MANUEL ANTONIO FLORES VASQUEZ Applicant v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2011 FC 35

Federal Court Cour fédérale Date: 20110114 Docket: IMM-171-11 Citation: 2011 FC 35 [ENGLISH TRANSLATION] Ottawa, Ontario, January 14, 2011 PRESENT: The Honourable Mr.

Justice Pinard BETWEEN: MANUEL ANTONIO FLORES VASQUEZ Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondents REASONS FOR ORDER AND ORDER [ 1 ] The applicant wants to obtain a stay of execution for the removal order against him, which will oblige the applicant to leave for Guatemala on January 17, 2011, until a decision is made on his underlying application for leave and judicial review concerning the refusal of his application for a pre-removal risk assessment (“PRRA”).

The motion was heard via teleconference. [ 2 ] The applicant indicates he received the PRRA decision on December 14, 2010. Thus, the applicant was given until December 29, 2010, to submit his application for leave and judicial review of this decision. However, the applicant did not file his application until January 10, 2011. Thus, this stay motion is added to an application for leave filed past the deadline. [ 3 ] In his notice of application for leave, the applicant alleges—without providing further details—that he was sick and that he was unable to make his way to his lawyer’s residence.

No details were provided regarding the nature of the alleged illness nor the dates during which the applicant was reportedly affected by it. No medical certificate was produced. [ 4 ] Furthermore, as noted by the respondent, the removal officer’s notes indicate that the applicant contacted his lawyer on December 17, 2010, after he had been informed of the PRRA decision in question. [ 5 ] In these circumstances, the applicant did not discharge the burden of providing a valid explanation for the entire length of the delay (see Beilin et al. v. the Minister of Employment and Immigration (1994), 88 F.T.R. 132 ).

As I noted in Arita et al. v. Minister of

Public Safety and Emergency Preparedness, 2010 FC 1019, my colleague Justice Luc Martineau, in Butt v.

The Solicitor General, 2004FC 1032, as appears in the following citations, dismissed the underlying motion due to an absence of a serious question because theapplicants had not provided a valid explanation for the late filing of their application for leave and judicial review: [4] As an extension of time is a condition precedent to the consideration of their leave application, the applicants must for the purposeof this stay motion, also establish that the request for an extension of time made in their leave application raises a serious issue.

To do so,the applicants must put before me evidence from which I could conclude that there are special reasons upon which this Court couldextend the time. In this respect, the case law requires, that the applicants establish that they had, throughout the period with respect towhich the extension is being sought, the intention to challenge the decision in issue, but that they were prevented from doing so byreason of factors which were beyond their control (Semenduev v. Canada (Minister of Citizenship and Immigration) (2003), 2003 FCT612 , 234 F.T.R. 222 at para. 2 (F.C.T.D.), [1997] F.C.J.

No. 70 at para. 2 (F.C.T.D.) (QL)). Manifestly, those conditions arenot satisfied in the present case. [. . .] [9] As the applicants have failed to put before me evidence upon which I could conclude that their request for an extension raises aserious issue, it follows that I cannot consider their application for judicial review as raising a serious issue. Since the first requirement ofthe tripartite test (serious issue, irreparable harm and balance of convenience) set out in Toth v. Canada (Minister of Employment and Immigration) (1988), (FCA), 86 N.R. 302 (F.C.A.), (1988), 6 Imm.

L.R. (2nd) 123 (F.C.A.) is not met here, thepresent motion for stay must fail. See, to the same effect, Dessertine et al. v. Minister of Citizenship and Immigration (August 14, 2000), IMM-3931-00; Paredes v.Minister of Citizenship and Immigration (October 20, 1997), IMM-3889-97; Shellner v.

Minister of Citizenship and Immigration (April23, 1996), IMM-1378-96 and Semenduev, above. [6] What is more, I believe that the applicant failed to prove the existence of a serious question related to his underlying applicationfor leave and judicial review, which, in the case’s current state, clearly appears to be without merit from my point of view. [7] Indeed, I do not see anything reprehensible about the PRRA officer’s assessment of the facts, which led to his conclusion that inthe absence of specific and precise evidence in this case, the risk of falling victim to a criminal gang in Guatemala is a general risk asopposed to a personal risk (see Perez et al. v.

Minister of Citizenship and Immigration, 2009 FC 1029 and Menendez et al. v. Minister ofCitizenship and Immigration, 2010 FC 221). [8] Finally, the PRRA officer did not err by excluding the humanitarian and compassionate reasons and by not considering the bestinterests of the applicant’s child when he assessed Mr. Vasquez’s application. In Varga v.

Canada (Minister of Citizenship andImmigration), 2006 FCA 394 , [2007] 4 F.C.R. 3, at paragraphs 6 to 13, the Federal Court of Appeal clearly indicated that themandate of the officer called upon to make a decision on a PRRA application consists of considering whether the person who is makingthe application meets the conditions set out in sections 96 to 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (theAct).

The Court specified that the PRRA application must not be confused with the application set out at subsection 25(1) of the Act,which allows individuals to apply for an exemption for humanitarian and compassionate reasons. [9] As a result, the applicant’s failure to prove the existence of a serious question related to his underlying application for leave andjudicial review is fatal and must result in the dismissal of his stay motion. [10] Thus, the motion is dismissed. ORDER

The stay motion for the removal order to which the applicant is subject—and which is intended to send him back to Guatemala on January 17, 2011—is dismissed. “Yvon Pinard” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-171-11 STYLE OF CAUSE: MANUEL ANTONIO FLORES VASQUEZ v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS DATE OF TELECONFERENCE: January 12, 2011 REASONS FOR ORDER AND ORDER: Pinard J. DATED: January 14, 2011 APPEARANCES : Claudia Aceituno FOR THE APPLICANT Sébastien Dasylva FOR THE RESPONDENT

SOLICITORS OF RECORD : Claudia Aceituno FOR THE APPLICANT Montréal, Quebec Myles J. Kirvan FOR THE RESPONDENT Deputy Attorney General of Canada