JEFFERSON OMO OGIERIAKHI DIANE IZEGBUWA OGIERIAKHI BLESSED OMO OGIERIAKHI (A MINOR REPRESENTED BY HIS LITIGATION GUARDIAN JEFFERSON OMO OGIERIAKHI) Applicants v. THE MINISTER OF, 2023 FC 256

Date: 20230222 Docket: IMM-1240-23 Citation: 2023 FC 256 Ottawa, Ontario, February 22, 2023 PRESENT: The Honourable Madam Justice Rochester BETWEEN:JEFFERSON OMO OGIERIAKHI DIANE IZEGBUWA OGIERIAKHI BLESSED OMO OGIERIAKHI (A MINOR REPRESENTED BY HIS LITIGATION GUARDIAN JEFFERSON OMO OGIERIAKHI)ApplicantsandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent ORDER AND REASONS [1] The Applicants seek a stay of removal to Nigeria scheduled for February 24, 2023.

The present motion for a stay is broughtas interlocutory relief to an Application for Leave and for Judicial Review [ALJR] of a decision dated December 22, 2022, rejecting theApplicants Pre-Removal Risk Assessment [PRRA] Application [Decision]. [2] The Applicants are failed refugee claimants and citizens of Nigeria. The Principal Applicant is Jefferson Omo Ogieriakhi.His refugee claim was based on allegations that he is bisexual.

The claims of his wife, Diane Izegbuwa Ogieriakhi, and their son, BlessedOmo Ogieriakhi, were based on the allegations of the Principal Applicant. [3] The Refugee Protection Division [RPD] rejected the Applicants’ claims, concluding that the determinative issue wascredibility.

The Refugee Appeal Division [RAD] confirmed the RPD’s decision, finding a lack of credibility, and concluded that theApplicants had failed to establish that they were persons in need of protection within the meaning of sections 96 and 97 of theImmigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. [4] Following the refusal of the RAD, the Applicants obtained new evidence relating to the Principal Applicant’s allegations ofbisexuality, which they included in an application on humanitarian and compassionate [H&C] grounds.

The Canadian Border ServicesAgency commenced removal proceedings while the H&C application was pending, for which the Applicants sought a deferral based onthe risk raised in the new evidence. The Applicants’ deferral of removal request was denied. They sought judicial review of thatdecision, along with a stay of removal. [5] A stay of removal was granted by this Court on November 27, 2019. In July 2022, the Applicants were given a PRRA.

Theevidence submitted included the new evidence submitted for the H&C application, the denied deferral request and the 2019 stay motion. [6] The Senior Immigration Officer [Officer] rendering the Decision noted that the risk alleged was the same risk alleged by thePrincipal Applicant before the RPD and the RAD. The Officer admitted a portion of the new evidence, but concluded that very littlenew, personalized, and probative evidence had been submitted in order to support the Applicants’ statements in the PRRA application,given that the onus was on the Applicants to overcome the credibility issues.

The Officer concluded that there was insufficient evidenceto establish that the Principal Applicant is or is perceived to be a sexual minority and that he faces a forward-looking risk in Nigeria. [7] In order to succeed on a motion to stay the enforcement of a removal order, the Applicants must meet the following tripartitetest, namely that: (1) there is a serious issue to be tried (that is, the underlying ALJR raises a serious issue); (2) they would sufferirreparable harm, that is not quantifiable and non-compensable in damages in its absence, if the stay were not granted; and (3) the balanceof convenience favours granting the stay (RJR-MacDonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR311 [RJR-MacDonald]; Toth v Canada (Minister of Employment and Immigration), (1988) 86 NR 302, (FCA); R vCanadian Broadcasting Corp, 2018 SCC 5 at para 12); [8] The tripartite test is conjunctive, meaning that, to be entitled to relief, an applicant must satisfy all three elements of the test(Janssen Inc v Abbvie Corporation, 2014 FCA 112 at para 14 [Janssen]).

None of the three branches can be seen as an “optional extra”(Janssen at para 19), and the “failure of any of the three elements of the test is fatal” (Canada (Citizenship and Immigration) v Ishaq,2015 FCA 212 at para 15; Western Oilfield Equipment Rentals Ltd v M-I LLC, 2020 FCA 3 at para 7).

A stay is an extraordinary remedywhich requires the Applicants to demonstrate special and compelling circumstances that would justify exceptional judicial intervention(Harkat v Canada (Minister of Citizenship and Immigration), 2006 FCA 215 at para 10; Zuniga v Canada (Citizenship andImmigration), 2016 FC 992 at para 5); [9] I find the determinative issue to be irreparable harm, being the second branch of the tripartite test. This branch places theonus on the Applicants to demonstrate through clear and convincing evidence that irreparable harm will occur if the stay of removal isnot granted.

This must be established based on clear and non-speculative evidence at a convincing level of particularity demonstrating areal probability that unavoidable irreparable harm will result (Glooscap Heritage Society v Canada (National Revenue), 2012 FCA 255

at para 31 [Glooscap]; Erhire v Canada (Public Safety and Emergency Preparedness), 2021 FC 941 at para 65 and the cases citedtherein). Irreparable harm must consist of more than a series of possibilities and cannot be based on assertions, speculation, assumptionsor hypotheticals (Atwal v Canada (Minister of Citizenship and Immigration), 2004 FCA 427 at paras 14-15; Glooscap at para 31). Thenotion of irreparable harm refers to the nature of the harm suffered rather than its magnitude.

It is harm which “either cannot bequantified in monetary terms or which cannot be cured” (RJR-MacDonald at p 341); [10] Irreparable harm, for the purposes of a stay application, is a stringent test that requires clear and convincing evidence of aserious threat to an applicant’s life, security or safety (or that of their family) (Pierre v Canada (Public Safety and EmergencyPreparedness), 2020 FC 887 ; Mondelus v Canada (Public Safety and Emergency Preparedness), 2011 FC 1138 at paras 70-73;Schenker v Canada (Citizenship and Immigration), ; Yu v Canada (Citizenship and Immigration), ; Golubyev v Canada (Citizenship and Immigration), 2007 FC 395 at para 12). [11] The Applicants have failed to establish that they would suffer irreparable harm upon removal to Nigeria.

The Respondentsubmits, and I agree, that alleged risks that have already been assessed and found lacking cannot constitute irreparable harm for thepurpose of a stay motion.

It is well settled that risks previously assessed and rejected by the RPD and a PRRA officer cannot be reliedupon to demonstrate irreparable harm in a subsequent stay motion (Singh v Canada (Minister of Citizenship and Immigration), 2005 FC145 at para 14; Eid v Canada (Minister of Citizenship and Immigration), 2010 FC 639 at para 85; Goshen v Canada (Public Safety andEmergency Preparedness), 2011 FC 1380 at para 6; Spooner Romero v Canada (Minister of Citizenship and Immigration), ; Idahosa v Canada (Citizenship and Immigration), ). [12] In the present matter, the risk alleged by the Applicants, being Mr.

Ogieriakhi’s sexuality, was the very same risk that wasassessed and rejected by the RPD, the RAD and the Officer. At the RPD and RAD, the determinative issue was credibility. The Officernoted that it was the same risk and concluded that the new evidence submitted by the Applicants was insufficient to disprove theassessment by the RPD and the RAD. [13] The Applicants submit that the Officer erred in refusing to admit a portion of the new evidence.

They plead that theirarguments on serious issue meet the low threshold, and thus, if the Court accepts that a serious issue has been raised, then irreparableharm follows. They highlight that the underlying application is about the risk of physical harm – which constitutes irreparable harm. [14] I do not agree with the Applicants that irreparable harm necessarily follows. Rather, the Court must assess the evidence beforeit and make its own determination concerning the risks faced by the Applicants.

I have carefully considered the entire record, whichincludes the RPD decision; the Decision; the submissions made by the Applicants in their deferral request, in the first stay motion, and intheir PRRA application; multiple affidavits; evidence relied upon before the RPD and the RAD; and the new evidence that wassubmitted by the Applicants to the Officer. I have paid particular attention to the Principal Applicant’s testimony before the RPD, hisaffidavits in the present proceedings and the PRRA application, and the evidence of the risk submitted by the Applicants.

Based on myreview of the record, I have not been persuaded that the Applicants have met the stringent test that requires clear and convincingevidence of a serious threat to an applicant’s life, security or safety. [15] The Applicants also submit that the potential mootness of the pending judicial review of the Decision constitutes irreparableharm. I find that the potential mootness of an underlying application is not sufficient, in and of itself, to constitute irreparable harm.

I amguided by the Federal Court of Appeal in Shpati v Canada (Public Safety and Emergency Preparedness), 2011 FCA 286: [34] This, in my opinion, is sufficient to dispose of the appeal. However, in case I am wrong, and in order to attempt to reduceuncertainty in the law, it is appropriate for this Court to address the issue raised in the certified question: does the potential mootness ofthe pending PRRA litigation warrant deferral of removal? [35] In my view, the answer to this question is no.

If it were otherwise, deferral would be virtually automatic whenever an individualfacing removal had instituted judicial review proceedings in respect of a negative PRRA. This would be tantamount to implying astatutory stay in addition to those expressly prescribed by the IRPA, and would thus be contrary to the statutory scheme. [16] If the Court were to accept the Applicants’ argument, it would apply virtually any time a party who seeks judicial review of aPRRA decision is under a removal order and deprive the Court of the discretion to decide questions of irreparable harm on the facts of acase.

Nevertheless, it remains open to the Court, on the individual circumstance of a particular case, to conclude that mootnessconstitutes irreparable harm (Palka v Canada (Public Safety and Emergency Preparedness), 2008 FCA 165 at para 20). Considering theforegoing, I have not been persuaded that, in the present case, there are particular circumstances allowing me to conclude that thepotential mootness of the Decision constitutes irreparable harm. [17] For the foregoing reasons, I conclude that the requirements of the tripartite test for a stay of execution of the removal orderhave not been met.

ORDER in IMM-1240-23 THIS COURT ORDERS that: 1. The motion for a stay of execution of the removal order issued against the Applicants is dismissed. 2. All without costs. “Vanessa Rochester” Judge

FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-1240-23 STYLE OF CAUSE: JEFFERSON OMO OGIERIKHI ET AL v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD BY VIDEOCONFERENCE DATE OF HEARING: FEBRUARY 21, 2023 ORDER AND REASONS: ROCHESTER J. DATED: FEBRUARY 22, 2023 APPEARANCES : Penny Yektaeian For The ApplicantS Stephen Jarvis For The Respondent SOLICITORS OF RECORD : Penny Yektaeian Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent