2022 FC, 2022 FC 1801

Date: 20221229 Docket: IMM-12796-22 Citation: 2022 FC 1801 Ottawa, Ontario, December 29, 2022 PRESENT: Mr. Justice Sébastien Grammond BETWEEN: KARINA GABRIELA QUEZADA SALAS DIEGO DANIEL PINELO QUEZADA HUGO HECTOR MARTINEZ QUEZADA Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent ORDER AND REASONS [ 1 ] The applicants seek a stay of their removal to Mexico scheduled for January 4, 2023. Their request for a deferral of their removal was recently dismissed.

I am dismissing their motion, as they have not shown any new risk that was not properly assessed by previous decision makers, and their submissions do not fit within the recognized categories of situations warranting a deferral of removal. I. Background [ 2 ] Ms. Salas and her sons Diego and Hugo, respectively aged 7 and 12, are citizens of Mexico. They came to Canada in 2019 and claimed refugee protection. They alleged that a well-known criminal organization tried to recruit Diego’s father, who is a police officer.

As the father refused, they fear that the organization could harm them to secure his collaboration. [ 3 ] The Refugee Protection Division [RPD] of the Immigration and Refugee Board [IRB] dismissed their claims. While it did not doubt Ms. Salas’s credibility, it found that the applicants had an internal flight alternative [IFA] in Mérida. It noted that Ms. Salas was no longer in contact with her son’s father, and that it was speculative that the criminal organization would harm the applicants. [ 4 ] Ms. Salas’s appeal to the Refugee Appeal Division [RAD] was dismissed. The RAD noted that Ms.

Salas did not highlight any specific errors that the RPD would have made. Moreover, it rejected her allegations that there were errors in the

interpretation of her testimony before the RPD and that the RPD failed to take into account her gender when assessing the IFA. [ 5 ] Ms. Salas did not seek judicial review of the RAD’s decision. [ 6 ] The RAD issued its decision on May 17, 2022. On August 26, 2022, Ms. Salas received a notice to appear at the offices of the Canada Border Services Agency [CBSA] on September 12, 2022, in preparation for her removal. At the interview on that date, she was given a notice to appear again on October 12, 2022 and to bring “a copy of therapist report and any other medical documentation.” [ 7 ] On October 12, 2022, Ms.

Salas met with the CBSA officer and provided certain medical and school records. The officer gave Ms. Salas another notice to appear, this time on October 21, 2022, and directed her to provide medical documentation by October 19, 2022. On October 19, 2022, through her counsel, Ms. Salas asked the officer to defer her removal and appended a psychologist’s report regarding herself and medical documentation regarding her son Hugo. On the same day, the officer replied that she had received a deferral request, but that it was premature, as she had not yet issued the applicants a direction to report for her removal.

A further interview took place on October 21, 2022, at the end of which the officer issued the applicants a direction to report for removal on January 4, 2023. [ 8 ] On December 14, 2022, the applicants brought an application for leave and judicial review of the “removal order” made on October 21, 2022, as if it were a negative deferral decision. The application was accompanied by a request for an extension of time.

On December 22, 2022, the applicants brought a motion for a stay of their removal. [ 9 ] Concurrently, on December 21, 2022, the applicants filed an application for permanent residence based on humanitarian and compassionate [H&C] considerations. [ 10 ] When I heard this motion on December 28, 2022, it became apparent that the CBSA officer considered that she had not yet rendered a decision on Ms. Salas’s deferral application. I adjourned the matter until later during the day to obtain clarification of this issue. A negative deferral decision was then issued by another CBSA officer.

The officer focused mainly on Ms. Salas’s and Hugo’s health concerns. With respect to the psychologist’s report concerning Ms. Salas, the officer noted that she had not sought treatment before her removal was imminent, that her symptoms did not appear to affect her daily life or her ability to work or care for her children and that there was no evidence that she required emergency psychological intervention.

With respect to Hugo, the officer noted the moderate fatty liver diagnosis and the recommendation for a weight management program, but underscored the lack of evidence of any need for emergency treatment or the unavailability of treatment in Mexico. The officer also noted that Ms. Salas had not put forward any new evidence of risk and that the family members had no further applications to remain in Canada. [ 11 ] After both parties had an opportunity to review this decision, I reconvened the hearing and the parties argued the motion as if the

application for leave and judicial review targeted this decision. II. Analysis [12] Motions for stay of removal are decided according to the well-known three-part test for interlocutory injunctions: RJR – MacdonaldInc v Canada (Attorney General), (SCC), [1994] 1 SCR 311 [RJR], and R v Canadian Broadcasting Corp, 2018 SCC5, [2018] 1 SCR 196. The Court must determine whether: (1) the applicant has shown that the underlying application raises a seriousissue; (2) the applicant will suffer irreparable harm if the stay is not granted; and (3) whether the balance of convenience favours theapplicant. A.

Serious Issue [13] When the underlying application targets a decision refusing deferral, the motion for stay of removal seeks the same remedy as theunderlying application and is often the final determination of the matter.

In these circumstances, the first prong of the RJR test is appliedmore rigorously and the applicant must show “quite a strong case” and not simply a "“serious issue”:" RJR, at 338–339; Baron v Canada(Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 at paragraphs 66–67, [2010] 2 FCR 311 [Baron]; Ledshumananv Canada (Public Safety and Emergency Preparedness), 2021 FC 1463 at paragraphs 19–22 [Ledshumanan].

Moreover, as theunderlying proceeding is an application for judicial review, the strength of the case must be assessed having regard to the fact that theapplicants must show that the decision challenged is unreasonable. [14] It bears noting that unless a new risk has arisen in the country to which a person will be removed, a request for deferral is intendedto address “a transitional situation that causes significant prejudice to the applicant or to related persons”: Gill v Canada (Public Safetyand Emergency Preparedness), 2020 FC 1075 at paragraph 16 [Gill].

Such short-term situations include “illness or other impediments toremoval, the short term best interests of children, or the existence of pending immigration applications that were made on a timely basis”:Revell v Canada (Citizenship and Immigration), 2019 FCA 262 at paragraph 50, [2020] 2 FCR 355; see also Kreishan v Canada(Citizenship and Immigration), 2019 FCA 223 at paragraphs 125–126, [2020] 2 FCR 299. [15] The applicants have raised a number of grounds in support of their application, both under the heading of serious issue andirreparable harm.

The manner in which they presented their arguments changed somewhat once the negative deferral decision wasrendered. I will analyze these grounds in what appears to be the most logical order.

(1) Prematurity [16] The applicants argue that the CBSA officer who issued the deferral decision on December 28, 2022 did not consider thedocumentation they sent earlier that same day. They say that the officer with whom they dealt during the fall communicated with theircounsel on December 23, 2022, to ask whether they intended to submit additional documentation in support of their request for deferral. [17] It is obvious that this matter was not handled in an optimal manner.

I do not agree, however, that the deferral decision waspremature or unfair. [18] In this regard, I note that the applicants were informed in writing on October 19, 2022 that their request for deferral was premature.They were invited to submit it again once a direction to report for removal was issued, which happened two days later. They did not doso. In reality, they did not communicate with the CBSA officer for the next two months.

During this period, they collected additionaldocumentation to support their H&C application and the present motion, but did not see fit to send a copy to the CBSA officer. [19] In these circumstances, the applicants can hardly complain that their request for deferral was denied on December 28, 2022, and thatthe additional documents they sent on that day were apparently not considered by the officer. [20] In any event, the additional documents would not have affected the deferral decision. These documents were filed with the motionfor a stay of removal.

Photographs and letters from friends, teachers or employers are more relevant to an H&C application than to arequest for deferral. Notes regarding medical appointments in November do not add much to what the officer already had before him. Iwill explain later why country condition documentation also has little relevance.

(2) Pending H&C Application [21] The applicants submit that their removal should be stayed to allow for the processing of their H&C application, apparentlysubmitted on December 21, 2022. [22] It is unclear whether this application came to the attention of the officer who issued the negative deferral decision on December 28,2022.

The officer simply states that the applicants “have no further applications to remain in Canada,” which would suggest that he wasnot aware of the application filed one week earlier. [23] In any event, filing a last-minute H&C application is not grounds to defer removal: Baron, at paragraph 53; Lewis v Canada (PublicSafety and Emergency Preparedness), 2017 FCA 130 at paragraphs 56–57, [2018] 2 FCR 229; Ledshumanan, at paragraphs 46–50.

It isonly when the decision on an H&C application is imminent that deferral is warranted: Newman v Canada (Public Safety and EmergencyPreparedness), 2016 FC 888 at paragraphs 28–31. [24] Thus, even if the officer had been aware of the existence of the H&C application, he would have been bound by well-establishedcase law to give it no weight in his decision.

(3) Opportunity to Obtain a PRRA

[25] The RAD rejected the applicants’ claim for refugee status on May 17, 2022. Pursuant to clause 112(2)(b.1)(ii)(

B) of theImmigration and Refugee Protection Act, SC 2001, c 27 [the Act], they cannot apply for a PRRA until one year later, that is, May 17,2023. The applicants submit that their removal should be stayed until that date to render them admissible to a PRRA. They argue thatfailing this, their risk would not have been properly assessed and they would not have received “due process.” [26] The applicants did not raise this issue in their written request for deferral and the officer did not deal with it.

In any event, theapplicants’ submission is based on a misunderstanding of the purpose of a PRRA and its interaction with the refugee status determinationprocess. [27] A PRRA application “may require consideration of some or all of the same factual and legal issues as a claim for refugeeprotection”: Raza v Canada (Citizenship and Immigration), 2007 FCA 385 at paragraph 12. To avoid duplication, the Act provides atparagraph 113(

a) that only evidence that post-dates a decision of the RPD or RAD is admissible: ibid. It also provides that a PRRAapplication cannot be made before a year elapses after the final decision regarding refugee status, a provision commonly known as the“PRRA bar.” The PRRA bar is based on the assumption that during that year, the factual basis of a decision denying refugee statusremains current.

Hence, there cannot be an entitlement to a PRRA during that one-year period, nor an entitlement to remain in Canadauntil that period elapses. [28] I would add that the applicants have not put forward any change of circumstances occurring after the RAD’s decision that wouldhave affected the risk to which they would be exposed upon returning to Mexico. Nor have they suggested that they have any newevidence that they could not have brought before the RAD. At the hearing, counsel highlighted the report of the psychologist who foundthat Ms.

Salas suffered from depression and anxiety and that this would bolster the latter’s credibility. However, the RPD and RAD didnot doubt Ms. Salas’s credibility. Her psychological condition is unrelated to the availability of an IFA, which was the decisive issue. [29] In this regard, the officer noted that “No new evidence of risk has been presented to warrant a deferral of removal for a further riskassessment.” In light of the above, the applicants have failed to raise a serious issue with this finding.

(4) Ms. Salas’s Psychological Condition [30] With respect to Ms. Salas’s psychological condition, the officer noted that Ms. Salas has not sought treatment before and that theassessment was requested after her first removal interview; that her psychological symptoms do not affect her daily activities; and thatthere is no evidence that treatment is urgent or that it would be unavailable in Mexico. [31] The applicants have failed to raise a serious issue regarding the officer’s findings, which were compatible with the evidence beforehim.

Moderate psychological symptoms are the unfortunate, but inherent consequence of removal, and cannot base a request for deferral:Palka v Canada (Public Safety and Emergency Preparedness), 2008 FCA 165 at paragraph 17. It was also legitimate to take into accountthe fact that Ms. Salas did not seek psychological help until she was facing removal: Melay v Canada (Public Safety and EmergencyPreparedness), 2022 FC 1406 at paragraph 23.

(5) Hugo’s Health Condition [32] With respect to Hugo’s health condition, the officer noted the moderate fatty liver diagnosis, the recommendation for a weightmanagement program and an appointment with a specialist doctor.

However, the officer found that there was no evidence of any need ofemergency treatment nor that treatment would be unavailable in Mexico. [33] This finding is compatible with the evidence and the applicable legal principles. [34] Removal may be deferred “where boarding a plane would pose a serious health risk to the applicant, where medical treatment ordiagnosis is imminent or where the prospect of removal would trigger a serious mental health risk”: Gill, at paragraph 19. However, as Imentioned above, deferring removal is meant to address short-term issues only.

It does not confer a long-term right to reside in Canada.For this reason, a long-term or chronic medical condition cannot ground a request for deferral: Adeleye v Canada (Public Safety andEmergency Preparedness), ; Bastien v Canada (Citizenship and Immigration), 2021 FC 926 at paragraph 25. [35] In this case, the evidence suggests that Hugo’s fatty liver is a long-term condition that will need follow-up and various forms oftreatment in the long term. The officer correctly noted that there was no indication that emergency treatment was needed.

The case doesnot fall within the categories of issues that warrant deferral.

(6) Interruption of School Year [36] Relying on my decision in Iheonye v Canada (Public Safety and Emergency Preparedness), 2018 FC 375 [Iheonye], and similarcases, the applicants argue that their removal should be deferred to allow Hugo and Diego to complete their school year. I note that theapplicants did not include this submission in their written request for deferral and that the CBSA officer did not deal with it. [37] Iheonye and similar cases do not stand for the proposition that children can never be removed during the school year.

Rather, it ismainly when a school year is about to end that removal may be deferred on this ground. [38] In this case, we are far from the end of the school year. In fact, the applicants’ removal coincides with a natural break close to themiddle of the school year. Moreover, the applicants were informed of their impending removal in late August. They had sufficient time toprepare for the transition.

(7) Summary Regarding Serious Issue

[39] The applicants have failed to raise a serious issue regarding the reasonableness of the decision to deny their request for deferral. Inreaching this conclusion, I have considered not only the submissions they made to the CBSA officer, but also arguments made for thefirst time in the context of the motion for stay of removal. None is sufficient to support a deferral. The first part of the RJR test is notmet. B. Irreparable Harm [40] Irreparable harm is the second part of the RJR test.

Where a motion for stay of removal is brought within an application for judicialreview of a negative deferral decision, serious issue and irreparable harm frequently overlap: Gill, at paragraph 22. Thus, as I have foundthat there is no serious issue, it largely follows that there is no irreparable harm. [41] In this respect, the applicants heavily insisted on the risk to which they would be exposed upon returning to Mexico.

A motion forstay of removal, however, is not the appropriate forum to reargue risks that have been adequately assessed by previous decision-makers:Goshen v Canada (Public Safety and Emergency Preparedness), 2011 FC 1380 at paragraph 6; Lebrun v Canada (Citizenship andImmigration), 2018 CF 663 , 2018 FC 663 at paragraph 15; Medina Cerrato v Canada (Public Safety and EmergencyPreparedness), 2018 FC 1231 at paragraph 23; Pierre v Canada (Public Safety and Emergency Preparedness), 2020 FC 887;Ledshumanan, at paragraph 62; Garrick v Canada (Citizenship and Immigration), 2022 FC 317 at paragraph 17. [42] The applicants’ submissions regarding the risk that a criminal organization would harm them have been made before the RPD andthe RAD, who rejected them.

In particular, the RPD noted that the applicants did not allege that the criminal organization tried to locateor harm them and that they did not have the profile of persons whom the organization would seek to track. The applicants have notattempted to show that the decisions of the RPD and RAD were erroneous or unreasonable, beyond their counsel’s bare assertion that thecriminal organization would be able to find them anywhere in the country.

While the applicants submitted additional objective evidenceregarding the criminal organization, they failed to explain how this evidence refuted the findings of the RPD and RAD. [43] Hence, the applicants have failed to show that their removal would expose them to irreparable harm. C. Balance of Convenience [44] As the applicants failed to show a serious issue and irreparable harm, it is not necessary to assess the balance of convenience. III. Disposition [45] As the applicants have not met the three prongs of the RJR test, their motion for a stay of their removal from Canada will bedismissed.

ORDER in IMM-12796-22 THIS COURT ORDERS that the motion for a stay of the applicant’s removal from Canada is dismissed. "Sébastien Grammond" Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-12796-22 STYLE OF CAUSE: KARINA GABRIELA QUEZADA SALAS, DIEGO DANIEL PINELO QUEZADA,HUGO HECTOR MARTINEZ QUEZADA v THE MINISTER OF CITIZENSHIPAND IMMIGRATION PLACE OF HEARING: BY VIDEOCONFERENCEDATE OF HEARING: December 28, 2022

order and REASONS: GRAMMOND J. DATED: DECEMBER 29, 2022 APPEARANCES : Ljusi Brace For The Applicants Allison Grandish For The Respondent SOLICITORS OF RECORD : Brace Law Professional Corporation Oakville, Ontario For The Applicants Attorney General of Canada Ottawa, Ontario For The Respondent