2022 FC, 2022 FC 1686

Date: 20221207 Docket: IMM-12153-22 Citation: 2022 FC 1686 Toronto, Ontario, December 7, 2022 PRESENT: Madam Justice Go BETWEEN: QING CHEN Applicant and MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent ORDER AND REASONS [ 1 ] Ms.

Qing Chen [Applicant] seeks a stay of removal to China, scheduled for December 7, 2022, until the final determination of her application for leave and for judicial review of a decision dated December 5, 2022 by an Inland Enforcement Officer [Officer] denying the Applicant’s request to defer the execution of the removal order [Decision]. [ 2 ] Having considered the material filed by the parties, and having heard the submissions of counsel for the parties, I am dismissing the Applicant’s motion for a stay of her removal. I. Context [ 3 ] The Applicant has a long and checkered immigration history.

The Applicant, a citizen of China, entered Canada in May 2002 and claimed refugee status as a Christian. Her claim was denied in January 2004. The Applicant submitted a second refugee claim under a false identity in July 2006. In August 2006, a fingerprint check revealed the Applicant’s false claim and a warrant was issued for her arrest. The Applicant’s second refugee claim was denied in April 2009, and leave for judicial review was denied.

The warrant was executed in February 2010, and the Applicant was released on a bond. [ 4 ] The Applicant submitted an application for Pre-Removal Risk Assessment [PRRA] in April 2011. This was followed by an application for permanent residence on humanitarian and compassionate grounds [H&C application] in May 2011. In November 2011, both the PRRA and the H&C applications were denied. [ 5 ] The Applicant became an ordained Minister for the Living Stone Assembly on September 27, 2020. [ 6 ] The Applicant submitted a second H&C application in May 2021, which was denied in October of the same year.

In December 2021, the Applicant submitted a third H&C application. A decision is still pending. [ 7 ] The Applicant was directed to report for removal for the first time on April 10, 2022. Her request for a deferral for removal was denied in a decision dated April 7, 2022 by a deferral officer, but the removal was ultimately cancelled on April 8, 2022. [ 8 ] On November 8, 2022, the Applicant was directed to report for removal on December 7, 2022. The Applicant requested a deferral for her removal on December 1, 2022.

The Applicant filed her stay motion on December 2, 2022 before the Decision was issued. [ 9 ] Relying on her previous request for deferral in April 2022 and on new evidence, the Applicant requested for deferral on two bases:

a) her third H&C application submitted in December 2021, and

b) the recent spike in COVID cases throughout China and especially Shanghai, where she would land. The Applicant submitted that the harm she faces is at least as serious as when she was previously scheduled for removal. [ 10 ] Before the Decision was issued, the Applicant stated in her written representations in support of her stay motion that she asserted two grounds for deferral request:

a) The Applicant has not had a risk assessment with respect to harm she might face in China for some eleven or twelve years. A deferral officer has the jurisdiction to defer removal until such time as a full analysis of her allegations of risk can be performed by an officer, such as an officer assigned the task of undertaking analysis of a humanitarian application; and

b) At the present time, China is experiencing an unprecedented upsurge of COVID cases. The Applicant is unvaccinated and indicated that she is experiencing respiratory and other symptoms of ill health since she attended CBSA premises on April 3, 2022. The Applicant cited safety concerns for herself and other passengers on the airplane from Toronto to Shanghai. [ 11 ] After the Decision was issued, the Applicant filed further submissions asking that her removal be stayed. The Applicant suggests that her situation be re-evaluated within 60 to 90 days, or such other period of time as is considered appropriate, in order to determine whether:

a) China’s level of COVID infection and ability to treat infected persons have improved; and

b) the Applicant’s H&C application has progressed to the issuance of a decision, and whether removal at that time should proceed. II.

Issues and Legal Test for Obtaining a Stay [12] The only issue is whether a stay of removal should be granted in these circumstances. [13] In order to obtain a stay, the Applicant 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). [14] 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. [15] 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 [16] 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 Applicant needs 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. [17] The Applicant submits that she falls squarely within the scenario contemplated by Wang and Prasad v Canada (Minister ofCitizenship and Immigration) 2003 FCT 614 , [2003] F.C.J.

No. 805 (TD), which stated at para 32: “a failure to considercompelling individual circumstances, such as personal safety or health issues, may constitute an unlawful fetter of the officer’sdiscretion” to defer a removal. [18] I will address the Applicant’s submission based on the two grounds of her deferral request. Applicant’s Pending H&C Decision [19] I do not find there is a serious issue to be tried arising from the Applicant’s pending H&C decision. I say this for the followingreasons. [20] First, I note there is a lack of information about her Applicant’s third H&C application.

The Applicant stated in a statutorydeclaration dated April 7, 2022 that her H&C application “was initially rejected for something having to do with the requirements forbiometrics, and then it was resubmitted”. The Applicant did not provide a copy of her third H&C application, and provided noinformation as to the basis of her H&C application. [21] Counsel for the Applicant stated in their April 2022 request for deferral that the Applicant has well-founded fear based on heractivity as a Christian practitioner and proselytizer, and her leadership in the Chinese Christian community.

Counsel further stated asfollows: It is contemplated that our risk submission will be forwarded to the Vancouver BRA-BRO office for their consideration. Weare advised that the H&C application is already supported by evidence of Ms. Chen’s involvement in Christianity asevidence of her establishment in Canada over these past twenty years. I gather that an assertion of risk of harm is included inthe current submission.

However, we will be forwarding a further submission which will clearly articulate the risk of thevery serious harm that both the RAD and RPD decisions attached hereto, contemplate. [22] I acknowledge that counsel, who did not represent the Applicant in her H&C application, may have difficulties obtaining theApplicant’s H&C file. However, there is no evidence before me whether counsel did forward further submissions in support of theApplicant’s H&C application.

Further, as the Respondent rightly points out, the Applicant could have initiated a second PRRAapplication, but failed to do so. [23] I agree with the Respondent that the Applicant led no new evidence of risk warranting a fresh risk assessment in relation to herChristian activity. The only possible “new” evidence is that the Applicant was ordained as a pastor of her church in 2020, but theApplicant submitted no evidence that this has come to the attention of the Chinese authorities.

I also note that the Applicant filed hersecond H&C application after she was ordained. [24] Viewed in this context, I see no serious issue to be tried when the Officer determined the Applicant’s assertion of risk as a Christiandoes not warrant deferral.

Applicant’s Health and Safety Concerns due to COVID 19 Cases and Measures in China [25] In support of her deferral request, the Applicant submitted recent articles from the New York Times and The Economist suggestingthat COVID cases have reached an all-time high in China, and outlining China’s struggle between mass lockdowns and mass infection.The Applicant also submitted a recent letter from an Ontario lawyer based in Beijing stating that China is experiencing its most seriousCOVID outbreak since the beginning of the pandemic.

The lawyer further stated that because the Applicant has been out of China forover 20 years, her national identification card would not be valid, and she would have difficulty accessing health care via the “health kit”system as well as accessing travel arrangements to return to her hometown. Another letter from an Ontario paralegal who had previouslypractised law in China explained the code based system for accessing health care and tracking COVID cases in China, and the difficultiesthat the Applicant would face [paralegal’s letter]. Finally, the Applicant submitted a letter from Dr.

Daniel Wong, a Toronto-basedphysician who has advised all of his patients not to go to China as “anyone entering the country now is at serious risk” of COVIDinfection. [26] The Applicant submits that the Decision ignores and/or trivializes this evidence. [27] I am not persuaded by the Applicant’s submission. [28] While it is true that the Officer did not expressly mention any of the above evidence, the Officer did adopt the extensive reasonsprovided by the deferral officer in April 2022. The Officer also provided additional analyses of their own.

The Decision clearly statedthat the Officer has considered the country conditions presented by counsel, as well as the letter from Dr.

Wong before noting that theCBSA continues to remove citizens to China and that China is not included in the list of countries where removal has been suspended. [29] I also disagree with the Applicant that the Decision focused unduly on her affidavit given its acknowledgment of the countryconditions evidence presented by the Applicant. [30] Nor do I find unreasonable the Officer noting that the Applicant has ample time and had the ability to plan all of the detailssurrounding her life in China since April 2022, and that her family including her two brothers “will help her to attenuate the challengesassociated with her repatriation”. [31] The Decision is in line with the Court’s jurisprudence that removal can take place, including to China, during the current pandemic:Zheng v Canada (Citizenship and Immigration), (FC); Gill v Canada (Minister of Public Safety and EmergencyPreparedness), 2020 FC 1075 [Gill]; Chitti v Canada (Public Safety and Emergency Preparedness), (FC); Cao vCanada (Public Safety and Emergency Preparedness), (FC). [32] I agree that deferral officers should assess the risks to the applicant of contracting COVID: Gill at para 30.

In this case, the Officerdealt with the Applicant’s submissions about her risk of contracting COVID in China, particularly due to her unvaccinated status,thoroughly. [33] As the Respondent notes, the Applicant presented no evidence that she suffers from any underlying medical conditions that wouldeither put her at heightened risk of contracting COVID or exempting her from vaccination. I also agree with the Respondent that theApplicant’s decision not to be vaccinated – even though effective vaccination is freely available in Canada - should not obstruct herremoval.

With respect to the concerns about the risks on board the plane, the Decision confirmed that masks would be available for theApplicant to protect herself and her fellow passengers. [34] In light of the evidence, the Decision was defensible as it relates to the Applicant’s risk of contracting COVID. [35] With respect to the Applicant’s ability to access health care, the paralegal’s letter noted the policy in China requiring individuals todownload the health code app to their mobile phones and register for the COVID tracking system.

The paralegal opined that without aChinese national identification, the Applicant would not get a mobile phone because identity authentication is required to validate themobile phone number. [36] The Officer noted the paralegal’s letter which was submitted after the Decision was issued, and maintained the refusal to defer. [37] As the Respondent submits, the Applicant is now in possession of a valid passport that establishes her identity as a Chinese citizen.Besides, the Applicant has not led any evidence that outdated identification documents would prevent her from obtaining medicaltreatment in China. [38] I appreciate the challenge facing the Applicant in mustering sufficient evidence in the short time frame to support her deferralrequest, and I am sympathetic to counsel’s submission that the Respondent is often in a better position to obtain the relevant evidence.However, the legal burden does fall on the Applicant to prove her case.

Moreover, the Applicant was aware in April 2022 that herremoval would be effected. While there has been some recent changes in the Chinese Government’s zero COVID strategy, the Applicanthas not presented any evidence to suggest that the use of the mobile app is part of the latest changes. [39] As such, I find no serious issue with respect to this aspect of the Decision. Should the Applicant be subject to any quarantine, theApplicant presented no evidence that the quarantine period would be different from any other Chinese citizen returning to China. B.

Irreparable Harm [40] 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.

[41] 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. [42] There is considerable overlap between the evidence and arguments with respect to serious issues and those relating to irreparableharm. [43] The Applicant submits that she will suffer irreparable harm if her removal from Canada is not stayed as she faces a serious risk toher health, as well as the risk to life and personal safety should she be removed to China. [44] The Applicant argues the unreported decision of Justice Russell in case of Ana Cristina Caneco Maranhao v Minister of Citizenshipand Immigration (IMM-6185-11) implies there is a duty on the Respondent to provide for the Applicant’s health and safety while intransit, and a serious issue exists as to whether that duty has been discharged.

With respect, the situation of the Applicant can bedistinguished as the risk allegedly faced by the Applicant is speculative, and is based on the general conditions in China, not on anypersonalized health issues facing the Applicant. [45] Given that the Applicant provided no evidence suggesting that she is at a heightened risk of contracting COVID, I find theApplicant fails to meet the second prong of the tripartite test. The Applicant simply has not provided sufficient evidence to support herstated risks. C.

Balance of Convenience [46] In light of my findings above, the balance of convenience favours the Respondent. ORDER in IMM-12153-22 THIS COURT ORDERS that the application for a stay of removal pending the determination of the Applicant’s application forjudicial review is dismissed. "Avvy Yao-Yao Go" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-12153-22 STYLE OF CAUSE: QING CHEN v MINISTER OF PUBLIC SAFETY, AND EMERGENCYPREPAREDNESS PLACE OF HEARING: HELD VIA VIDEOCONFERENCE DATE OF HEARING: December 7, 2022 ORDER AND REASONS: GO J. DATED: December 7, 2022 APPEARANCES: Patricia Ann Ritter For The Applicant

Nicole Rahaman For The Respondent SOLICITORS OF RECORD : Patricia Ann Ritter Czuma, Ritter Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent