2022 FC, 2022 FC 1793

Date: 20221223 Docket: IMM-13022-22 Citation: 2022 FC 1793 Ottawa, Ontario, December 23, 2022 PRESENT: Mr. Justice Sébastien Grammond BETWEEN:LAN LIUApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent ORDER AND REASONS [1] Ms. Liu is seeking a stay of her removal to China, scheduled for December 28, 2022. I am dismissing her motion, because she has notshown that the refusal of her spousal sponsorship application raises a serious issue, nor that her removal would expose her to anyirreparable harm. I. Background [2] Ms. Liu is a citizen of China.

We only know her story through the submissions of her counsel. While in China, she allegedlyexperienced domestic violence. She came to Canada on a visitor visa. After overstaying her visa and divorcing her Chinese husband, shemarried a Canadian citizen, who applied to sponsor her. [3] On October 25, 2022, the sponsorship application was refused. The officer found that Ms. Liu and her sponsor were not in a genuinemarital relationship. [4] On November 29, 2022, Ms. Liu was informed that her removal would take place no later than December 30, 2022.

The date wasthen set for December 28, 2022. [5] On December 16, 2022, Ms. Liu filed an application for judicial review of the refusal of the sponsorship application, accompanied bya request for an extension of time. On December 21, 2022, she filed a motion for a stay of her removal from Canada. II. Analysis [6] 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. [7] To assess the three prongs of the RJR test, the Court needs evidence. That evidence must be adduced in conformity with the FederalCourts Rules, SOR/98-106, in particular rules 359–367 dealing with motions, and paragraphs 9–15 of this Court’s Consolidated PracticeGuidelines for Citizenship, Immigration and Refugee Protection Proceedings (June 24, 2022).

Although motions for stay of removal arebrought within a short time frame, which warrants a certain degree of flexibility, the basic rule remains that evidence must be broughtbefore the Court by way of affidavits. [8] In this case, the quasi-total lack of evidence brought by Ms. Liu significantly hampers the Court’s ability to deal with her motion. Theonly evidence supporting the motion is an affidavit from a legal assistant, who attaches the direction to report for removal given to Ms.Liu. Other facts are mentioned in the submissions of counsel, but are not supported by any affidavit.

I return to this issue below. A. Serious Issue [9] In RJR, at 337, the Supreme Court of Canada held that the serious issue prong of the test is a low threshold, which is met as long asthe issue raised by the applicant is not frivolous. [10] The only ground invoked by Ms. Liu is the insufficiency of the reasons given by the officer for refusing the sponsorship application.However, Ms. Liu is targeting the decision letter sent to her. Usually, the reasons for the refusal of a sponsorship application are found inan entry in the Global Case Management System [GCMS].

Only when these reasons are received would it be possible to assess theirsufficiency. [11] I understand that Ms. Liu is in a difficult position given that she was only recently able to retain a lawyer. However, the total lack ofevidence prevents me from finding any serious issue with the validity of the officer’s decision. Counsel also submitted that the

reasonableness of the decision is a matter for the judicial review, not the stay motion, and that it was not necessary to file in evidence thecomplete application file. This, however, does not give rise to a presumption that there is a serious issue. Even though the bar is low, aserious issue has to be demonstrated, not assumed. B. Irreparable Harm [12] In her submissions, Ms. Liu asserts that upon her return to China, she would be at risk of persecution by her ex-husband or by theCommunist Party, of which the ex-husband would be a member. These submissions, however, are not backed by any evidence. Ms.

Liudid not provide an affidavit attesting to the facts that ground her fears. Nor can I draw those facts from previous decisions. [13] The Court cannot grant a stay in the absence of evidence of any harm that would befall Ms. Liu. Counsel’s submissions are notevidence: Gordon v Canada (Citizenship and Immigration), 2014 FC 1015 at paragraph 6; Pierre v Canada (Minister of Citizenship andImmigration), 2002 FCT 708 at paragraph 27; Grillas v Minister of Manpower and Immigration, (SCC), [1972] SCR 577at 595.

A motion for a stay is not an informal administrative proceeding in which facts are customarily put before the decision maker byway of counsel’s submissions: Ferguson v Canada (Citizenship and Immigration), 2008 FC 1067 at paragraphs 29–30. Of course, whennew developments take place hours before the hearing of a stay motion, it may be impossible to obtain an affidavit and the facts may bebrought before the Court by whatever means available. [14] In this case, counsel was retained on December 16. At the hearing, counsel explained that Ms.

Liu does not speak English and thathe had to communicate with her through her husband, who was not always available. I appreciate the challenges that counsel had to face.However, it would have been possible to obtain an affidavit from Ms. Liu’s husband, or an affidavit from Ms. Liu interpreted by herhusband. [15] In any event, the submissions made on behalf of Ms. Liu are extremely limited. It is said that she experienced domestic violencefrom her ex-husband, who was a member of the Communist Party, and that in discussions with him, she objected to the actions of theCommunist Party.

The ex-husband would have responded with threats to have her imprisoned. In my view, these bare statements areinsufficient to establish irreparable harm. There is no explanation as to how her return to China would come to the attention of her ex-husband, nor any indication that her political opinions have come to the attention of anyone beyond her ex-husband. [16] A puzzling aspect of the case is the fact that Ms. Liu’s spousal sponsorship application included her son, who still lives in China. Atthe hearing, counsel advised that the son is living with Ms. Liu’s ex-husband.

It is difficult to understand how the ex-husband could atthe same time threaten to have Ms. Liu imprisoned and be prepared to surrender the child to her permanently in the event her sponsorshipapplication is allowed. [17] Moreover, two years elapsed between Ms. Liu’s arrival in Canada and meeting her current husband. In those two years, she did notclaim refugee status, which suggests that she does not in fact fear any irreparable harm upon returning to China. [18] Thus, I find that Ms. Liu has not discharged the burden of proving that her return to China would expose her to irreparable harm. C.

Balance of Convenience [19] Having found no serious issue and no irreparable harm, it is not necessary for me to address the balance of convenience. III. Disposition [20] As the RJR test is not met, Ms. Liu’s motion for a stay of her removal to China will be dismissed. ORDER in IMM-13022-22 THIS COURT ORDERS that the motion is dismissed. "Sébastien Grammond" Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-13022-22

STYLE OF CAUSE: LAN LIU v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: BY VIDEOCONFERENCE DATE OF HEARING: December 23, 2022 ORDER AND REASONS: GRAMMOND J. DATED: December 23, 2022 APPEARANCES : Harsher Singh Sidhu For The Applicant Philippe Alma For The Respondent SOLICITORS OF RECORD : MVS Law Professional Corporation Toronto, Ontario For The Applicant Attorney General of Canada Ottawa, Ontario For The Respondent