Federal Court Decisions

Date: 20031113

Docket: IMM-8506-03

Citation: 2003 FC 1340

Ottawa, Ontario, this 13^th day of November, 2003

Present:           THE HONOURABLE MR. JUSTICE O'REILLY                          

BETWEEN:

                                               RENATO EDOARDO ORTIZ JUAREZ

                                                                                                                                                       Applicant

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 Mr. Juarez has asked me to stay the execution of an order requiring him to leave Canada for his native Peru on November 15, 2003. His request does not, however, disclose any legal basis on which the Court might order the exceptional remedy of a stay.

[2]                 Mr. Juarez argues that the removal officer should have deferred enforcement of the removal order on the basis that Mr. Juarez has a pending application for an exemption, based on humanitarian and compassionate grounds, from the usual requirement that applications for permanent residence be made from outside Canada. He feels his application is likely to be favourable and, relying on the recent case of Antablioghli v. Canada (Minister of Citizenship and Immigration) 2003 FC 1245, [2003] F.C.J. 1576 (QL) (F.C.), suggests that the officer should have postponed his departure. In Antablioghli, the applicant's request for permanent residency had been under consideration for 21 months and was almost certain to be successful. Here, Mr. Juarez had delayed making his humanitarian and compassionate application for 18 months after his unsuccessful refugee claim and it is uncertain whether it will be granted. I do not consider the two situations to be analogous and, therefore, cannot find a serious issue to be tried. As such, Mr. Juarez has failed to satisfy the first branch of the test for a stay: Toth v. Canada (Minister of Citizenship and Immigration), [1988] F.C.J. No. 587 (QL) (T.D.).

[3]                 That, of course, is enough to dispose of this motion. However, I wish also to add that Mr. Juarez has not presented evidence capable of satisfying the second branch of the test, proof of irreparable harm, either. His affidavit mentions fear of his father in Peru and the fact that he helps his mother in Canada when she is sick. This alone is insufficient to constitute evidence of irreparable harm.

                                                                            ORDER

IT IS HEREBY ORDERED that:

4.          The motion is dismissed.

                                                                                                                                      "James W. O'Reilly"            

                                                                                                                                                               Judge                 

                                                                                   

                                                                 FEDERAL COURT

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             IMM-8506-03

STYLE OF CAUSE:                           RENATO EDOARDO ORTIZ JUAREZ v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER

AND ORDER BY:                           THE HONOURABLE MR. JUSTICE O'REILLY

DATED:                                                NOVEMBER 13, 2003

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: