DINH DUNG NGUYEN THI QUYNH MAI TRAN Applicants v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, 2023 FC 815

Date: 20230608 Docket: IMM-12176-22 Citation: 2023 FC 815 Ottawa, Ontario, June 8, 2023 PRESENT: The Honourable Mr. Justice Ahmed BETWEEN:DINH DUNG NGUYEN THI QUYNH MAI TRANApplicantsandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS I.

Overview [1] The Applicants bring a motion for a stay of their removal from Canada, scheduled to take place on June 11, 2023. [2] The Applicants request that this Court order a stay of their removal to Vietnam until the determination of an underlying applicationfor leave and judicial review of the negative decision by the Refugee Protection Division ("“RPD”") dated November 16, 2022. [3] For the reasons that follow, this motion is dismissed. I find that the Applicants do not meet the tri-partite test required for a stay ofremoval. II.

Facts and Underlying Decision [4] Dinh Dung Nguyen (the "“Principal Applicant”") is a 24-year-old citizen of Vietnam. He was engaged to and later became commonlaw partners with Thi Quynh Mai Tran (the "“Associate Applicant”"). The two have a child together. [5] On November 24, 2017, the Associate Applicant was issued a study permit valid until July 31, 2020. On December 15, 2017, theAssociate Applicant entered Canada on a study permit. On March 17, 2018, the Principal Applicant was also issued a study permit, validuntil March 30, 2019.

The Principal Applicant entered Canada on a study permit on March 27, 2018. [6] The Associate Applicant applied to extend her study permit on or around April 24, 2020. Immigration, Refugees and CitizenshipCanada ("“IRCC”") refused this extension application on July 10, 2020. The Associate Applicant submitted another extensionapplication on July 20, 2020, which was approved on July 23, 2020, extending the validity of her study permit until July 31, 2023. [7] The Applicants made a claim for refugee protection on November 5, 2021.

The Applicants claimed that they face a seriouspossibility of persecution in Vietnam at the hands of the Vietnamese government. The core allegation in the claim was that in October2017, the Principal Applicant contacted activists in Vietnam through Facebook to organize protests against the Vietnamese CommunistParty.

The Applicants claimed that government authorities learned of the plan, at least five of the activists were jailed; the PrincipalApplicant deleted his Facebook account, and lived in hiding in Vietnam from November 2017 to March 2018. [8] On March 10, 2022, the Applicants were issued work permits valid until March 10, 2023. [9] In a decision dated November 16, 2022, the RPD found that the Applicants’ refugee claim had no credible basis pursuant tosubsection 107(2) of Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”).

The Applicants filed an application for leave andjudicial review of the negative RPD decision on December 1, 2022. [10] The Principal Applicant’s work permit was extended on May 24, 2023, valid until May 24, 2024. The decision on the AssociateApplicant’s application to extend her work permit is still pending. [11] The Applicants were served with a Direction to Report for removal on May 16, 2023, scheduled for June 11, 2023. III.

Analysis [12] The tripartite test for the granting of a stay is well established: Toth v Canada (Minister of Employment and Immigration) (1988), (FCA), 86 NR 302 (FCA) ("“Toth”"); Manitoba (A.G.) v Metropolitan Stores Ltd., (SCC), [1987] 1SCR 110 ("“Metropolitan Stores Ltd”"); RJR-MacDonald Inc. v Canada (Attorney General), (SCC), [1994] 1 SCR 311("“RJR-MacDonald”"); R v Canadian Broadcasting Corp, 2018 SCC 5 , [2018] 1 SCR 196.

[13] The Toth test is conjunctive, in that granting a stay of removal requires the applicant to establish: (

i) a serious issue raised by theunderlying application for judicial review; (ii) irreparable harm that would result from removal; and (iii) the balance of conveniencefavouring granting the stay. A. Serious Issue [14] In RJR-MacDonald, the Supreme Court of Canada established that the first stage of the test should be determined on an "“extremelylimited review of the case on the merits”" (RJR-MacDonald at 314).

The standard of review of an enforcement officer’s decision is thatof reasonableness (Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 , [2010] 2 FCR 311at para 67). [15] The Applicants submit that the underlying application raises serious issues about the reasonableness of the RPD’s finding that theirrefugee claim has no credible basis.

Specifically, the Applicants submit that the RPD failed to properly apply to the relevant test for a nocredible basis finding under subsection 107(2) of IRPA, and drew erroneous credibility findings about the Applicants’ claim andevidence. [16] The Respondent submits that there is no serious issue because the RPD reasonably assessed the Applicant’s claim and rendered itsfinding in light of the facts and evidence. [17] Having reviewed the parties’ motion materials and the underlying decision, I agree that there is a serious issue to be tried.

Theunderlying application for judicial review raises issues surrounding the RPD’s proper assessment of the Applicant’s evidence,particularly given the severe consequences of a no credible basis finding under subsection 107(2). These issues are sufficient to meet thefirst prong of the Toth test. B. Irreparable Harm [18] At the second stage of the test, applicants are required to demonstrate that irreparable harm will result if relief is not granted.Irreparable harm does not refer to the magnitude of the harm; rather, it is a harm that cannot be cured or quantified in monetary terms(RJR-MacDonald at 341).

This Court must be satisfied on a balance of probabilities that the harm is not speculative, but does not have tobe satisfied that the harm will occur (Xu v Canada (Minister of Employment and Immigration), [1994] FCJ No 746, 79 FTR 107(FCTD); Horii v Canada (C.A.), (FCA), [1991] FCJ No 984, [1992] 1 FC 142 (FCA)). [19] The Applicants submit that they will suffer irreparable harm if returned to Vietnam.

The Applicants submit that a finding ofirreparable harm flows from the several serious issues raised in the RPD’s finding that their claim has no credible basis, whichconsequently deprived the Applicants of a regulatory stay of removal or a right to appeal to the Refugee Appeal Division. The Applicantsfurther submit that the potential mootness of the underlying application for leave and judicial review of the RPD decision contributes tothe finding that they would face irreparable harm if removed. [20] The Respondent submits that the Applicants have not made out this prong of the test for a stay of removal.

The Respondent notesthat irreparable harm must constitute more than a serious of possibilities and cannot be based simply on assertions or speculation. TheRespondent submits that the Applicants have not provided any evidence to demonstrate that they would face irreparable harm uponremoval and any harm alleged is based in speculation or on the first prong of the Toth test. [21] I agree with the Respondent and do not find that irreparable harm is made out in this case.

The Applicants’ submissions at this stageof the test for a stay of removal largely reiterate their submissions under the first prong and, in so doing, fail to provide any new evidenceof a risk that they face if returned to Vietnam. They have not shown, or even submitted, that the Vietnamese authorities continue to posea threat to them such that they would face irreparable harm if a stay were not granted. Instead, the Applicants mainly submit thatirreparable harm is made out because of the severe consequences of the RPD’s finding and because the underlying application would berendered moot.

This is insufficient to make out irreparable harm in this case. C. Balance of Convenience [22] The third stage of the test requires an assessment of the balance of convenience—a determination to identify which party will sufferthe greater harm from the granting or refusal of the interlocutory injunction, pending a decision on the merits (RJR-MacDonald at 342;Metropolitan Stores Ltd at 129).

It has sometimes been said, "“Where the Court is satisfied that a serious issue and irreparable harm havebeen established, the balance of convenience will flow with the Applicant”" (Mauricette v Canada (Public Safety and EmergencyPreparedness), 2008 FC 420 at para 48). However, the Court must also consider the public interest to uphold the properadministration of the immigration system. [23] The Applicants submit that the balance of convenience favours granting the stay of removal.

They submit that the risk of harm theyface upon removal outweighs the inconvenience to the Respondent in being unable to enforce removal. [24] The insufficient evidence of irreparable harm is determinative of this motion. Nonetheless, the balance of convenience weighs infavour of the Respondent. Subsection 48(2) of IRPA, states that removal orders must be enforced as soon as possible.

Lacking sufficientevidence of irreparable harm, the balance of convenience favours the Minister in enforcing the removal order expeditiously. [25] Ultimately, the Applicants do not meet the tri-partite test required for a stay of removal. This motion is therefore dismissed. ORDER in IMM-12176-22

THIS COURT ORDERS that : 1 . The Applicants’ motion for a stay of their removal is dismissed. 2 . The style of cause is changed to reflect only the Minister of Public Safety and Emergency Preparedness as the proper Respondent in this stay motion. “Shirzad A.” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-12176-22 STYLE OF CAUSE: DINH DUNG NGUYEN AND THI QUYNH TRAN v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: BY VIDEOCONFERENCE DATE OF HEARING: June 8, 2023 ORDER AND REASONS: AHMED J.

DATED: June 8, 2023 APPEARANCES : Gavin MacLean For The Applicants Margherita Braccio For The Respondent SOLICITORS OF RECORD : Gavin MacLean Immigration Barrister and Solicitor Toronto, Ontario For The Applicants Attorney General of Canada Toronto, Ontario For The Respondent