2022 FC, 2022 FC 1684

Date: 20221206 Dockets: IMM-11822-22 IMM-4427-22 Citation: 2022 FC 1684 Toronto, Ontario, December 6, 2022 PRESENT: Madam Justice Go Docket: IMM-11822-22 BETWEEN: ENERIA LUCIANA PEREZ LOPEZ CARLOS ALBERTO DE LA HOZ PEREZ IVAN FABIAN DE LA HOZ PEREZ Applicants and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent Docket: IMM-4427-22 AND BETWEEN: ENERIA LUCIANA PEREZ LOPEZ CARLOS ALBERTO DE LA HOZ PEREZ IVAN FABIAN DE LA HOZ PEREZ Applicants and MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent ORDER AND REASONS [ 1 ] Ms. Eneria Luciana Perez Lopez [Ms.

Lopez] and her two sons, Carlos Alberto De La Hoz Perez and Ivan Fabian De La Hoz Perez [together, the “Applicants”] seek a stay of removal to Colombia, scheduled for December 7, 2022, until the final determination of the applications for leave and for judicial review of either one of the following two decisions: (

i) a decision dated April 22, 2022 by the Refugee Protection Division [RPD] finding that the Applicants are not Convention Refugees and are not persons in need of protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act , SC 2001, c 27 [ IRPA ] [RPD Decision], and/or (ii) a decision of an Inland Enforcement Officer at the Canada Border Services Agency [Officer] dated November 23, 2022 refusing the Applicants’ request to defer their removal from Canada [Deferral Decision]. [ 2 ] Having considered the material filed by the parties, and having heard the submissions of counsel for the parties, I am granting the Applicants’ motions for a stay of their removal.

I. Context [ 3 ] The Applicants are mother (Ms. Lopez) and sons, who are citizens of Colombia. Their claims for refugee protection were joined with the claim of another son of Ms. Lopez, Octavio Andres De La Hoz [Octavio Andres], who was the Principal Claimant before the RPD. The Applicants and Octavio Andres all lived together in Barranquilla before they fled to Canada. [ 4 ] Octavio Andres studied journalism in a university in Colombia. Prior to completing his studies, Octavio Andres worked with the El Heraldo newspaper on a job placement.

On January 3, 2020, Octavio Andres was assigned to report on complaints about unpaid wages against a local politician, Felix Fontalvo [Fontalvo] in the town of Palmar de Varela, located about an hour away from Barranquilla. Octavio Andres was unable to obtain information from Fontalvo before publishing his

article about the complaints [Article] both online and in print on January 4, 2020. [ 5 ] On the day the

Article was published, Octavio Andres received a phone call threatening him that Fontalvo had read the Article, was very angry, and demanded an immediate rectification of what Octavio Andres had written or he and his family would be harmed. [ 6 ] Following an interview with Fontalvo, Octavio Andres did modify the online version of the

Article but not the version in print. Over time, other newspapers picked up on the

Article and made further investigations, exposing other labour problems involving Fontalvo’s business. [ 7 ] Between October 2020 and March 12, 2021, Octavio Andres was threatened by men whom he believed to have been sent by Fontalvo to harm him on three occasions. All of these incidents happened close to the home he shared with the Applicants. Believing that his and his family members’ lives were in danger, Octavio Andres and the Applicants decided to leave Colombia and seek protection in Canada where they have a family member.

[8] The RPD member found the Applicants and Octavio Andres to be credible and accepted that Fontalvo was behind the threats towardsOctavio Andres. The RPD found that the Applicants do not have a well-founded fear of persecution nor would they have a future risk ofharms should they return to Colombia. Among other things, the RPD found that the phone call on January 4, 2020 was an unspecificthreat to harm the family and there were no more threats made against the family over two years.

The RPD also noted that there is onlyone reference in the National Documentation Package [NDP] about a well-known journalist who was targeted with his family after hepublished certain articles and they had to leave their home but did not leave Colombia. [9] On November 10, 2022, the Applicants received a Direction to Report for Removal set for December 7, 2022 at 7:50 p.m. [10] The Applicants submitted a request for deferral of removal on November 17, 2022, and received the Deferral Decision onNovember 23, 2022. II.

Issues and Legal Test for Obtaining a Stay [11] The only issue is whether a stay of removal should be granted in these circumstances. [12] 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 [Manitoba], RJR-MacDonald v Canada(Attorney General), (SCC), [1994] 1 SCR 311 [RJR-MacDonald], and R v Canadian Broadcasting Corp, 2018 SCC 5,which is the 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). [13] 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. [14] 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. III. Analysis A.

Serious Issue IMM-4427-22 RPD Decision [15] The Applicants submitted in their Memorandum of Argument for the underlying application that, in finding that the agent ofpersecution would not be interested in harming the Applicants, the RPD erred by failing to take into account country conditionsdocuments, in particular item 11.2 of the NDP at para 362 which reported on family members of journalists in Colombia being killed. [16] The Applicants did not include the relevant NDP in their motion record or their application record, even though they are relying onit. [17] As part of their motion record, the Respondent helpfully includes an excerpt from the Inter-American Commission on HumanRights Annual Report of the Officer of the Special Rapporteur for Freedom of Expression dated March 30, 2021[Report], being item11.2 of the NDP for Colombia dated August 31, 2021.

The Report documented a worrying pattern of death threats against journalists dueto their work in Colombia, which in some cases forced them to leave their cities.

The Report documented various acts of violence againstjournalists including murders. [18] The Applicant submits, and I agree, that the Report confirms threats are made against family members of journalists, and not justthe journalists. [19] While the Report made clear that the main targets of the violence, surveillance and profiling are the journalists themselves, itreferred to incidents where family members of the journalists were made subject to threats, surveillance and profiling: see paras 384, 389and 406.

The Report also referred to incidents where the threats were made against journalists in their home: paras 387 and 388. Finally,the Report expressed concern about the lack of progress with respect to judicial investigations of these illegal acts as well as prosecutionof the crimes committed against journalists and other human rights defenders. [20] I acknowledge the Respondent’s submission that the Applicants’ experiences are different from that of Octavio Andres, and that theonly threat that specifically targeted the Applicants was made in January 2020.

However, the RPD Decision finding that the Applicantsdo not face forward-looking risks was based at least in part on its assessment of the country conditions report. At para 27, the RPDstated: The [Applicants] stated that it is common for relatives of journalists in similar situations to be targeted. However, they wereunable to provide any specific or detailed evidnece of any family members of journalists being harmed. I reviewed thecountry documents and found that these contained little information specifically about harms faced by family members ofjournalists.

There was one reference in NPD to a well-known human rights journalists who was targeted with his family afterhe published articles on law and order, judicial matters and drug trafficking. The journalist and his family had to leave theirplace of residence due to the threats. The

article does not state that they had to leave the country.

[21] In my view, there are two errors with respect to the above noted finding. First, the RPD’s conclusion that the country conditiondocuments contained little information about harms targeting family members of journalists is contradicted by the information containedin the Report.

Secondly, even if the family members of journalists are not forced to leave the country, harm may still be established,although the question could be raised as to whether there is an Internal Flight Alternative. [22] In any event, at this stage, the Applicants need only to demonstrate that they have a fairly arguable case under the first prong. Inlight of the information before me, I find that the Applicants have met that burden and that there is a serious issue to be tried with respectto the RPD Decision.

IMM-11822-22 Deferral Decision [23] 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 FCA81 at para 67. [24] The Applicants argue that the Officer made several reviewable errors in the Deferral Decision.

I need not address all the argumentsmade by the Applicant, nor do I find all arguments equally persuasive. [25] I find that there is a serious issue to be tried with respect to the Officer’s finding that the Applicants will not face any risk of harmupon return to Colombia. [26] The Deferral Decision stated: Submissions made to this office include media reports commenting on the safety of journalists working in Colombia and thethreats they receive from various groups including politicians.

I note, Eneria Luciana Perez Lopez, Carlos Alberto De La Hoz Perez and Ivan Fabian De La Hoz Perez are not journalistsby profession nor have they received any direct or indirect threats that may jeopardize their safety. [27] The Applicants submit that not being journalists does not shield them from harm by Fontalvo, a powerful man capable of harmingthe Applicants because of their relationship with Octavio Andres.

The Applicants further submit that evidence showing that familymembers of journalists in Colombia are attacked was submitted with the deferral request, but was not taken into consideration by theOfficer, thereby leading to a reviewable error. [28] I note that in their deferral request, the Applicants submitted to the Officer that they believe they still face continued risk ofpersecution as family members of Octavio Andres. The Applicants also submitted several articles as part of their deferral request; two ofthese articles suggest that family members of journalists are being threatened in Colombia.

In one, the journalist A.E. received threats onher cell phone making it clear that the criminals knew her daily routine and that of her family members, and she feared what wouldhappen to her and her family. In the second article, another journalist A.P. was forced to go into exile after receiving a text messagethreatening him and his family with death, and was unable to seek protection from the authorities. [29] The Officer made no mention of either of these articles when they found that the Applicants would not face risk because “they arenot journalists by profession”.

While it would have been open to the Officer to suggest that the articles submitted were insufficient tosupport the Applicants’ allegations of risk, the Officer’s failure to refer to these articles would suggest that the Officer had ignored themaltogether, which constitutes a serious issue to be tried. [30] I acknowledge the Respondent’s comment about the Applicants’ failure to include the Deferral Decision in the Motion Record,which was included by the Applicants only in the underlying application record for leave for judicial review of the Deferral Decision.

Ialso share the Respondent’s concern that the Applicants waited until December 1, 2022 to file the stay material even though theyreceived the Deferral Decision on November 23, 2022, without offering any reason for the delay.

Such deficiencies do not reflect wellon the Applicants when they are asking the Court to exercise its discretionary power to hear their plea to stay in Canada on an urgentbasis. [31] I disagree however, with the Respondent that the Applicants’ argument with respect to the alleged defects in the Deferral Decision ismade without any reference to the Officer’s reasons or findings, particularly with respect to the Officer’s risks assessment. [32] The Applicants’ deferral request was based in part on the allegation that they would face risks as family members of a journalist.The Applicants did provide some, albeit limited, objective evidence before the Officer in support of their position in this regard.

TheOfficer simply ignored the evidence. As such, I find that the first branch of the tripartite test is satisfied on this error alone. B. Irreparable Harm [33] 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 para 64. 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 harm that is demonstrated in regard to any persons directlyaffected by the removal, and who will be remaining in Canada: see Tesoro v Canada (Minister of Citizenship and Immigration), 2005FCA 148 at para 28. [34] 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.

[35] Irreparable harm may arise from a risk to life, liberty, or safety that the 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 (CA); Hernandez v Canada (Solicitor General), [1993] FCJNo 950 (TD); Membreno-Garcia v Canada (Minister of Employment and Immigration), (FC), [1992] 3 FC 306 (TD);Suresh v R, (ON SC), [1998] OJ No 296, 49 CRR (2d) 131. [36] There is considerable overlap between the evidence and arguments with respect to serious issues and those relating to irreparableharm.

Having found that the Applicants have established a serious issue to be tried in view of the Officer’s, as well as the RPD’s flawedassessment of the risks they would face in Colombia, I find that the Applicants have also established that they would face irreparableharm in Colombia that is not compensable in damages in view of the evidence. [37] While, as the Respondent rightly points out, the RPD found the threat against the Applicants to be “unspecific”, this does not meanthat the risk in question is therefore speculative.

On the contrary, the RPD did find that threat had been made against the Applicants. [38] In light of the objective evidence with regard to the risks that family members of journalists face in Colombia, and the specific threatthat the Applicants have received in their home country, I am satisfied that irreparable harm has been established. C.

Balance of Convenience [39] 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 at paras 34, 38. [40] While I acknowledge the public interest in ensuring removals are carried out as quickly as possible, in a case like this, the harm tothe Applicants in effecting the removal is far greater than the harm caused by delaying the removal.

Considering that the Applicants donot have any criminal record in Canada, nor any negative immigration history, and considering the irreparable harm that may be causedby the removal, the balance of convenience favours the Applicants. [41] In light of all of the above, I therefore grant the stay motion pending a final determination of both the RPD Decision and theDeferral Decision.

ORDER in IMM-11822-22 & IMM-4427-22 THIS COURT ORDERS that the Applicants’ motions are granted and their removal is stayed pending the determination of theApplicants’ applications for leave and, if leave is granted, pending the determination of their applications for judicial review. “Avvy Yao-Yao Go” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-11822-22 STYLE OF CAUSE: ENERIA LUCIANA PEREZ LOPEZ, CARLOS ALBERTO DE LA HOZ PEREZ,IVAN FABIAN DE LA HOZ PEREZ v THE MINISTER OF PUBLIC SAFETYAND EMERGENCY PREPAREDNESS AND DOCKET: IMM-4427-22 STYLE OF CAUSE: ENERIA LUCIANA PEREZ LOPEZ, CARLOS ALBERTO DE LA HOZ PEREZ,IVAN FABIAN DE LA HOZ PEREZ v MINISTER OF CITIZENSHIP ANDIMMIGRATION PLACE OF HEARING: HELD VIA VIDEOCONFERENCE DATE OF HEARING: December 6, 2022 ORDER AND reasons: GO J.

DATED: December 6, 2022 APPEARANCES : Vivian Owah For The Applicant Brendan Stock For The Respondent SOLICITORS OF RECORD : Vivian Owah Vasida Law Office London, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent