Toronto, Ontario, December 6, 2005
PRESENT: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
NEPTALI JHONIEL CARDENASMARTINEZ,
MARILINA VICARIO CIAMPI,
and BRYAN CARDENAS
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(A) Background
[1] The applicants seek an interim stay pending the determination of their application for leave and judicial review from the November 4th, 2005 decision of Pre-Removal Risk Assessment Officer Fox (the PRAA officer) who determined, based on the evidence before her, the applicants would not be at risk as defined by sections 96 or 97(1)(a) or (b) of the Immigration and Refugee Protection Act (the Act) if returned to Venezuela.
[2] Their removal from Canada to the United States is scheduled from Niagara Falls Ontariofor 9:00 a.m. on December 8th, 2005.
[3] The applicants are a family unit: father, mother and young son Bryan, 4 years of age, who came to Canada from the United States on June 28th, 2003 and made refugee claims. Those claims were rejected by the Refugee Protection Division (RPD) on March 9th, 2004, leave to appeal to the Federal Court denied.
[4] To the family unit must be added a second son Brandon, a Canadian citizen, born in Welland, Ontario on January 19th, 2005.
[5] Neptali Jhoniel Cardenas Martinez is a citizen of Venezuela who left that country in October 1996. He resided illegality in the United States until he sought safe haven in Canada. He never made a refugee claim in the United States which was a factor taken into account by the RPD.
[6] Marilina Vicario Ciampi who opened a fabric business in Caracas in 1997 left that country for the United States in the wake of the coming to power of President Chavez. She left her business in charge of her parents and, when matters worsened, she returned to Venezuela to sell it and flee the country. She married her husband in the United States where their son Bryan, a U.S. citizen, was born. To complicate matters, she is a citizen both of Venezuela and of Italy, but before the RPD she did not claim a well-founded fear of persecution from Italy.
[7] Neptali Jhoniel Cardenas Martinez's refugee claim in Canada was based on his fear of Chavez supporters and members of the Bolivarian Circles who he alleges tried to kill his father in 1998 and 1999 and his brother, who has the same name as he, except for a middle name and suffix name, in 2003. His father and brother still reside in Venezuela. His mother and sisters and perhaps another brother reside in the United States.
(B) Analysis
[8] The primary argument made by counsel for the applicants is that the PRAA officer failed to take into account the best interest of the children who were both listed as dependants in the PRAA application. The PRAA officer simply said that "the applicant has a Canadian child who is not subject to a removal order and is mentioned as a dependant in the PRAA application." So is their son Bryan who they say needs speech therapy which would not be available in public schools in Venezuela.
[9] A subsidiary argument is that the PRAA officer failed to take into account all of the evidence namely a DVD in the Spanish language of a demonstration.
[10] It is important to note that at the time the PRAA officer made her decision there was no outstanding application to become permanent residents in Canada on H & C grounds. In addition, this is not a case involving a decision of a removal's officer not to defer removal on H & C grounds.
[11] I agree with counsel for the respondent this stay application must be dismissed as the applicants have failed to meet any of the required conjunctive three-part test necessary for the grant of a stay.
[12] The applicants have not shown a serious issue even on the low threshold recognized by the Courts. In terms of the best interest of the children, assuming without deciding the PRAA officer could take H & C consideration into account, the applicants simply did not put forward any evidence on the point and made no submissions. They only listed the children without more. This is not sufficient. I rely upon El Ouardi v. Canada(Solicitor General) 2005 FCA 42 at paragraph 10 and Sherzady v. Canada (Minister of Citizenship and Immigration) 2005 FC 516.
[13] Counsel for the applicants relied heavily upon Munar v. Canada(Minister of Citizenship and Immigration) 2005 FC 1180. That case is not applicable. It dealt with a decision of a removal's officer not to defer on H & C grounds where there was an outstanding H & C application.
[14] In terms of Bryan's speech therapy needs that issue was not put before the PRAA officer who had no opportunity to consider it. I must reject that argument.
[15] There is no substance to the argument on the DVD which was not translated and in any event was dated and did not personally relate to the applicants.
[16] Irreparable harm has not been made out. The argument amounted to no more than the disruption of their lives should they be removed. This is not sufficient (see, Selliah v. Canada(Minister of Citizenship and Immigration) 2004 FCA 261 paragraphs 13 to 16).
[17] The balance of convenience in the circumstances clearly favours the Minister.
ORDER
THIS COURT ORDERS that this stay application is dismissed.
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7147-05
STYLE OF CAUSE: NEPTALI JHONIEL CARDENAS MARTINEZ,
MARILINA VICARIO CIAMPI,
and BRYAN CARDENAS
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 5, 2005
REASONS FOR ORDER
APPEARANCES:
| KAREN KWAN ANDERSON
|
|
| SHARON STEWART GUTHRIE
|
SOLICITORS OF RECORD:
| PACE LAW FIRM ETOBICOKE, ONTARIO |
|
|
JOHN H.SIMS, Q.C. DEPUTY ATTORNEY GENERAL OF CANADA |
FOR THE RESPONDENT |