2022 FC, 2022 FC 1693

Date: 20221208 Docket: IMM-11807-22 Citation: 2022 FC 1693 Toronto, Ontario, December 8, 2022 PRESENT: Madam Justice Go BETWEEN:ADEWALE ALEXENDER AKEJUApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent ORDER AND REASONS [1] Mr.

Adewale Alexender Akeju [Applicant] seeks a stay of his removal to Nigeria, scheduled for December 9, 2022, until the finaldetermination of his application for leave and for judicial review of a decision dated October 22, 2022, by a Senior Immigration Officer[Officer] denying the Applicant’s Pre-Removal Risk Assessment [PRRA] application [PRRA Decision]. [2] Having considered the material filed by the parties and submissions by counsel, I am dismissing the application for a stay. I. Context [3] The Applicant is a citizen of Nigeria. He arrived in Canada on August 31, 2013 and stayed until June 27, 2015.

The Applicantreturned to Canada on October 9, 2015 as a visitor. [4] On November 21, 2017, the Applicant made a claim for refugee protection.

The PRRA Decision summarized the allegations of theApplicant’s refugee claim and the determination made by the Refugee Protection Division [RPD] as follows: • The Applicant stated that he, his spouse and two of their three children resided in the USA on study permits and he was in Canada withtheir third child who was attending the University of Ottawa. • The Applicant stated that he feared returning to Nigeria due to his refusal, on May 25, 2013 to accept a nomination to be a successor tohis father in the Ogboni Fraternity, a pre-condition to him being anointed as the heir apparent to the throne of the royal house in Nigeria. • The Applicant also fears that if he accepted the nomination he would have to partake in various rituals in which the oracle would revealthat he is bisexual. • The Applicant alleged that as a result of his refusal he suffered a violent attack on June 14, 2013, his vehicle was trailed in July 2013and September 2015, he experienced an altercation in March 2016 and suffered an attack on March 24, 2016. • After much analysis, the RPD concluded that the Applicant was not a credible witness and that he was not bisexual. • Accordingly, the RPD denied the Applicant’s refugee claim on September 19, 2018. [5] The Applicant’s appeal of the RPD decision was denied by the Refugee Appeal Division on July 12, 2019.

The Applicant submitted aPRRA application on February 21, 2022. [6] Following the negative PRRA Decision, the Applicant was served with a Direction to Report on December 1, 2022. 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 (MTS) Ltd, (SCC), [1987] 1 SCR 110, 38 DLR (4th) 321 [Manitoba], RJR-MacDonald vCanada (Attorney General), (SCC), [1994] 1 SCR 311, 111 DLR (4th) 385 [RJR-MacDonald], and R v CanadianBroadcasting Corp, 2018 SCC 5, which is the test to be applied to stays of removal: Toth v Canada (Minister of Employment andImmigration) (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 Equustek

Solutions Inc, 2017 SCC 34 at para 1. III. Analysis A. Serious Issue [11] The Applicant raises several serious issues in the underlying application. At the hearing, he relied on only one issue, namely that theOfficer breached procedural fairness by not providing the Applicant with an oral hearing. In the written representations, the Applicantpoints to the narrative that he filed in support of this PRRA application, which outlined in detail the risks and dangers that he experiencedin Nigeria.

This narrative, the Applicant states, along with country conditions and exhibits, provided significant information regardingthe Applicant’s risk of persecution. The Applicant argues that the Officer did not provide any reasons to cast doubt on the truthfulness ofthe Applicant, yet determined that the evidence failed to establish any risk. The Applicant submits the Officer’s disbelieving of theApplicant was a credibility determination and thus an oral hearing was required. [12] I find no merit with this argument. The Applicant relied on the same narrative that he filed in support of his refugee claim.

TheApplicant’s claim has already been found by the RPD to lack credibility, a decision confirmed by the RAD. The Officer did not err infinding the Applicant has not provided sufficient evidence and was not making any credibility finding, when the Applicant sought to relyon the evidence that has been rejected by the RPD regarding the same allegations of risks. [13] I also consider the “new evidence” that the Applicant submitted which he argues the Officer ignored, namely the newspaper articlesabout violence and kidnapping in Nigeria.

I note however that the Applicant made no submission to the Officer regarding the relevanceof these articles to his PRRA application.

The Applicant did not explain how these general country conditions documents could help himovercome the negative credibility findings already attached to all aspects of his claim. [14] As the Respondent submits, and I agree, PRRA officers may weight the evidence before them and make findings regarding itsprobative value and sufficiency, without being required to hold an oral hearing: Gandhi v Canada (Minister of Citizenship andImmigration), 2020 FC 1132 at para 41; Aldarurah v Canada (Minister of Citizenship and Immigration), 2022 FC 1173 at para 33;Mudiyanselage v Canada (Minister of Citizenship and Immigration), 2018 FC 749, at para 31. [15] As the Court in Adekola v Canada (Minister of Citizenship and Immigration), 2021 FC 32 stated at para 33: [33] The Officer was not required to hold an oral hearing as his analysis did not turn on credibility, but rather rests on an insufficiency ofevidence to overcome the negative credibility concerns of the RPD (Ferguson v Canada (Citizenship and Immigration), 2008 FC 1067 atparas 25–27).

This Court has found that credible evidence can be assigned little weight and that a weighing of the evidence is notnecessarily considered a credibility finding, as is the case in this matter (Mudiyanselage v Canada (Citizenship and Immigration), 2018FC 749 at para 31). There is no basis to suggest that the Officer should have held a hearing regarding the Applicant’s credibility,particularly when no issues have been raised that would benefit from a hearing. [16] The same conclusion applies here.

In conclusion, I find the Officer made no error in deciding not to hold a hearing. [17] I will briefly address the remaining issues raised by the Applicant in the underlying application.

I find no merit with the Applicant’sargument that the Officer erred in relying on the RPD decision when analyzing the risks faced by the Applicant in Nigeria, since theApplicant was raising the same allegations and relying on the same narrative before the RPD in his PRRA application. [18] The Applicant submits that the Officer erred by failing to conduct a cumulative assessment of the danger and risks awaiting theApplicant if he returned to Nigeria.

Given my findings above, I conclude that the Officer committed no such error. [19] In conclusion, I find the Applicant has not established that there are serious issues to be tried. B. Irreparable Harm [20] 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 p. 135. 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 harms that are demonstrated in regard to any personsdirectly affected by the removal, and who will be remaining in Canada: Tesoro v Canada (Minister of Citizenship and Immigration),2005 FCA 148. [21] 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 (C.A.) at para 12. [22] In his written submissions, the Applicant submits that he will suffer irreparable harm if his removal from Canada is not stayed, as hewill suffer persecution based on his refusal to accept the nomination and his sexual orientation.

I reject this submission. [23] As the Respondent points out, it is well established that allegations of risk that have already been assessed and found not to existcannot serve as the basis for irreparable harm on a stay motion: Jackson v Canada (Public Safety and Emergency Preparedness), 2011FC 1381 at para 47, citing Singh v Canada (Minister of Citizenship and Immigration), 2005 FC 145 at para 14. [24] The Applicant simply has not provided evidence to support his claim that he “will end up dead if returned to Nigeria”.

[ 25 ] The Applicant further submits that potential mootness of the underlying judicial review application resulting from his removal is a relevant consideration for the irreparable harm analysis, citing Canada (Public Safety and Emergency Preparedness) v Shpati , 2011 FCA 286 at para 40 .

Given my findings on serious issues, I conclude that the Applicant has not established irreparable harm based on this argument either. [ 26 ] At the hearing, the Applicant raised a new argument, stating that family separation may also constitute irreparable harm, and in particular, the separation between the Applicant and his son, who is currently living in Canada.

I give this submission no weight, not only because, as the Respondent submits, the Applicant raised it for the first time at the hearing, but also because the Applicant simply has provided no evidence as to the harm, if any, that his removal would cause to his son. C. Balance of Convenience [ 27 ] In light of my findings above, the balance of convenience favours the Respondent. ORDER in IMM-11807-22 THIS COURT ORDERS that the application for a stay of removal pending the determination of the Applicant’s application for judicial review is dismissed.

"Avvy Yao-Yao Go" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-11807-22 STYLE OF CAUSE: ADEWALE ALEXENDER AKEJU v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD VIA VIDEOCONFERENCE DATE OF HEARING: December 8, 2022 ORDER AND reasons: GO J. DATED: December 8, 2022 APPEARANCES : Justin Heller For The Applicant Nadine Silverman For The Respondent SOLICITORS OF RECORD :

Justin Heller Lewis & Associates Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent