Toronto, Ontario, February 8, 2006
PRESENT: THE HONOURABLE MR. JUSTICE VON FINCKENSTEIN
BETWEEN:
NOEMI SANCHEZ CRUZ
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The Applicant, Noemi Sanchez Cruz, seeks a stay of her deportation scheduled for February 10, 2006. The Applicant, a Mexican citizen, fears further abuse and persecution from her former boyfriend who is a member of the Mexican police force.
[2] The Applicant voluntarily withdrew her application for refugee status on June 15, 2004 and her application for Pre-Removal Risk Assessment ("PRRA") was denied on November 18, 2005. She is currently seeking leave to apply for judicial review of the PRRA decision.
[3] In order to be succeed, the Applicant must satisfy the tripartite and conjunctive test set out in Toth v. Canada(Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 123. Thus, the stay will only be granted if the Applicant satisfies the three requirements of (1) a serious issue to be tried (2) she would suffer irreparable harm if no order is granted and (3) the balance of convenience favours granting the order.
[4] Regarding irreparable harm, the Applicant alleges that her former boyfriend would find and kill her if she is deported. She claims that as he is a member of the police in the city of Orizaba, he can find her anywhere in Mexico. This is based upon an alleged event where her former boyfriend found her after she had moved to Mexico City.
[5] I find the evidence of irreparable harm to be insufficient. The mere fact that her former boyfriend is a police officer and was able to locate her in one part of Mexico does not mean the Applicant is likely to face persecution anywhere in Mexico. There was no evidence that the Applicant has reason to fear for her safety in other parts of Mexico.
[6] I support the reasoning of Justice Weston in Xu v. Canada(Minister of Citizenship and Immigration), [1997] F.C.J. No. 1634 at paragraph 4:
While serious jeopardy to life or safety of the person may be too high a standard in some cases, the harm that is claimed must, at the very least, be non-speculative and credible. In this sense, the existence of irreparable harm is fact specific.
[7] Accordingly, irreparable harm has not been established. It is not necessary to look at the other two parts of the tripartite test as the Applicant has not satisfied the conjunctive aspect of the test.
[8] Thus, the application for a stay is denied.
ORDER
THIS COURT ORDERS that this application for a stay is denied.
"K. von Finckenstein"
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-487-06
STYLE OF CAUSE: NOEMI SANCHEZ CRUZ
APPLICANT
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
RESPONDENT
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 6, 2006
AND ORDER: von FINCKENSTEIN J.
APPEARANCES:
Douglas Lehrer FOR THE APPLICANT
Kristina Dragaitis FOR THE RESPONDENT
SOLICITORS OF RECORD:
VanderVennen Lehrer
Barristers & Solicitors
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT