2022 FC, 2022 FC 1804

Date: 20221231 Docket: IMM-13240-22 Citation: 2022 FC 1804 Ottawa, Ontario, December 31, 2022 PRESENT: Mr. Justice Sébastien Grammond BETWEEN:DIANA NATHALY VARELA GARRIDOGABRIEL ALEXANDER SANCHEZ VARELAApplicantsandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] The applicants seek a stay of their removal to Chile, scheduled for later today, December 31, 2022. Their request for a deferral wasrecently dismissed. I am dismissing their motion, because they have not raised a serious issue with respect to the reasonableness of thedeferral decision.

Moreover, the harm they would allegedly be exposed to upon their return to Chile has been assessed by previousdecision makers. I. Background [2] Ms. Varela and her son Gabriel, who is now seven years old, are citizens of Chile. They came to Canada in 2019 and claimed refugeestatus a few months later. They alleged that Gabriel’s paternal grandfather sexually harassed Ms. Varela and threatened to abductGabriel. Ms. Varela obtained a restraining order against the grandfather for a period of two years. Subsequently, the grandfather askedfor a mediation and Ms. Varela agreed to participate. As a result, Ms.

Varela and the grandfather agreed that the latter would have rightsto visit Gabriel, in the presence of the grandmother. [3] Their claim was dismissed by the Refugee Protection Division [RPD] of the Immigration and Refugee Board [IRB]. An appeal waslater dismissed by the Refugee Appeal Division [RAD] of the IRB. In substance, both tribunals found that state protection was availablein Chile and that Ms. Varela failed to avail herself of the protection of the police. In this regard, both tribunals found that Ms.

Varela hadnot credibly established that she complained to the police, as she failed to mention this incident in her Basis of Claim [BOC] form. Theyalso considered a report by a psychotherapist, but concluded that Ms. Varela’s mental health condition did not explain her failure tomention the alleged 2018 police complaint in her BOC form. An application for leave and judicial review of the RAD’s decision wasdismissed. [4] On October 21, 2022, the applicants were issued a direction to report for their removal on November 16, 2022. They requested adeferral of their removal, but that request was denied.

For reasons that are not relevant to the present motion, the removal wassubsequently cancelled. On December 2, 2022, a new direction to report on December 31, 2022 was issued. [5] On December 20, 2022, the applicants again requested a deferral of their removal, invoking their pending H&C application, Ms.Varela’s mental health condition and Gabriel’s best interest. They also included additional documents that were not included in theprevious request for deferral. On December 28, 2022, their request was denied.

The officer found that the grounds invoked by theapplicants did not constitute impediments to removal. [6] The applicants now bring an application for leave and judicial review of the denial of their deferral request. They also bring a motionfor a stay of their removal. II. Analysis [7] 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 [8] 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.

However, when the underlying application targets a decision refusing deferral, themotion for stay of removal seeks the same remedy as the underlying application and is often the final determination of the matter. Inthese circumstances, the first prong of the RJR test is applied more rigorously and the applicant must show “quite a strong case” and notsimply 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]; Ledshumanan v Canada (Public Safety and Emergency Preparedness), 2021 FC 1463 atparagraphs 19–22 [Ledshumanan]. Moreover, as the underlying proceeding is an application for judicial review, the strength of the casemust be assessed having regard to the fact that the applicants must show that the decision challenged is unreasonable.

I refer to Gill vCanada (Public Safety and Emergency Preparedness), 2020 FC 1075 [Gill], for a review of the grounds that typically warrant deferral. [9] The applicants put forward several grounds in support of their request for deferral and this motion for a stay of their removal. Thesegrounds are intertwined in several respects and the emphasis has not always been on the same issue. I will analyze these issues in theorder that appears the most logical.

(1) Risk of Harm in Chile [10] The applicants’ initial submission is that upon returning to Chile, they will again be exposed to harassment and abuse by Gabriel’sgrandfather. On this issue, the officer simply noted that no new evidence of risk had been provided. [11] The applicants’ submission is entirely based on the risk that was assessed by the RPD and RAD. While both tribunals believed thatthe grandfather had been abusive, they found that the applicants could benefit from the protection of the state in Chile.

The applicants donot bring any new evidence refuting these findings. [12] A motion for a stay of removal is not the appropriate forum to seek to overturn an assessment of risk made in the course of adecision concerning refugee status: Medina Cerrato v Canada (Public Safety and Emergency Preparedness), 2018 FC 1231 at paragraph23; Ledshumanan, at paragraph 62. [13] This principle applies even where state protection is at issue. In substance, the applicants are asserting that the grandfather willresume his abuse and that state protection will be ineffective.

I do not want to minimize the seriousness of the acts of the grandfather andI understand Ms. Varela’s fear that it might happen again. However, the primary responsibility for protecting the applicants lies with theChilean authorities. The RPD and RAD concluded that the latter were able to provide such protection. Nothing in the record underminesthis finding.

(2) Psychological Condition [14] The applicants also invoked their mental health condition and provided supporting documentation. [15] The legal principles applicable to allegations of this nature are as follows. This Court is very much aware that removal from Canadacan cause stress and anxiety. As Justice Pelletier once wrote, “To be deported is to lose your job, to be separated from familiar faces andplaces. It is accompanied by enforced separation and heartbreak”: Melo v Canada Minister of Citizenship and Immigration), (FC) at paragraph 23.

To the extent that these are unfortunate, but inherent consequences of removal, this cannot base arequest for deferral: Palka v Canada (Public Safety and Emergency Preparedness), 2008 FCA 165 at paragraph 17. [16] Such situations can justify deferral only where they are beyond the “usual consequences of deportation”: Tesoro v Canada (Ministerof Citizenship and Immigration), 2005 FCA 148 at paragraphs 34–35, [2005] 4 FCR 210.

With respect to health issues, this will be thecase where a serious mental health condition requires emergency treatment; see, for example, Konaté v Canada (Public Safety andEmergency Preparedness), 2018 FC 703. Moreover, a deferral is a temporary measure that is not meant to address long-term or chronicconditions: Gill, at paragraphs 18–19. [17] Applicants who invoke mental health issues will usually provide letters from their treating health professionals.

In all good faith,these professionals often express the wish, or make the recommendation, that their clients be allowed to stay in Canada indefinitely,often on the basis that this would be in their best interest. This may happen, in particular, when a letter written in support of an H&Capplication is used in the context of a motion for a stay of removal. Such letters are often discounted on the basis that they amount to“advocacy” or that they are not neutral. This simply means that it is for the CBSA officer or the Court to decide whether the applicants’condition goes beyond the usual consequences of removal.

The test is not whether staying in Canada is in the best interest of theapplicants. At the hearing of this motion, both parties agreed that the proper approach is for the officer to disregard recommendationsmade to immigration decision makers and to read the letter for what it says about the applicants’ medical condition. [18] Having set out the applicable principles, I can now turn to the officer’s reasons with respect to this issue. They are somewhatdifficult to read. It is unclear whether the officer accepts that Ms. Varela has mental health issues caused by the grandfather’s abuse orother earlier situations.

The officer notes the RAD’s criticism of the psychotherapist’s letter. The officer then analyzes a letter written bythe applicants’ family doctor on November 3, 2022 and finds that it is affected by the same flaws as the psychotherapist’s letter, namely,that some of its findings are speculative and that it strays into advocacy. The officer also notes that the applicants will be supported byfamily and friends upon returning to Chile and that there is no evidence that treatment for their mental health issues will be unavailablethere.

Lastly, the officer reviewed a further letter from the family doctor dated December 19, 2022 and found that it did not addsubstantially to the previous letters. [19] The applicants argue that the officer ignored significant aspects of the evidence before them, in particular the family doctor’sassertion that [Ms. Varela’s] mental health is very fragile at this time as she has a history of PTSD with major depression and anxietysymptoms. She would find it difficult to organize herself to ask for help, while taking care of her son, and trying to providefinancially for him.

It is unlikely she would be able to do all of these things because the executive function it takes to multi-task at this level is impaired. [20] Yet, the officer quoted the first two sentences of this excerpt, and went on to state that the applicants were returning to a countrythey knew, where they would have the support of friends and family, and that there was no evidence that they could not receivetreatment for their mental health issues. Although not elegantly expressed, I take this to mean that the officer found that the mental health

issues identified by the family doctor are within the “usual consequences of deportation,” which, as unpleasant as they may be, do not warrant deferral. Having reviewed the evidence myself, I can find no serious issue with the officer’s conclusion. [ 21 ] I would add that the evidence also suggests that Ms. Varela’s mental health issues were present before she was directed to report for removal and there is no indication that they would be resolved in the few months a deferral may last.

They would thus be long-term issues and, as I mentioned earlier, deferral is not meant to address long-term issues. [ 22 ] In their written submissions, the applicants also allege that they would be “unfit to fly.” This expression refers to a medical condition such that air travel would pose a serious health risk. In this case, there is nothing in the applicants’ medical documentation that would suggest that they are unfit to fly.

(3) Best Interest of the Child [ 23 ] The applicants also asked the CBSA officer to consider Gabriel’s best interest. The officer recited the findings of the first deferral decision, to the effect that there was insufficient evidence that Gabriel’s best interest would not be served in Chile and that he would be reunited with his biological father, a “kind and loving individual.” In an addendum, the officer dealt with a letter dated December 17, 2022 from Gabriel’s grandmother, who described the father as a drug addict who never took care of his son.

The officer stated that this description “may be speculative,” but found that overall, the letter showed that the grandmother would be a highly supportive figure. [ 24 ] At the hearing of this motion, the applicants recast their submissions regarding Gabriel’s best interest to encompass his mother’s mental health issues. If I understand correctly, Ms. Varela’s removal to Chile would cause her mental health to deteriorate, which, in turn, would impair her ability to properly care for her child. However, I found that any impact of the removal upon Ms.

Varela’s mental health falls within the “usual consequences of deportation.” Thus, I am not persuaded that this raises a serious issue with the officer’s conclusion that the best interest of the child does not warrant deferral. [ 25 ] Moreover, having read the grandmother’s letter, I find that the officer’s conclusion that the grandmother would provide support to the applicants is reasonable. [ 26 ] The new evidence regarding the biological father’s absence from Gabriel’s life does not materially change the situation.

Although the officer, perhaps resorting to some form of boilerplate, described Gabriel’s parents, including the father, as “kind and loving individuals,” he or she also noted that the parents had been separated since before Gabriel’s birth. This element does not appear to have played a major role in the decision. [ 27 ] Lastly, as discussed above, a deferral is only meant to address short-term impediments to an applicant’s removal from Canada. The concerns raised regarding the best interest of the child are all tied to long-term issues such as Ms. Varela’s mental health and a lack of adequate support in Chile.

These will not be resolved if the Court defers the removal for a few months. B. Irreparable Harm and Balance of Convenience [ 28 ] As the applicants have not raised a serious issue with respect to the reasonableness of the officer’s decision, it is not necessary to address the two other components of the RJR test. III. Disposition [ 29 ] As the applicants have not met the criteria for a stay of removal, their motion will be dismissed. ORDER in IMM-13240-22 THIS COURT ORDERS that the applicants’ motion for a stay of their removal from Canada is dismissed.

"Sébastien Grammond" Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-13240-22

STYLE OF CAUSE: DIANA NATHALY VARELA GARRIDO, GABRIEL ALEXANDER SANCHEZ VARELA v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: BY VIDEOCONFERENCE DATE OF HEARING: December 30, 2022 ORDER AND REASONS: GRAMMOND J. DATED: December 31, 2022 APPEARANCES : Lisa Winter-Card For The Applicants Rachel Beaupré For The Respondent SOLICITORS OF RECORD : Czuma, Ritter Barristers and Solicitors Toronto, Ontario For The Applicants Attorney General of Canada Ottawa, Ontario For The Respondent