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Date: 20060426

Docket: IMM-2051-06

IMM-2073-06

Citation: 2006 FC 518

Toronto, Ontario, April 26, 2006

PRESENT:      The Honourable Mr. Justice Pinard

Docket: IMM-2051-06

BETWEEN:

OMECTA PETERS and CARLOS PETERS

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

Docket: IMM-2073-06

AND BETWEEN:

OMECTA PETERS and CARLOS PETERS

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION and

THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPARDENESS

Respondent

REASONS FOR ORDER AND ORDER

[1]                The applicants, a mother and her 22 year old son, are seeking a stay of removal from being deported to St. Vincent and Grenadines. They are challenging two different decisions, a negative Pre-Removal Risk Assessment and the refusal of a CBSA Enforcement Officer to defer removal pending determination of a humanitarian and compassionate application (H & C) for permanent residence and determination of this Court of a judicial review application challenging the negative Pre-Removal Risk Assessment.

[2]                Upon hearing Counsel for the parties and upon reviewing the evidence, I find that the applicants have failed to establish the existence of a serious issue with respect to any one of the relevant decisions, which is sufficient to deny the requested stay of removal.

[3]                Indeed, the applicants are failed refugee claimants who submitted a completed Humanitarian and Compassionate application on June 22, 2006.

[4]                With respect to the Pre-Removal Risk Assessment, it appears clearly that the PRRA Officer considered the relevant evidence, including the additional evidence concerning more contemporary threats made by the ex-spouse to the female applicant, before coming to the same conclusion as the Refugee Protection Division with respect to state protection in St. Vincent:

Any changes in country conditions that have occurred in St. Vincent since the RPD are to their advantage... In the event that he ever tries to act on these threats, the police would likely respond appropriately and effectively.

[5]                In the circumstances, I conclude that the applicants have failed to raise a serious issue concerning to the reasonableness of the PRRA Officer's decision.

[6]                With respect to the negative deferral of removal decision made by the CBSA Expulsions Officer, it appears clearly that the Officer specifically directed her mind the pending H & C application but determined that the application was not imminently going to be determined. There was no duty on the Officer to defer removal pending determination of the H & C application completed approximately 10 months ago (see, for example, Simoes v. M.C.I. [2000] F.C.J. No. 936, (F.C.T.D.) para. 12., Mohammed Abdul Mollah v. The Solicitor General of Canada (September 28, 2004) IMM-8072-04 (FC) per Dawson J.). Furthermore, there is no duty upon the Officer to defer removal on allegations of risk that have already been assessed by the authorities with jurisdiction to consider risk (see Wang v. M.C.I., [2001] 3 F.C. 682, [2001] F.C.J. No. 295).

[7]                The test for granting a stay is well established. The moving party must establish three things, a.     That there is a serious question to be tried;

b.          That the moving party would suffer irreparable harm if the injunction were not granted; and

c.          That the balance of convenience is in favour of the moving party.

(See Toth v. M.E.I. (1988), 86 N.R. 302 (F.C.A.)

[8]                The requirements of the tri-partite test are conjunctive. As in the present case the applicants have failed to satisfy the first requirement of establishing a serious question to be tried, their motion must be dismissed.

ORDER

The motion for a stay of removal is dismissed.

                                                                                                "Yvon Pinard"

Judge


FEDERAL COURT

Names of Counsel and Solicitors of Record

DOCKET:                                           IMM-2051-06

                                                            IMM-2073-06   

STYLE OF CAUSE:                                                               Docket: IMM-2051-06

                                                            OMECTA PETERS and CARLOS PETERS v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Docket: IMM-2073-06

OMECTA PETERS and CARLOS PETERS v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPARDENESS

PLACE OF HEARING:                     Toronto, Ontario

DATE OF HEARING:                       April 24, 2006

                                                    

REASONS FOR ORDER

AND ORDER BY:                             Pinard, J.

DATED:                                             April 26, 2006

APPEARANCES BY:                

Ms. Barbara Jackman                          FOR THE APPLICANTS

Mr. Jamie Todd                                    FOR THE RESPONDENT

                             

SOLICITORS OF RECORD:   

Ms. Barbara Jackman

Toronto, ON                                         FOR THE APPLICANTS

John H. Sims, Q.C.

Deputy Attorney General of Canada      FOR THE RESPONDENT


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