Date: 20040311
Citation: 2004 FC 372
Docket: IMM-1491-04
BETWEEN:
ROGELIO PONCE MELCHOR
LUIS ALBERTO BUJANDA BASACA
Applicants
- and -
THE SOLICITOR GENERAL OF CANADA
Respondent
Docket: IMM-1492-04
BETWEEN:
ROGELIO PONCE MELCHOR
LUIS ALBERTO BUJANDA BASACA
Applicants
- and -
THE SOLICITOR GENERAL OF CANADA
Respondent
[1] The Applicants are citizens of Mexico who arrived in Canada on July 17, 2001.
[2] The Applicants have been in a same-sex common law relationship since 1998.
[3] The Applicants are well-educated and both have good employment positions in Canada.
[4] The affidavit of Rogelio Ponce Melchor reads in part as follows at paragraphs 5, 6, 7, 8, 9, 10, 11 and 12:
5. To live with a constant underlying fear simply because of our sexual orientation is not a real life.
6. In Mexico it is impossible to be an openly gay couple, which in our case simply means being social as a couple and people knowing that we are a couple. This is something we have experienced while living in Canada. In Mexico, we had to pretend that we were just roommates. If it had been discovered that we were a couple, the reaction towards us would have been similar to that of what happens to effeminate gay men or transvestites.
7. In spite of the Mexican government stating that gays are a vulnerable group, the government has done very little to actually make Mexico a safe place for gay men and women. The reason is that that culture of machismo is very strong and the government has not addressed this culture. As a result even with new laws we continue to be marginalized and openly rejected.
8. The general attitude of the population is reflected in those who are supposed to uphold the law and protect us. The attitude generally is not to show sensitivity towards gays in order not to be accused of being either gay or gay friendly. I know this personally because my sister lives in a 'social housing community', where most of the people living there are municipal workers including policemen.
9. When we lived in Mexico we did not choose to hidd (sic) our sexuality and being a couple from friends, family, and our workplace; rather, he had to do so in order to be able to live a tranquil life in a society that considers us to be sick people and families who prefer to ignore the truth because of the same and rejection they have themselves towards homosexuals. In other words we did not choose to hide our relationship but had to do so as part of surviving.
10. During our three years of living together in Mexico, Luis Alberto was received at my home as a friend but when my family noticed that he always was with me, I was told not to bring him around anymore. My family dynamic deteriorated to such an extent that when my sister or mother came to my home, they would never come in if Luis Alberto was at home. I should mention that my brothers never came to visit me.
11. At Luis Alberto's home, the situation was not very different when I went to visit. In fact, on one of the three occasions that I ever went with him home, on his mother's birthday, I gave her a cake, which resulted in his father telling Luis Alberto to stop being friends and not to dare to do 'queer' things. Because of the general attitude of our families, who basically distanced themselves from us, we lived our lives apart from them.
12. While we know that there is a large gay community in Mexico City, there is no real gay area where one could live and work in peace. We are not interested in gay bar scene as representing our sense of identity and protection. The authorities in Mexico City are no better towards gay men than in other parts of the country and because we knew this, we did not see the need to move to Mexico City.
[5] The Applicants made a Refugee claim in Canada which was denied. The Immigration and Refugee Board (Refugee Division) in its decision at page 12 (Applicants' Motion Record, IMM-1491-04, page 65) stated:
The claimants are obviously a committed same sex couple and they intend to continue their cohabitation together. They are well-educated individuals who were regularly employed in Mexico in responsible positions. According to them, because they have felt more comfortable living together in Canada than they did in Mexico, their preference is to remain here. If they intend to seek any humanitarian or compassionate considerations outside the refugee determination process that would allow them to do so, they would both appear to be likely to successfully adapt to a future life in Canada.
[6] The Applicants filed a Humanitarian and Compassionate application (H & C) on or about October 31, 2002. This application was denied on January 30, 2004.
[7] The Applicants filed a Pre-Removal Risk Assessment (PRRA) application which was rejected on January 30, 2004.
[8] The Applicant, Rogelio Ponce Melchor, filed a medical report from Dr. Wahan Wanis, a psychiatrist who is an associate clinical professor at UBC, which stated:
To Whom It May Concern
Re: Rogelio Ponce
Mr. Ponce has been under my care for treatment of Post Traumatic Stress Disorder as well as depression.
He has been responding to treatment and has adjusted to the Safety and Securtiy (sic) of the Canadian way of life.
In my opinion returning this patient to the country of origin will result in significant psychological damage and re-traumatization. This could also lead to suicidal Behaviour.
In my opinion he and his partner will also be subject of ridicule due to their sexual orientation.
I would urge you to reconsider your decision and assist in this patient's psychological Healing process and allow him to stay in Canada.
Analysis
[9] It is now accepted that an officer has some discretion and may, in certain circumstances, stay the removal of an applicant (see Wang v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 295 (F.C.T.D.)).
[10] In order to obtain a stay, the Applicants must satisfy the requirements set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.), at page 305:
This Court, as well as other appellate courts have adopted the test for an interim injunction enunciated by the House of Lords in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 [Footnote 3 appended to judgment]. As stated by Kerans J.A. in the Black case supra:
The tri-partite test of Cyanamid requires, for the granting of such an order, that the applicant demonstrate, firstly, that he has raised a serious issue to be tried; secondly, that he would suffer irreparable harm if no order was granted; and thirdly that the balance of convenience considering the total situation of both parties favours the order.
The Applicants must meet all three branches of the tri-partite test.
Serious Issue
[11] I am of the opinion that the Applicants have raised a serious issue to be tried which is: Should the officer have requested updated information in the H & C file before rendering a decision in light of the fact that the application had been filed approximately 14 months earlier?
Irreparable Harm
[12] I am of the opinion that the Applicants would suffer irreparable harm if the stay of removal is not granted as the letter of Dr. Wahan states that returning the Applicant Rogelio Ponce Melchor to Mexico would result in "significant psychological damage and re-traumatization". The doctor also stated that removal could lead to suicidal behaviour.
Balance of Convenience
[13] The balance of convenience favours the Applicants. Both Applicants are employed and they are not a threat to the public nor are they a security risk. The Applicants had made their own travel arrangements to go back to Mexico. The Minister will be able to remove the Applicants if their applications are not successful.
[14] The Applicants' motion for a stay of the removal order issued against them is stayed until their applications for leave for judicial review are denied and, if leave is granted, the removal order is stayed until the applications are determined by the Court.
[15] The styles of cause in these matters are amended by deleting the words "The Minister of Citizenship and Immigration" and adding as a Respondent "The Solicitor General of Canada".
(Sgd.) "John A. O'Keefe"
Judge
Vancouver, B.C.
March 11, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1491-04 and IMM-1492-04
STYLE OF CAUSE: ROGELIO PONCE MELCHOR et al.
- and -
THE SOLICITOR GENERAL OF CANADA
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: March 9, 2004
REASONS FOR ORDER: O'KEEFE J.
DATED: March 11, 2004
APPEARANCES:
Ms. Fiona Begg FOR APPLICANTS
Ms. Kim Shane FOR RESPONDENT
SOLICITORS OF RECORD:
Ms. Fiona Begg FOR APPLICANTS
Barrister & Solicitor
Vancouver, BC
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada