NANCY YARIELA FLORES PAZ Applicant v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2023 FC 145

Date: 20230127 Docket: IMM-1194-23 Citation: 2023 FC 145 Toronto, Ontario, January 27, 2023 PRESENT: Madam Justice Go BETWEEN: NANCY YARIELA FLORES PAZ Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondents ORDER AND REASONS [ 1 ] The Applicant, Ms. Nancy Yariela Flores Paz seeks a stay of removal to Honduras scheduled for January 29, 2023 at 2:23 p.m.

The motion for stay is brought as interlocutory relief to an Application for Leave and for Judicial Review of a decision of an Inland Enforcement Officer [Officer] of Canada Border Services Agency [CBSA] dated January 25, 2023 denying the Applicant’s request for a deferral of her removal [Decision]. [ 2 ] For the reasons set out below, I decline to hear the motion. [ 3 ] The Applicant entered Canada on May 10, 2019. The Applicant made a refugee claim which was denied by the Refugee Protection Division [RPD] on September 8, 2021.

The Applicant’s present counsel filed a leave application on the Applicant’s behalf to the Federal Court of the negative RPD decision on September 29, 2021; leave was denied by the Court on June 13, 2022. [ 4 ] The Applicant submitted an application for permanent residence on humanitarian and compassionate grounds [H&C] which was received by the Immigration, Refugees and Citizenship Canada on November 28, 2022. [ 5 ] By a letter dated November 10, 2022, CBSA notified the Applicant to attend a removal interview on November 30, 2022.

The Applicant was issued a Direction to Report for removal dated December 7, 2022. [ 6 ] The Applicant filed a deferral request on December 20, 2022. The Applicant’s deferral request was based in part on the outstanding H&C application, and the risks she allegedly faces as a member of LGBTQ+ community. [ 7 ] The Decision stated that the processing of the Applicant’s H&C application was cancelled on December 29, 2022 and there is no outstanding application. The Applicant is not eligible for Pre-Removal Risk Assessment until June 12, 2023. [ 8 ] The Applicant raises a number of issues with respect to the Decision.

I need not address them all. I note that the Applicant’s allegations of risks based on sexual orientation has already been rejected by the RPD on credibility grounds. [ 9 ] The Applicant seeks to rely on her brother’s positive refugee claim to bolster her case. I note that the Applicant’s brother alleged risks from criminal gangs in Honduras. The RPD found a nexus between his claim and the Convention ground of particular social group due to the brother’s disability.

No mention was made of the Applicant, let alone her sexual orientation, by the RPD in the brother’s positive refugee claim decision. [ 10 ] The Applicant is coming to the Court on the last minute, with over 1,200 pages of materials, to ask the Court to exercise its discretion to hear her motion. [ 11 ] The Respondent submits that the Applicant did not request a deferral of removal until two weeks after receiving her Direction to Report, on December 20, 2022. The Applicant further sent updated submissions to CBSA on January 6, 2023 and then on January 20, 2023.

The Respondent submits there is no explanation in the Applicant’s motion materials as to why the Applicant waited over a month after receiving the Direction to Report to provide deferral submissions. [ 12 ] I have also considered the Applicant’s response to the Respondent’s submission asking the Court not to hear the motion. The Applicant argued that it was the delay of the CBSA Officer in rendering the Decision that created the last minute stay.

However, the Applicant never provided an explanation as to why it took her until January 5, 2023 to provide all her submissions, when she received the Direction to Report on December 7, 2022. [ 13 ] The Respondent relies on Justice Zinn’s comments in Miranda v Canada (Minster of Public Safety and Emergency Preparedness) , 2012 FC 1057 at para 9 , in deciding not to hear a stay motion of an applicant who had delayed seeking a deferral from CBSA. [9] By August 10, 2012 they knew the date of their removal and yet failed to make their most recent deferral request until August 27, 2012.

At that time and in the days immediately following they filed nearly 350 pages of information that the enforcement officer was required to review and consider.It is remarkable that the officer was able to render any decision at all.

[10] The motion record filed on the motion is 315 pages long and it is simply not fair to either the respondent or this Court that they be put to the task of reading and digesting it and making reasoned submissions and a decision within approximately 36 hours because the applicants failed to act promptly in seeking their third deferral.

I further note that the written submissions of the applicants were made without the benefit of the deferral decision and are of little value to the respondent or the Court in preparing for the hearing of the requested motion. [ 14 ] While I do have the benefit of the Decision, I find Justice Zinn’s comments are still applicable in this case. [ 15 ] As such, I decline to hear the Applicant’s motion. ORDER in IMM-1194-23 THIS COURT ORDERS that the motion for a stay on an urgent basis will not be entertained by the Court as it would not be in the interests of justice so to do. "Avvy Yao-Yao Go" Judge