2023 FC, 2023 FC 1260

Date: 20230919 Docket: IMM-11210-23 Citation: 2023 FC 1260 Toronto, Ontario, September 19, 2023 PRESENT: Madam Justice Go BETWEEN:SUZAN KAMIL ELYAS GRABAWEMARIA ILIEApplicantsandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] Ms. Suzan Kamil Elyas Grabawe and her mother, Maria Ilie [together the “Applicants”], seek a stay of removal to Romaniascheduled for September 20, 2023.

The motion for stay is brought as interlocutory relief to an application for leave and for judicialreview of a decision dated September 15, 2023 by an Inland Enforcement Officer [Officer] denying the Applicants’ request to defer theexecution 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 Romania. They came to Canada on October 20, 2017 between ports of entry in Quebec and made arefugee claim.

Their claim was dismissed by the Refugee Protection Division [RPD] on September 26, 2018. Subsequent appeal to theRefugee Appeal Division was denied on July 2, 2019 and leave for judicial review to the Federal Court was dismissed on October 18,2019. The Applicants were provided an opportunity to submit a Pre-Removal Risk Assessment on April 6, 2021 but they did not do so. [4] The Canada Border Services Agency first initiated removal proceedings against the Applicants in December 2019. After severalcancellations and rescheduling of their removal due to Ms. Ilie’s medical issues and issues with Ms.

Grabawe’s travel documents,respectively, the Applicants were issued a Direction to Report for Removal on September 1, 2023. The Applicants submitted a request todefer removal on September 13, 2023, asking the removal be deferred until April 2025 based on:

a) Ms. Ilie’s health conditions,

b) theApplicants’ forthcoming permanent residence application on humanitarian and compassionate grounds [H&C application], and c)breaches of the Applicants’ procedural fairness rights which occurred during the course of their previous immigration applications. [5] Specifically, the Applicants claim that Ms. Ilie suffers from multiple medical conditions including heart failure and asthma. TheApplicants further allege that they retained Victoria Bruyn as counsel to help them file an H&C application in October 2021 and theyonly learned in August 2023 that Bruyn never submitted their H&C application. 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 and R v Canadian Broadcasting Corp, 2018 SCC 5, which is the test to be appliedto 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 filed their stay motion before the Decision was issued. Based on a deemed deferral decision, the Applicants submit that the higher threshold is met in this case due to

a) the risks faced by Ms. Ilie by way of prospective removal, and

b) the breach of procedural fairness rights since prior counsel Bruyn never filed their H&C application. [ 12 ] At the hearing, the Applicants additionally submitted that the Officer committed three reviewable errors. [ 13 ] First, the Officer erred by finding insufficient evidence has been received showing that an H&C application has been completed and submitted.

As the Applicants never claim to have submitted an H&C application, they argue this finding suggests the Officer was not reviewing their case, and was making a boilerplate decision. [ 14 ] Second, the Officer stated no submissions have been received explaining the broken communications between the Applicants and Bruyn. In so finding, the Applicants submit the Officer did not seem to understand the nature of the request, as they have clearly outlined the series of events that have transpired.

Even though it was not explicitly stated that there was no communication between the Applicants and their prior counsel between 2021 and 2023, the Applicants made clear that it was only in August 2023 that they realized no H&C application has been submitted. [ 15 ] Finally, the Officer unreasonably found no submissions have been made showing that medical care in Romania is unavailable, unobtainable or inadequate in meeting the medical needs of Ms.

Ilie, even though the Applicants submitted evidence to the contrary. [ 16 ] I am not persuaded by the Applicants’ arguments. [ 17 ] With respect to the Officer’s comment about the H&C application, I agree with the Respondent that the Officer was merely stating a fact that there is no outstanding H&C.

I note that the Officer did specifically address the Applicants’ alleged breach of procedural fairness, which suggests that the Officer was aware of the grounds of deferral and responded to the grounds accordingly. [ 18 ] I also find the Officer made no error in stating no submissions have been made explaining the communication between the Applicants and former counsel, in view of the limited evidence provided by the Applicants.

Further, the Officer did not err in pointing out that the Applicants are ultimately responsible for their own immigration matters. [ 19 ] As to the Officer’s finding of insufficient evidence with regard to available treatment in Romania, the Applicants submitted articles with respect to issues facing seniors in institutional care setting. The Applicants submitted at the hearing that it would likely be a short amount of time before Ms. Ilie may need such care. I find this argument lacks merit, as it is entirely based on speculation.

But more to point, the argument confirms that the evidence before the Officer did not speak to the availability of medical treatment, or lack thereof, and as such, there is no basis to suggest the Officer erred. [ 20 ] The Applicants further noted at the hearing that in its decision, the RPD confirmed that Ms. Ilie would not receive adequate health care in Romania, but found that the risk she faces falls under the exception of subpara 97(1)(b)(iv) of the Immigration and Refugee Protection Act, SC 2001, c 27 . [ 21 ] I note that the Applicants did not include the RPD decision in their motion record.

Further, the Applicants did not rely on the 6-year- old RPD decision when they sought deferral based on Ms. Ilie’ current medical conditions and current country conditions in Romania. The Officer made no reviewable error by not referring to this particular finding made by the RPD. [ 22 ] While I am somewhat sympathetic to the Applicants’ situation, I find the Applicants fail to raise any arguable issue with respect to the Decision denying their request to defer their removal for 18 months. The Officer assessed all three grounds for deferral raised by the Applicants.

Based on the evidence and submissions before them, the Officer reasonably decided not to exercise their limited discretion to defer the removal. [ 23 ] 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 of removal. [ 24 ] In any event, I also find the Applicants fail to demonstrate that they will suffer irreparable harm. While I note that the Applicants claim they will suffer irreparable harm due to Ms.

Ilie’s health conditions, I agree with the Respondent that the Applicants have failed to provide sufficient, non-speculative evidence to demonstrate the possible risk of harm to Ms. Ilie caused by their removal. [ 25 ] I note that a Medical Requirements for Removal [MRR] Assessment was conducted on Ms. Ilie that deemed her medically fit for air travel to be repatriated to her country of origin. The MRR noted that Ms. Ilie’s current medical conditions indicate that she is stable regarding heart failure symptoms, and she denies worsening chest pain or shortness of breath.

The MRR further noted there is no medical information pointing to an acute clinical deterioration of Ms. Ilie’s baseline health status, and that clinical notes document unremarkable physical examination and normal cardiac work-up. The MRR concluded that the documentation reviewed does not indicate Ms. Ilie has developed any objective clinically sequelae that would preclude her from air travel. [ 26 ] Finally, as the Respondent notes, and I agree, being a citizen of Romania, Ms. Ilie enjoys full rights of mobility within the European Union.

She may be able to travel to other member countries for medical treatment, if such treatment is unavailable in Romania. [ 27 ] In light of my findings above, the balance of convenience favours the Respondent. ORDER in IMM-11210-23

THIS COURT ORDERS that the application for a stay of removal pending the determination of the Applicants’ application for judicial review is dismissed. "Avvy Yao-Yao Go" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-11210-23 STYLE OF CAUSE: SUZAN KAMIL ELYAS GRABAWE, MARIA ILIE v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: HELD VIA VIDEOCONFERENCE DATE OF HEARING: September 19, 2023 ORDER AND reasons: GO J.

DATED: September 19, 2023 APPEARANCES : Kareem Ibrahim For The Applicants Simarroop Dhillon For The Respondent SOLICITORS OF RECORD : Kareem Ibrahim Kareem Ibrahim Law Toronto, Ontario For The Applicants Attorney General of Canada Toronto, Ontario For The Respondent