Federal Court Decisions

Date: 20070206

Docket: IMM-1472-06

Citation: 2007 FC 135

Toronto, Ontario, February 6, 2007

PRESENT:     The Honourable Mr. Justice Hughes

BETWEEN:

PAUSIDES COROMOTO MILLA FLORES

LUBEIRA MARGARITA MILLA RONDON

Applicants

and

THE MINISTER OF PUBLIC SAFETY

AND EMERGENCY PREPAREDNESS

Respondent

REASONS FOR ORDER AND ORDER

[1]               This is an application for a stay of a removal order made against the Applicants until such time as the Immigration and Refugee Board has examined and determined the Applicants’ application to re-open the proceedings in respect of their refugee claims.

[2]               The Record indicates that the Applicants have endeavoured to pursue every remedy available to them under the Immigration and Refugee Protection Act (IRPA) without success to this point.  The proceeding that forms the beginning of the issue here was a claim for international protection made to the Board and heard on July 7, 2004.  Apparently, the Board followed the so called “reverse order” questioning during that hearing without protest from the Applicants and probably Applicants’ counsel agreed to such procedure at that time.  On July 22, 2004, the Board gave a decision refusing the claim.  Leave was sought to apply for judicial review from that decision and dismissed by this Court on November 27, 2005.

[3]               On November 17, 2005, the Applicants received a negative Pre-Removal Risk Assessment and were to be removed.  The Applicants, however, had an outstanding Humanitarian and Compassionate application under way and sought deferral of removal on that basis.  That Humanitarian and Compassionate application was refused on February 11, 2006, and a removal interview was scheduled for March 3, 2006.  The Applicants attended that interview and were directed to report for removal on April 3, 2006.

[4]               However, the Applicants had on February 17, 2006, made an application to the Board for re-consideration of their original claim having regard to the “reverse order” questioning and the decision of this Court in Thamotharem v. Canada (MCI), 2006 FC 16, now under appeal to the Federal Court of Appeal.  The Board responded to this application stating in a letter dated March 22, 2006, inter alia:

It appears that your application is based on the use of the Chairperson’s Guideline 7 and the Federal Court’s decision in Thamotharem, Daniel V. M.C.I. (F.C., no. IMM-7836-04), Blanchard, January 6, 2006.

This Federal Court decision is being appealed to the Federal Court of Appeal (F.C.A., no. A-38-06).  As such, the Refugee Protection Division will not deal with your application to reopen until the Court of Appeal rules on the appeal.

The Refugee Protection Division will examine your application to reopen soon after the Federal Court of Appeal hands down its decision in Thamotharem.

[5]               Were it not for this response by the Board providing, in effect, an undertaking to consider the matter once the Federal Court of Appeal has given its decision, I would have readily dismissed the present application just as Justice de Montigny did in a similar case in which such a letter was apparently not at issue (Figuera v. Canada (MCI), May 16, 2006, IMM-2407-06).  I would have found that this Court had already dealt with the claim for international protection by dismissing the application for leave to apply for review of the Board’s decision.

[6]               However, since the Board has now taken upon itself the undertaking to re-visit the matter by its letter to the Applicants of March 22, 2006, it must accept the natural consequences of its actions.  It would be unfair for the Removals Officer to continue to remove the Applicants having regard to that undertaking.  The Applicants now are entitled not to be removed until the Board has made its determination following the decision of the Federal Court of Appeal in Thamotharem.  It will be so ordered.

[7]               As to certification of a question, the parties shall have until February 23, 2007, to make submissions as to such question.  There will be no Order as to costs.

ORDER

FOR THE REASONS PROVIDED HEREIN:

THIS COURT ORDERS that:

1.                  The removal of the Applicants from Canada shall be stayed until such time as the Immigration and Refugee Protection Board has determined the Applicants request to reopen their claims in accordance with the letter from the Board to the Applicants’ solicitor dated March 22, 2006;

2.                  The parties may submit a question or questions for certification on or before February 23, 2007, following which this Court will make a further Order as to that matter; and

3.                  No Order as to costs.

“Roger T. Hughes”

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-1472-06

STYLE OF CAUSE:                          PAUSIDES COROMOTO MILLA FLORES

LUBEIRA MARGARITA MILLA RONDON v.

THE MINISTER OF PUBLIC SAFETY and EMERGENCY

PREPAREDNESS

PLACE OF HEARING:                    Toronto, Ontario

DATE OF HEARING:                      February 6, 2007

REASONS FOR

ORDER AND ORDER:                   HUGHES J.

DATED:                                             February 6, 2007

APPEARANCES:

SOLICITORS OF RECORD: