foundation underlying these arguments. The fact is that the E.O. did evaluate the H & C grounds advanced by the applicants and made no evidentiary error in doing so. The immigration consultant did not submit to CIC the whole file did not have to be sent back. They complied with CIC's request. In addition, there was evidence before the E.O. updating information was needed which was also complied with.
[21] The harm identified by counsel for the applicants does not rise to the level of the kind of harm which needs to be shown in an immigration context. Counsel for the applicants would have me ignore that context by applying a different standard to the notion of irreparable harm. I refuse to do so and to certify a question on that point. The guidelines are clear in terms of H & C considerations of unusual, undeserved and disproportionate hardship must be shown.
[22] In the particular circumstances of this case, the balance of convenience favours the Minister.
ORDER
THIS COURT ORDERS that this stay application is dismissed.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3245-06
STYLE OF CAUSE:
ALEJANDRO GIGENA PEREZ ET AL
v.
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
PLACE OF HEARING: JUDGE'S CHAMBERS - OTTAWA
DATE OF HEARING: JUNE 21, 2006
REASONS FOR ORDER AND ORDER: LEMIEUX J.
APPEARANCES:
| Barbara Jackman Toronto, Ontario |
|
| Linda Chen Toronto, Ontario |
SOLICITORS OF RECORD:
| Barbara Jackman Barrister and Solicitor |
|
| John H. Sims, Q.C. Deputy Attorney General of Canada |