2023 FC, 2023 FC 1192

Date: 20230901 Docket: IMM-10937-23 Citation: 2023 FC 1192 Toronto, Ontario, September 1, 2023 PRESENT: Madam Justice Go BETWEEN:CATHERINE IMIEGHOME OLA OLANREWAJU ADEGBOYEGA OLA OLUWADARA JESSE-DANIEL OLAApplicantsandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] Ms. Catherine Imieghome Ola, Mr. Olanrewaju Adegboyega Ola, and their minor child [together the “Applicants”] seek a stay ofremoval to Nigeria scheduled for September 5, 2023.

The motion for stay is brought as interlocutory relief to an application for leave andfor judicial review of a decision dated August 29, 2023 by an Inland Enforcement Officer [Officer] denying the Applicants’ request todefer the execution of the removal order [Decision]. [2] Having considered the materials filed by the parties, and having heard the submissions of counsel for the parties, I am dismissing theApplicants’ motion for a stay of their removal. I. Context [3] The Applicants are citizens of Nigeria. They came to Canada on February 15, 2018 between ports of entry in Quebec and made arefugee claim.

They were issued conditional departure orders on February 21, 2018. Their claim was dismissed by the RefugeeProtection Division. Subsequent appeal to the Refugee Appeal Division [RAD] was dismissed but the matter was returned to the RADafter a successful judicial review application. The RAD dismissed their appeal the second time on March 9, 2023, and leave for judicialreview was dismissed by the Federal Court [FC]. [4] The Applicants attended a removal interview with the Canada Border Services Agency on August 1, 2023. On August 11, 2023, theApplicants were issued a Direction to Report for Removal.

The Applicants submitted a request to defer removal on August 19, 2023[deferral request], asking the removal be deferred for at least six months in order to make the necessary arrangements for their transitionto Nigeria. [5] The Applicants submitted that they require more time as they have not been given sufficient time to provide notices to their landlordand employer and to arrange accommodation and employment in Nigeria. The Applicants also submitted that the minor child would needtime to adjust to their new life in Nigeria.

The Applicants further asserted that they have an outstanding application for permanentresidency status based on humanitarian and compassionate grounds [H&C application] and face high unemployment, housing and othersafety issues upon return to Nigeria. Finally, the Applicants submitted that they face new risks which would further complicate theirattempt of re-integration. II.

Issues and Legal Test for Obtaining a Stay [6] The only issue is whether a stay of removal should be granted in these circumstances. [7] 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, 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). [8] 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. [9] 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.

[10] 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; Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 atpara 67. III.

Analysis [11] The Applicants submit that there are several serious issues in this case: a. The Officer misapprehended the evidence by noting that the Applicants have known about the dismissal of their leave for judicialreview by the FC since June, when in fact the dismissal was not certified until July 25 and thereafter the Applicants received theFC decision; b. Applicants are often permitted to stay months and sometimes years after their judicial reviews are rejected. Without a definite datefor removal, the Applicants would have found it difficult to know if or when to make their arrangements; c.

The Officer’s conclusion that the Applicants had not given grounds for temporary removal was unreasonable given the temporarynature of the stay of removal requested, based in part on the minor son’s schooling as he is scheduled to start school in Ottawa onSeptember 3, 2023 and the school year in Nigeria starts on September 12, 2023; d. The Officer failed to consider the new risk due to the increase in military tension at the Niger/Nigeria border.

The Officer erred bystating no new evidence was submitted even though the Applicants submitted news articles indicating a concrete and new threat ofviolence in that region; and e.

The Officer overlooked the Applicants’ immense establishment in Canada and removing the Applicants now would jeopardizetheir H&C application entirely. [12] At the hearing, the Applicants emphasized that they were seeking a temporary stay to allow them more time to adjust to theirtransition in Nigeria, and that the Officer misapprehended the amount of notice that they had to prepare for the removal. [13] I am not persuaded by the Applicants’ arguments. [14] While I acknowledge the immigration system should not expect failed refugee claimants to be perpetually ready for removal, theRespondent submits, and I agree, that there is no material impact on the soundness of the Officer’s analysis when the Officer misstatedthat the Applicants learned of the negative FC decision in June as opposed to July.

The Applicants’ removal order became enforceableonce the FC decision was issued. The fact the Officer proceeded to enforce the removal order shortly after did not give rise to a seriousissue. [15] I also agree with the Respondent that the Officer carefully and reasonably considered the totality of the Applicants’ submissions andconcluded that the grounds advanced by the Applicants were insufficient to warrant a deferral. The Officer reasonably determined thatthe idea of deportation is not new, given that the Applicants received their conditional departure orders over five years ago.

The Officerreasonably noted their discretion to grant deferrals and provided comprehensive reasons why the hardships put forward by the Applicantswould not justify the Officer in exercising their limited discretion to defer removal. [16] The Officer also made no reviewable errors in assessing the Applicants’ establishment and the submission of an H&C application asgrounds to defer the removal. [17] Finally, I find the Officer considered the Applicants’ submissions respecting the new risk and reasonably noted counsel’sacknowledgment that this risk is not personal to the Applicants and as such, insufficient evidence had been presented to justify a deferralon this basis. [18] In sum, I find the Applicants have not raised any serious issue. [19] As I find that there is no serious issue arising from the Decision, the Applicants thus fail to meet the tripartite test for a stay ofremoval. [20] I also find the Applicants have not provided clear, convincing and non-speculative evidence to demonstrate that they will sufferirreparable harm.

While I am sympathetic to the Applicants’ circumstances, and I acknowledge the Applicants’ establishment in Canadaand the difficulties they may face upon their return to Nigeria, these circumstances do not justify the granting of the extraordinaryremedy they are seeking from this Court. [21] In light of my findings above, the balance of convenience favours the Respondent. ORDER in IMM-10937-23 THIS COURT ORDERS that the application for a stay of removal pending the determination of the Applicants’ application forjudicial review is dismissed. "Avvy Yao-Yao Go"

Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-10937-23 STYLE OF CAUSE: CATHERINE IMIEGHOME OLA, OLANREWAJU ADEGBOYEGA OLA, OLUWADARA JESSE-DANIEL OLA v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: HELD VIA VIDEOCONFERENCE DATE OF HEARING: September 1, 2023 ORDER AND reasons: GO J. DATED: September 1, 2023 APPEARANCES : Natalie Banka For The Applicants Meg Jones For The Respondent SOLICITORS OF RECORD : Natalie Banka Lewis & Associates Toronto, Ontario For The Applicants Attorney General of Canada Toronto, Ontario For The Respondent