ANDRES FELIPE DONADO GANDARA Applicant v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2024 FC 115

Date: 20240124 Docket: IMM-10010-23 Citation: 2024 FC 115 Toronto, Ontario, January 24, 2024 PRESENT: Madam Justice Go BETWEEN:ANDRES FELIPE DONADO GANDARAApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent ORDER AND REASONS [1] The Applicant, Andres Felipe Donado Gandara, seeks a stay of removal to Colombia scheduled for January 28, 2024.

The motion forstay is brought as interlocutory relief to an Application for Leave and for Judicial Review [ALJR] of a decision dated July 25, 2023rejecting the Applicant’s Pre-Removal Risk Assessment [PRRA] Application [Decision]. [2] Having considered the material filed by the parties, and having heard the submissions of counsel for the parties, I am granting theApplicant’s motion for a stay of his removal. I. Context [3] The Applicant is a citizen of Colombia who initially arrived in Canada on November 3, 2021 from the United States [US] via theFort Erie Border. The Applicant’s father is a Canadian citizen.

A Canada Border Services Agency officer examined the Applicant’sdocuments, did not accept his DNA test document establishing his relationship to his father, and advised the Applicant to withdraw hisrefugee claim, on the basis that he failed to prove that he has a family member in Canada. [4] The Applicant withdrew his refugee claim and returned to the US. He returned to Canada with a DNA test from a certified laboratoryand was granted entry. He was determined ineligible to make a refugee claim, but eligible for a PRRA limited to a claim under

section 97of the Immigration and Refugee Protection Act, SC 2001, c 27. [5] In support of his PRRA application, the Applicant provided a statutory declaration stating he fears persecution and/or harm at thehands of the National Liberation Army [ELN] due to his refusal to join this group and his activism at the university where he spokeagainst the ELN’s activities. The Applicant alleges that the ELN declared him a military objective and subjected him to threats, assaults,and an attempted kidnapping.

The Applicant further states he received psychological treatment for several months as a result of thesethreats. [6] Among other things, the Applicant submitted letters from his mother and friends, documents from the attorney general, a letter fromthe ELN, and articles speaking to the issue of illegal armed groups in Colombia and other adverse country conditions. The PRRA officer[Officer] rejected the PRRA on the basis that the Applicant provided insufficient evidence linking the generalized risk in relation toillegal armed groups to his specific situation. II.

Issues and Legal Test for Obtaining a Stay [7] The only issue is whether a stay of removal should be granted in these circumstances. [8] In order to obtain a stay, the Applicant must meet the tripartite test articulated by the Supreme Court of Canada in Manitoba (AttorneyGeneral) v Metropolitan Stores Ltd, (SCC), [1987] 1 SCR 110 [Manitoba], RJR-MacDonald v Canada (AttorneyGeneral), (SCC), [1994] 1 SCR 311 [RJR-MacDonald], and R v Canadian Broadcasting Corp, 2018 SCC 5, which isthe test to be applied to stays of removal: Toth v Canada (Minister of Employment and Immigration) (1988), (FCA),86 NR 302, 11 ACWS (3d) 440 (FCA). [9] A stay of removal is warranted only if all three elements of the test are satisfied, namely: (

i) the underlying application for judicialreview raises a serious issue; (ii) the moving party will suffer irreparable harm if the stay is not granted and the removal order isexecuted; and (iii) the balance of convenience favours the granting of the order. [10] The application of this test is highly contextual and fact-dependent. As the Supreme Court of Canada explained, "“[u]ltimately, thequestion is whether granting the injunction would be just and equitable in all the circumstances of the case:”" Google Inc v EquustekSolutions Inc, 2017 SCC 34 at para 1. III. Analysis

A. Serious Issue [11] With respect to the PRRA Decision, the Applicant submits that: a. The Officer erred in the proper assessment of the documentary evidence on record.

The Applicant submits, among others, that theOfficer erred by attributing little probative value to the documentary evidence, focusing on the missing contents of the evidencerather than what the evidence says, failing to address what the Applicant stated in his statutory declaration to determine if thedocumentary evidence supports the Applicant’s fear of risk, conducting a selective review of the evidence, and adopting anoverzealous and microscopic approach to scrutinizing the evidence; and b. The Officer unreasonably assessed the Applicant’s personalized risk in Colombia.

Contrary to the Officer’s finding, the risk theApplicant faces arose due to his refusal to join the ELN, and as such, he faces a personalized risk not faced generally by others inColombia. [12] The Applicant notes that this Court issued a production order on January 16, 2024 with respect to the underlying ALJR, furtherconfirming that a serious issue has been established, citing Angela Idaly Vargas Perez v Canada (Citizenship and Immigration), 2023 FC1144 and Ladino Torres v Canada (Citizenship and Immigration), (FC). [13] At the hearing, while continuing to submit that the Applicant is asking the Court to reweigh evidence, the Respondent concededthere is a serious issue in this case. [14] I find that the Applicant has established serious issue. [15] As I have noted in Shalaby v Canada (Citizenship and Immigration), 2022 FC 1699 at para 15, the issuance of a production orderpoints to the Court’s finding of a fairly arguable case, that goes beyond the "“not frivolous or vexatious”" threshold required on a staymotion. [16] In addition, in light of the information before me, I find that at least one of the issues raised by the Applicant is neither frivolous norvexatious.

As such, I find the Applicant has met the first prong of the test. B. Irreparable Harm [17] Irreparable harm refers to harm which cannot be compensated in money; it is the nature rather than the magnitude of the harm,which is to be examined: RJR-MacDonald at 341. In the context of a stay of removal, the harm usually relates to the risk to theindividual(

s) of harm upon removal from Canada. It may also include specific harm that is demonstrated in regard to any persons directlyaffected by the removal, and who will be remaining in Canada: see Tesoro v Canada (Minister of Citizenship and Immigration), 2005FCA 148 at para 28. [18] The law requires that irreparable harm be established based on evidence, not assertions or speculation: Atwal v Canada (Minister ofCitizenship and Immigration), 2004 FCA 427 at paras 14-15.

However, the test for irreparable harm is also not one of absolute certainty:Suresh v Canada (Minister of Citizenship and Immigration), (FCA), [1999] 4 FC 206 (CA) at 218-219. [19] Irreparable harm may arise from a risk to life, liberty, or safety that the individual would be exposed to if removed to their country oforigin: Begashaw v Canada (Minister of Citizenship and Immigration), 2009 FC 462 at para 54, citing Sivakumar v Canada (Minister ofEmployment and Immigration), (FCA), [1996] 2 FC 872 (CA); Hernandez v Canada (Solicitor General), [1993] FCJNo 950 (TD); Membreno-Garcia v Canada (Minister of Employment and Immigration), (FC), [1992] 3 FC 306 (TD);Suresh v Canada, (ON SC), [1998] OJ No 296, 49 CRR (2d) 131. [20] The Applicant argues that in this case, where the serious issue relates to the risk of life, irreparable harm will flow from the seriousissue, as it is based on the same risk.

The Applicant cites Roman v Canada (Citizenship and Immigration), [Roman] atpara 8 and Matthew v Canada (Minister of Citizenship and Immigration), 2022 FC 924 [Matthew] at para 22. [21] The Applicant also argues that given the strength of the underlying ALJR, the mootness of the underlying ALJR also establishesirreparable harm.

Once he is removed, a redetermination would not be meaningful in the Applicant’s case, as he would be subject to risk. [22] The Respondent submits irreparable harm does not flow from the serious issue, citing Racz v Minister (Citizenship andImmigration), (FC) [Racz]. [23] I agree with the Applicant that Racz is distinguishable, but not for the reason noted by the Applicant, as being there was noproduction order issued in that case.

Rather, I note the Court did not make a finding on serious issue in Racz and instead foundirreparable harm to be determinative. [24] The Respondent also argues that the evidence does not sufficiently demonstrate the risk that the Applicant alleges and that theApplicant is asking the Court to reweigh the evidence. I reject these arguments as I find there is a serious issue with respect to the PRRAOfficer’s assessment of the evidence. [25] I acknowledge the Respondent’s argument that the potential mootness of a pending judicial review does not necessarily constituteirreparable harm.

However, in the context of this case, there is considerable overlap between the evidence and arguments with respect toserious issues and those relating to irreparable harm. [26] Under these circumstances, the potential mootness of the underlying application for judicial review amounts to irreparable harm:Matthew at paras 21-22, Figurado v Canada (Solicitor General), 2005 FC 347 at para 45, and Roman at para 8.

[ 27 ] I therefore find the Applicant has met the second prong of the tripartite test. C.

Balance of Convenience [ 28 ] In the third branch of the test, the Court has to consider where the balance of convenience lies, taking into consideration the public interest to be weighed together with the interests of private litigants: Manitoba at 128-129. [ 29 ] I acknowledge that there is public interest in ensuring the expeditious and effective execution of a removal order, however, it should be balanced against the preserving of public confidence that Canada does not deport individuals without properly assessing their risk, as required under the Canadian Charter of Rights and Freedoms and international human rights law. [ 30 ] The Respondent cites the Federal Court of Appeal’s decision in Ghanaseharan v Canada (Minister of Citizenship and Immigration) , 2004 FCA 261 [ Ghanaseharan ] at paras 21-22 to highlight the importance of the Respondent’s interest in maintaining the integrity of the immigration system.

I note, however, unlike the applicant in Ghanaseharan , the Applicant in this case did not have three negative administrative decisions, all of which this Court upheld. On the contrary, the Applicant has one risk assessment by the Officer without an oral hearing, and that Officer’s decision is currently under review by this Court, which has already issued a production order. [ 31 ] Balancing all of these factors, I find that the harm of removing the Applicant at this point is greater than the harm caused by delaying the removal until the underlying ALJR is resolved.

ORDER in IMM-10010-23 THIS COURT ORDERS that the application for a stay of removal pending the determination of the Applicant’s application for judicial review is granted. "Avvy Yao-Yao Go" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-10010-23 STYLE OF CAUSE: ANDRES FELIPE DONADO GANDARA v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD VIA VIDEOCONFERENCE DATE OF HEARING: January 23, 2024 ORDER AND REASONS: GO J. DATED: January 24, 2024 APPEARANCES: Omolola Fasina For The Applicant Alethea Song For The Respondent SOLICITORS OF RECORD:

Omolola Fasina Barrister & Solicitor London, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent