2023 FC, 2023 FC 1180

Date: 20230830 Docket: IMM-10681-23 Citation: 2023 FC 1180 Toronto, Ontario, August 30, 2023 PRESENT: Madam Justice Go BETWEEN:URU LIYANAGE DON PRASAD NISHANTHA GUNASINGHE AGRA SAJEEWANI GOMES URU LIYANAGE DONA SAJINI PRASADHIKA GUNASINGHE URU LIYANAGE DONA CHANUKI SEHANSA GUNASINGHEApplicantsandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent ORDER AND REASONS [1] Mr.

Uru Liyanage Don Prasad Nishantha Gunasinghe [Principal Applicant or PA], his wife Agra Sajeewani Gomes [AssociateApplicant or AA], and their two daughters, Uru Liyanage Dona Sajini Prasadhika Gunasinghe [Sajini] and Uru Liyanage Dona ChanukiSehansa Gunasinghe [Chanuke] [together the “Applicants”] are citizens of Sri Lanka. They seek a stay of their removal to Sri Lanka,scheduled for August 31, 2023. [2] The Applicants submitted a request to defer their removal to the Canada Border Services Agency [CBSA] dated August 18, 2023[deferral request], asking for a reply by August 23, 2023.

As the Applicants did not receive a response from the CBSA by that date, onAugust 28, 2023 they filed an application for leave for judicial review [ALJR] with this Court to challenge the deemed refusal of theirdeferral request. [3] In a decision dated August 29, 2023, an Inland Enforcement Officer [Officer] denied the Applicants’ request to defer the execution ofthe removal order [Decision]. [4] Having considered the materials filed by the parties, and having heard the submissions of counsel for the parties, I am granting theapplication for a stay. I.

Context [5] The Applicants claim that they fear persecution from certain local politicians, including the PA’s cousin, due to the PA’s refusal tosupport their party during the 2018 municipal elections. The Applicants also allege that the son of the PA’s cousin was interested in theApplicants’ daughter, Sajini, but the feelings were not mutual. The PA accompanied Sajini to Canada in 2019 to study, then the PAreturned to Sri Lanka. [6] The Applicants allege further harassment by the agents of persecution in December 2019. The PA, AA and Chanuki fled to Canada inFebruary 2020 and made a refugee claim.

Their claim was denied by the Refugee Protection Division [RPD]; the subsequent appeal tothe Refugee Appeal Division [RAD] and judicial review were also dismissed. [7] In August 2023, the Applicants filed an application for permanent residency on humanitarian and compassionate grounds [H&Capplication]. [8] In their deferral request, the Applicants allege that they face ongoing risk since the refusal of their refugee claim and the risk of beingdetained or arrested upon their return. The Applicants sought a deferral of removal until: a.

A decision is rendered on their H&C application; b. the commencement of the third school term (December 2023); and/or c. the Applicants are eligible to make a Pre-Removal Risk Assessment in March 2024. II. Issues and Legal Test for Obtaining a Stay [9] The only issue is whether a stay of removal should be granted in these circumstances. [10] In order to obtain a stay, the Applicants must meet the tripartite test articulated by the Supreme Court of Canada in Manitoba(Attorney General) v Metropolitan Stores (MTS) Ltd, (SCC), [1987] 1 SCR 110, 38 DLR (4th) 321 [Manitoba], RJR-

MacDonald v Canada (Attorney General), (SCC), [1994] 1 SCR 311, 111 DLR (4th) 385 [RJR-MacDonald], and R vCanadian Broadcasting Corp, 2018 SCC 5, which is the test to be applied to stays of removal: Toth v Canada (Minister of Employmentand Immigration) (1988), (FCA), 86 NR 302, 11 ACWS (3d) 440 (FCA). [11] 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. [12] 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. [13] While in many cases, the threshold for the serious issue branch of the test is not high, in cases where the stay is requested followinga refusal to defer removal, a higher threshold applies.

The Applicants need to demonstrate a “likelihood of success” or “quite a strongcase” in regard to the underlying application for leave and judicial review: Wang v Canada (Minister of Citizenship and Immigration),2001 FCT 148, [2001] 3 FC 682 [Wang]; Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81,[2010] 2 FCR 311 [Baron] at para 67; and Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 [Lewis] at para43. III. Analysis A. Serious Issue [14] The Applicants raise several issues arising from the Decision: a.

The Officer failed to consider evidence that post-dated the RPD and RAD decisions which shows that the agent of persecution hasongoing interests in the Applicants, and the Officer’s failure to analyse the evidence is a reviewable error; b. The Officer failed to consider that there is a serious humanitarian crisis in Sri Lanka, and that the PA and AA would not haveaccess to medication upon their return. The Officer’s failure to give due consideration to such a compelling ground is a reviewableerror; and c.

The Officer failed to give due consideration to the children’s education needs, in particular the needs of Chanuki, the minor child,who has received her entire education in English. The officer also failed to consider the impact of the ongoing crisis in Sri Lankaon the children’s educational needs. [15] The Applicants need only to establish at least one serious issue, on the elevated threshold as set out in Wang at para 10.

Havingreviewed the Decision, as well as the evidence and submissions put before the Officer, I find the Applicants have done so. [16] The Applicants submitted that Sajini and Chanuki have been enrolled in the Canadian education system since 2020. The Applicantsfurther submitted the 2023 Sri Lankan Academic Calendar indicating that currently students are undergoing the second term from Julyuntil October.

The Applicants argued that disrupting the education of Sajini and Chanuki by removing the children midway through thesecond term would not be reasonable and requested that removal be deferred until the end of the academic term in December 2023, toallow for a smoother transition. The Applicants further noted that the children received their education in Canada in the Englishlanguage, while public schools in Sri Lanka do not offer education in English. Prior to her coming to Canada, Chanuki was receiving hereducation in English in a private school.

The Applicants submitted that Chanuki, who is starting Grade 10 in September 2023 in Canada,will face a stressful transition if she starts school in the Sinhala language.

Finally, the Applicants submitted that the school disruptionshould be assessed in the context of the adverse country conditions in Sri Lanka where Sri Lankans are facing challenges with access tobasic rights, such as education and health care. [17] As the Federal Court of Appeal [FCA] noted in Baron, at para 51, “there are a range of factors that can validly influence the timingof removal” including, among others, “children’s school years.” [18] Also in Lewis at paragraphs 82-84, the FCA re-affirmed that enforcement officers are required to consider the short-term interests ofthe child, such as the need for a child to finish a school year during the period of the requested deferral. [19] In this case, there is a serious issue as to whether the Officer erred in their consideration of the short-term interests of the children todefer the removal until the end of December 2023.

The Officer noted “insufficient evidence that the educational experience in Canadahas not afforded [Sajini] a foundation to thrive upon return”, and that “[a]s citizens of Sri Lanka[…] it would be reasonable to deduce thatthey would have forged friendship during their time there and that they may form friendships once more.” The Officer also noted that thechildren have been reported as adjusted and thriving in the midst of a pandemic.

There is a serious issue as to whether these reasonsproperly considered the short-term interests of the children. [20] The Respondent relies on Oworu v Canada (Public Safety and Emergency Preparedness), (FC) [Oworu] toargue that the Officer was not required to undertake a substantial Best Interests of the Child analysis. The Respondent further submits itwas not unreasonable to say that the children would enter the school year halfway through the term if they leave now, and if they leavein December, they would be leaving halfway through the school year in Canada.

Either way, it would be disruptive for the children.Further, the Respondent argues it was reasonable for the Officer to infer that since the children had overcome a stressful period in theirschooling due to the pandemic, they would have the ability to adjust upon their return. [21] I am not persuaded by the Respondent’s submission.

[22] In Oworu, while denying the stay to allow a child to finish kindergarten, the Court nevertheless acknowledged the “amplejurisprudence in this Court supporting the premise that a stay may be warranted where there are special considerations, for example,where the student is in her graduating year, or where the child needs special accommodation not available in the country of removal.” [23] Here, there was evidence of special considerations, including the current crisis in Sri Lanka which impacts the educational needs ofSajini and Chanuki, as well as the circumstances with respect to Chanuki’s need to adjust to a system based on Sinhala as opposed toEnglish.

The Applicants’ argument that the Officer has failed to consider these considerations give rise to a serious issue. B. Irreparable Harm [24] Irreparable harm refers to harm which cannot be compensated in money; it is the nature rather than the magnitude of the harm whichis to be examined: RJR-MacDonald, at p 341. In the context of a stay of removal, the harm usually relates to the risk to the individual(s)of harm upon removal from Canada.

It may also include specific harms that are demonstrated in regard to any persons directly affectedby the removal, and who will be remaining in Canada: Tesoro v Canada (Minister of Citizenship and Immigration), 2005 FCA 148. [25] The law requires that irreparable harm be established based on evidence, not assertions or speculation: Atwal v Canada (Citizenshipand Immigration), 2004 FCA 427 at paras 14-15.

However, the test for irreparable harm is also not one of absolute certainty: Suresh vCanada (Minister of Citizenship and Immigration), (FCA), [1999] 4 FC 206 (CA) at para 12. [26] Irreparable harm may arise from a risk to life, liberty, or safety that an 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, 63 ACWS (3d) 912 (CA); Hernandez v Canada (SolicitorGeneral) (1993), 42 ACWS (3d) 892, [1993] FCJ No 950 (QL); Membreno Garcia v Canada (Minister of Employment andImmigration), (FC), [1992] 3 FC 306, 55 FTR 104 (TD) ; Suresh v Canada (1998), (ON SC), 49CRR (2d) 131, 77 ACWS (3d) 163. [27] In Danjuma v Canada (Public Safety and Emergency Preparedness), (FC), this Court held that the failure toconsider the educational considerations of minor children satisfied the first two prongs of the test. [28] Similarly here, I find that the Officer’s failure to consider Sajini and Chanuki’s short-term educational considerations amounts toirreparable harm: Iheonye v Canada (Public Safety and Emergency Preparedness), 2018 FC 375, at paras 19-20.

C. Balance of Convenience [29] In the third branch of the test, the Court has to consider where the balance of convenience lies, taking into consideration the publicinterest to be weighed together with the interests of private litigants: Manitoba, paras 34, 38. [30] I acknowledge there is a public interest in the prompt removal of persons whose refugee claims have been denied.

I also note thatthe Applicants have had the benefit of several immigration applications and assessments since then. [31] However, taking into account the harm to Sajini and Chanuki on the one hand, and the inconvenience to the Respondent caused bydelay in removal on the other, I find that granting the stay until the underlying ALJR is determined would be just and equitable in all thecircumstances of the case. The balance of convenience thus lies with the Applicants.

ORDER in IMM-10681-23 THIS COURT ORDERS that the application for a stay of removal pending the determination of the Applicants’ application forjudicial review is granted. "Avvy Yao-Yao Go" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-10681-23 STYLE OF CAUSE: URU LIYANAGE DON PRASAD NISHANTHA GUNASINGHE, AGRASAJEEWANI GOMES, URU LIYANAGE DONA SAJINI PRASADHIKAGUNASINGHE, URU LIYANAGE DONA CHANUKI SEHANSA GUNASINGHEv THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING: HELD VIA VIDEOCONFERENCE DATE OF HEARING: August 30, 2023 ORDER AND reasons: GO J. DATED: august 30, 2023 APPEARANCES : Vakkas Bilsin For The Applicants Jazmeen Fix For The Respondent SOLICITORS OF RECORD : Vakkas Bilsin Lewis & Associates LLP Toronto, Ontario For The Applicants Attorney General of Canada Toronto, Ontario For The Respondent