ALEKSANDAR ALEKSANDROV Applicant v. THE MINISTER OF CITIZENSHIP, 2023 FC 136

Date: 20230127 Docket: IMM-1042-23 Citation: 2023 FC 136 Ottawa, Ontario, January 27, 2023 PRESENT: The Honourable Mr. Justice Ahmed BETWEEN:ALEKSANDAR ALEKSANDROVApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent ORDER AND REASONS I.

Overview [1] The Applicant, Aleksandar Aleksandrov, brings a motion for a stay of his removal from Canada, scheduled to take place on January30, 2023. [2] The Applicant requests that this Court order a stay of his removal to Bulgaria until the determination of an underlying application forleave and judicial review of the refusal of his deferral request by an Inland Enforcement Officer (the "“Officer”") of the Canada BorderServices Agency ("“CBSA”"). [3] For the reasons that follow, this motion is dismissed. I find that the Applicant does not meet the tri-partite test required for a stay ofremoval. II.

Facts and Underlying Decisions [4] The Applicant is a 27-year-old citizen of Bulgaria. [5] The Applicant was a permanent resident of Canada as a dependent child on a spousal sponsorship application, which was submittedby his then-step-father for his mother. His permanent resident status was revoked as a result of the finding of the Immigration Divisionthat his mother is inadmissible to Canada due to misrepresentation. [6] On December 30, 2023, CBSA informed the Applicant of his scheduled removal on January 30, 2023.

He was also scheduled totravel to Toronto on January 3, 2023, to attend an appointment at the Bulgarian Consulate to obtain a Bulgarian travel document. [7] The Applicant claims that he suffers from several medical issues, for which he requires treatment and has medical appointmentsscheduled for the days following his scheduled removal. He claims that he is unfit to fly due to these health concerns. [8] The Applicant claims that his sister is pregnant with her second child, due in April 2023.

The Applicant claims that he needs to be inCanada to support his sister during this time, particularly given her husband’s absences due to his employment and her history of mentalhealth issues. [9] The Applicant submitted his request to defer his removal to CBSA on January 20, 2023. In a decision dated January 27, 2023, CBSArefused the Applicant’s deferral request. The Officer found that the Applicant provided insufficient evidence to establish that his medicalissues would affect his travel or that he would be unable to access medical treatments in Bulgaria.

The Officer also found no evidence toconfirm that the Applicant’s sister is pregnant. The Officer noted that the Applicant’s initial reason for wishing to remain in Canada didnot include any mention of his sister, that the BIOC does not extend from the sister’s unborn child to the Applicant, and that the sister hasother options available to her to access support. For these reasons, the Officer refused the Applicant’s request to defer his removal. III.

Analysis [10] The tripartite test for the granting of a stay is well established: Toth v Canada (Minister of Employment and Immigration) (1988), (FCA), 86 NR 302 (FCA) ("“Toth”"); Manitoba (A.G.) v Metropolitan Stores Ltd., (SCC), [1987] 1SCR 110 ("“Metropolitan Stores Ltd”"); RJR-MacDonald Inc. v Canada (Attorney General), (SCC), [1994] 1 SCR 311("“RJR-MacDonald”"); R v Canadian Broadcasting Corp, 2018 SCC 5 , [2018] 1 SCR 196. [11] The Toth test is conjunctive, in that granting a stay of removal requires the applicant to establish: (

i) a serious issue raised by theunderlying application for judicial review; (ii) irreparable harm that would result from removal; and (iii) the balance of conveniencefavouring granting the stay.

A. Serious Issue [12] In RJR-MacDonald, the Supreme Court of Canada established that the first stage of the test should be determined on an "“extremelylimited review of the case on the merits”" (RJR-MacDonald at 314). This Court must also bear in mind that the discretion to defer theremoval of a person subject to an enforceable removal order is limited.

The standard of review of an enforcement officer’s decision isthat of reasonableness (Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 , [2010] 2 FCR311 at para 67) ("“Baron”"). [13] A decision refusing to defer removal requires an applicant to meet an elevated standard with respect to the first Toth requirement of aserious issue for trial, pursuant to Baron. [14] The Applicant submits that the underlying application raises serious issues about the reasonableness of the CBSA’s refusal of thedeferral request, specifically regarding the Officer’s assessment of the Applicant’s medical issues and the best interests of the childaffected by removal ("“BIOC”"). [15] The Respondent submits that there is no serious issue because the Officer reasonably assessed and refused the Applicant’s deferralrequest. [16] Having reviewed the parties’ motion material and the underlying decision, I agree that there is a serious issue to be tried.

Theunderlying application for judicial review raises issues surrounding the Officer’s proper assessment of the Applicant’s medical issuesand the BIOC, which are sufficiently serious to meet the first prong of the test. B. Irreparable Harm [17] At the second stage of the test, applicants are required to demonstrate that irreparable harm will result if relief is not granted.Irreparable harm does not refer to the magnitude of the harm; rather, it is a harm that cannot be cured or quantified in monetary terms(RJR-MacDonald at 341).

This Court must be satisfied on a balance of probabilities that the harm is not speculative, but does not have tobe satisfied that the harm will occur (Xu v Canada (Minister of Employment and Immigration), [1994] FCJ No 746, 79 FTR 107(FCTD); Horii v Canada (C.A.), (FCA), [1991] FCJ No 984, [1992] 1 FC 142 (FCA)). [18] The Applicant submits that he would suffer irreparable harm if removed to Bulgaria, due to his current medical conditions and theshort-term BIOC affected by removal, specifically his sister’s unborn child.

The Applicant submits that he requires a diagnosis andtreatment for his medical concerns and air travel could pose an imminent to his health. The Applicant also submits that his sister ispregnant and in light of the BIOC consideration, he needs to remain in Canada to support his sister during and after the birth of hersecond child. The Applicant submits this is particularly important given his sister’s history of mental health issues. [19] I am not persuaded that the Applicant will face irreparable harm upon return to Bulgaria.

There is limited evidence to meet thethreshold for irreparable harm concerning the Applicant’s medical issues, or to demonstrate that the Applicant could not receiveadequate medical care in Bulgaria. The Officer reasonably relied on a fitness-to-fly assessment to find that the Applicant is fit to travelby air, as he did in order to travel to Toronto on January 23, 2023. [20] Concerning the Applicant’s sister and the BIOC, I note the lack of evidence before the Officer that the Applicant’s sister is pregnantor that the Applicant is her sole source of support.

The Applicant initially failed to mention his sister as a reason for wishing to remain inCanada during his pre-removal interview on December 20, 2022. The best interests of the sister’s unborn child does not extend toestablish irreparable harm in the Applicant’s favour. C. Balance of Convenience [21] The third stage of the test requires an assessment of the balance of convenience—a determination to identify which party will sufferthe greater harm from the granting or refusal of the interlocutory injunction, pending a decision on the merits (RJR-MacDonald at 342;Metropolitan Stores Ltd at 129).

It has sometimes been said, "“Where the Court is satisfied that a serious issue and irreparable harm havebeen established, the balance of convenience will flow with the Applicant”" (Mauricette v Canada (Public Safety and EmergencyPreparedness), 2008 FC 420 at para 48). However, the Court must also consider the public interest to uphold the properadministration of the immigration system. [22] The Applicant submits that the balance of convenience favours granting the stay of removal.

The Applicant emphasizes that he waspreviously a permanent resident, has been compliant with Canadian law, and provides necessary support to his sister. [23] While the insufficient evidence of irreparable harm is determinative of this motion, the balance of convenience nonetheless weighsin favour of the Respondent. Subsection 48(2) of the Immigration and Refugee Protection Act, SC 2001, c 27, states that removal ordersmust be enforced as soon as possible.

The inconvenience that the Applicant may face as a result of removal does not outweigh theRespondent’s interest in enforcing the removal order expeditiously. [24] Ultimately, the Applicant does not meet the tri-partite test required for a stay of removal. This motion is therefore dismissed. ORDER in IMM-1042-23 THIS COURT ORDERS that the Applicant’s motion to stay his removal is dismissed. “Shirzad A.”

Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-1042-23 STYLE OF CAUSE: ALEKSANDAR ALEKSANDROV v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: by videoconference DATE OF HEARING: January 27, 2023 ORDER and Reasons: AHMED J. DATED: January 27, 2023 APPEARANCES : Valeriy Kozyrev For The Applicant Nicole Rahaman For The Respondent SOLICITORS OF RECORD : Kozyrev Law Professional Corporation Barrister and Solicitor Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent