Zuniga v. Canada (Minister of Citizenship and Immigration)

Zuniga v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2005-10-14
Neutral citation
2005 FC 1407
File numbers
IMM-5980-05
Decision Content
Date: 20051014
Docket: IMM-5980-05
Citation: 2005 FC 1407
Ottawa, Ontario, October 14, 2005
PRESENT: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
SUZY ELIANA GALINDO ZUNIGA
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant, a citizen of Peru, is seeking to stay the enforcement of the removal order made by the respondent. The application was debated on October 13, 2005, in a hearing by teleconference.
[2] There is no need to set out all of the facts of this matter except to point out that in 2002, the applicant, whose refugee claim was denied in 2001, filed an application for exemption from the obligation to apply for a permanent resident visa from outside Canada based on humanitarian and compassionate considerations (the HC application). She was asked to update the application in 2005, and it was denied on July 15, 2005, in a reasoned decision. The same day, the applicant’s PRRA application was also denied. On September 7, 2005, a removal officer informed the applicant of the two negative decisions and that her removal from Canada to Peru was scheduled for October 17, 2005.
[3] Today, the applicant is challenging only the decision on the HC application. Parallel with that legal proceeding, the applicant’s new counsel advised the Court that his client intended to file a new HC application. In this case, I am not persuaded that the applicant satisfies the three conjunctive tests applicable to stays (serious issue, irreparable harm and balance of convenience).
[4] With respect to the serious issue, suffice to say that the arguments raised in response to paragraphs 37 et seq. of the respondent’s written submissions appear to me to be well founded. In my opinion, the arguments raised by the applicant in her written submissions are largely insufficient to establish prima facie that by dismissing the HC application, the officer made a material error that could lead the Court to intervene in the context of an application for judicial review; the one that, I note in passing, was filed 11 days after the time provided by law. Further, the morning of the hearing, the applicant’s counsel invited the Court to examine a new argument based on paragraph 13.2 of immigration policy manual IP-05. Essentially, the HC application should have been referred to an HC officer rather than to a PRRA officer. It is difficult for the Court at this stage to weigh the value of this late argument given the fact that the respondent did not have the chance to prepare himself adequately to respond to it and that it could be necessary to have the affidavit from a representative of the respondent explaining the local practices in terms of the application of paragraph 13.2. Whatever the case may be, even if I agree that this last argument raises a serious issue, the applicant must still establish that she will suffer irreparable prejudice and that the balance of convenience favours her, which is not apparent in this case.
[5] First, I note that the personal risks tied to the applicant’s life or safety have already been the subject of two negative decisions which have become final. Those same risks were not raised again at the hearing. That said, I take into account the fact that the applicant is 64 years old, that she is single and that she has apparently been living together with her sister in Canada for seven years. The applicant, who was unemployed from December 2003 to April 2004, is now working part-time (26 hours a week) as a chef in the kitchens of a Peruvian restaurant; a job that she works together with another job as an on-call housekeeper for a cleaning company (25 hours per week). Essentially, today the applicant is arguing that a separation from her sister would be very painful for her and for the other members of the family in Canada; that it will cause prejudice to the owner of the restaurant where she is now working, and who is prepared, it would seem, to now offer her full-time employment; that she will find herself in a “macho” society in Peru where she will have little opportunity to count on the members of her family, already poorer than she, to survive; that after seven years she will have to face the difficulties inherent to returning to another environment, which could affect her health; and that she will also have to replace a number of belongings, including her home, which she lost in an earthquake while she was in Canada. I am certainly sympathetic to the applicant’s personal situation and I am aware that the enforcement of the removal order will cause significant inconvenience to the applicant and to her family, and perhaps even to her current employer. However, in the current state of the law, there is consistent case law from this Court generally refusing to equate to irreparable harm, the separation from family, financial prejudice and the other personal inconveniences arising from the enforcement of a removal order. That is the case here and the applicant has not submitted any new argument or pleaded any particular circumstance persuading me that in this case we should disregard these general principles or otherwise distinguish that jurisprudence.
[6] Second, in the decision that the applicant is challenging today, the PRRA officer determined that there were not sufficient humanitarian considerations to support her deciding in favour of granting a visa exemption. It is clear that the evidence in the record supports this finding. In her decision, the PRRA officer points out inter alia that the applicant can count on her family living in Peru (i.e. her mother, four brothers and three sisters), that she did not submit any medical report or any official document to the effect that she had lost her home following an earthquake, which was not recent, and that the Red Cross offered its assistance to earthquake victims. The PRRA officer, who also considered the factor of the applicant’s establishment in Canada, and other relevant factors, found that it would not cause the applicant any unusual and undeserved or disproportionate hardship to file her visa exemption application from outside Canada. The unreasonableness of that reasoning was not established prima facie by the applicant. Also, considering that the PPRA officer’s decision is not a refusal of landing in Canada but only a refusal of leave to file an application for an immigrant visa in Canada and considering that the removal order issued against the applicant is enforceable, the public interest that the respondent enforce this removal order quickly takes precedence over the personal inconvenience of the applicant, her family and her employer.
ORDER
THE COURT ORDERS that the application to stay be dismissed
“Luc Martineau”
Judge
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5980-05
STYLE OF CAUSE: Suzy Eliana Galindo Zuniga v. Minister of Citizenship and Immigration
PLACE OF HEARING: Ottawa, Ontario, by teleconference
DATE OF HEARING: October 13, 2005
REASONS FOR ORDER
AND ORDER: Martineau J.
DATE OF REASONS: October 14, 2005
APPEARANCES:
Jean-François Bertrand FOR THE APPLICANT
Lisa Maziade FOR THE RESPONDENT
SOLICITORS OF RECORD:
Bertrand, Deslauriers FOR THE APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada