2022 FC, 2022 FC 1806

Date: 20230102 Docket: IMM-13322-22 Citation: 2022 FC 1806 Toronto, Ontario, January 2, 2023 PRESENT: Madam Justice Go BETWEEN:ANA MARIA CASAS CASTILLOApplicantandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] The Applicant Ana Maria Casas Castillo seeks a stay of removal to Mexico scheduled for January 3, 2023.

The motion for stay isbrought as interlocutory relief to an Application for Leave and for Judicial Review of a decision dated December 13, 2022 by aMinister’s Delegate [MD] with the Canada Border Services Agency [CBSA] at the Abbotsford International Airport to issue theApplicant an Exclusion Order [MD’s Decision]. [2] Having considered the material filed by the parties, and having heard the submissions of counsel for the parties, I am granting theApplicant’s motion for a stay of her removal. I. Context [3] The Applicant came to Canada on January 22, 2022 and remained in the country as a visitor.

The Applicant left Canada in or aroundNovember 2022 after a refusal to extend her visitor visa, to seek readmission to Canada as a visitor. [4] Upon her return to Canada on December 6, 2022, the Applicant was interviewed by a CBSA officer. The Applicant was releasedfrom her interview with instructions to report on December 7, 2022 to the Vancouver International Airport. [5] The Applicant did not show up for the December 7, 2022 appointment with CBSA. The Applicant subsequently obtained a medicalletter dated December 11, 2022 advising that she should not travel for two weeks.

On December 12, 2022, a consultant retained by theApplicant contacted CBSA and obtained a deferral of two weeks. [6] The Applicant presented herself at the Abbotsford International Airport on December 13, 2022 for her examination. On the sameday, the Applicant was named in a report under s. 44(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 by the CBSA thatshe is inadmissible for failure to appear for further examination. The report was submitted to a MD.

After interviewing the Applicant,the MD concluded that it was appropriate to issue the Exclusion Order. [7] On December 22, 2022, the Applicant made a request for deferral of her removal scheduled for December 25, 2022, which wascancelled due to weather conditions. The Applicant’s removal was then rescheduled to January 3, 2022. On December 28, 2022, theApplicant requested a deferral of her removal for a period of 35 days, which was denied. II. Preliminary Issue [8] The Applicant relied on an unsworn affidavit to support her stay motion.

At the hearing, counsel for the Applicant provided detailedexplanations as to why the Applicant was unable to make arrangements to swear or affirm her affidavit before a notary during theholiday season. Both parties made submissions on whether the Court should exercise its discretion to hear the motion.

In the end,counsel for the Respondent indicated that he was content to have the Applicant rectify the procedural defects after the fact, should thestay be granted, and agreed to proceed with the hearing based on the unsworn affidavit. [9] The Court would like to acknowledge the cooperation from counsel for the Respondent. III.

Issues and Legal Test for Obtaining a Stay [10] The only issue is whether a stay of removal should be granted in these circumstances. [11] In order to obtain a stay, the Applicant must meet the tripartite test articulated by the Supreme Court of Canada in Manitoba(Attorney General) v Metropolitan Stores (MTS) Ltd, (SCC), [1987] 1 SCR 110 [Manitoba], RJR-MacDonald v Canada(Attorney General), (SCC), [1994] 1 SCR 311 [RJR-MacDonald], and R v Canadian Broadcasting Corp, 2018 SCC 5,which is the test to be applied to stays of removal: Toth v Canada (Minister of Employment and Immigration) (1988), (FCA), 86 NR 302, 11 ACWS (3d) 440 (FCA).

[ 12 ] A stay of removal is warranted only if all three elements of the test are satisfied, namely: (

i) the underlying application for judicial review raises a serious issue; (ii) the moving party will suffer irreparable harm if the stay is not granted and the removal order is executed; and (iii) the balance of convenience favours the granting of the order. [ 13 ] The application of this test is highly contextual and fact-dependent. As the Supreme Court of Canada explained, " “[u]ltimately, the question is whether granting the injunction would be just and equitable in all the circumstances of the case”: " Google Inc v Equustek Solutions Inc , 2017 SCC 34 at para 1 . IV. Analysis A.

Serious Issue [ 14 ] The Applicant submits that there are two serious issues arising from the MD’s Decision. First, the Applicant submits the MD’s Decision violated procedural fairness because the Applicant continued to be asked questions despite being in medical distress during her December 13, 2022 examination. Second, the Applicant argues the MD’s Decision was unreasonable because it was based on an erroneous assumption of the Applicant’s health stability over the preceding days. [ 15 ] I agree with the Applicant that there is a serious issue as to whether the MD Decision violated procedural fairness.

According to the Global Case Management System [GCMS] notes, after a brief introduction of the process by the MD, the following exchange took place between the MD and the Applicant: [MD]: Are you feeling ok right now you don’t look so well? [Applicant]: No, I have a headache and I have problems to breath and I feel dizzy. [MD]: Would you like us to contact an ambulance? [Applicant]: No a doctor told me I had to rest. [MD]: When did you see a doctor? [Applicant]: I don’t remember if it was yesterday or the day before yesterday? [MD]: And the doctor said you were ok to go home and that you should rest? [Applicant]: They did some tests and they told me that I need to go home and rest. [ 16 ] After confirming with the Applicant that she understood the nature of the proceedings and was able to proceed, the MD continued with the interview. [ 17 ] The MD asked the Applicant if she has any reason to fear returning to her country of citizenship.

The Applicant replied, according to the GCMS notes: “In my country and city there is a lot [of] criminality such as extortion and kidnapping”. The MD asked the Applicant if there is anything specific to her that she fears, and the Applicant stated no. [ 18 ] There are further exchanges in the GCMS notes about why the Applicant did not attend the December 7, 2022 interview: [MD]: You stated you didn’t show up because you were sick, were you in the hospital? [Applicant]: When I arrived here and they let me go, I had to wait for somebody to pick me up.

When they got here they found me unconscious and they took me home. I had headaches dizziness and I was vomiting. [MD]: What day did you go to the hospital? [Applicant]: I am sorry but I told you before that I don’t remember the exact date.

My friend has the form from the doctor. [MD]: Is it this form (Doctors note presented) [Applicant]: Yes [MD]: Ok so that note was from December 11 th which was 4 days after you were meant to report to the airport. [Applicant]: All those days I was very sick in bed [MD]: Who were you staying with? [Applicant]: With my friend [MD]: Were they aware you were supposed to report to the airport? [Applicant]: Well I don’t remember if I told her or not but I was very sick when I got out of here? [MD]: Did you make any attempts to contact us to let us know your situation? [Applicant]: Well no because I was drowsy and I couldn’t get up and do anything [MD]: Would you say you are feeling better now than you were or the same? [Applicant]: the same but a little bit less pain in my chest [MD]: [ 19 ] The GCMS notes also indicate that the MD continued to question the Applicant about how she got here and who hired the consultant who contacted the CBSA.

At this point, the Applicant advised that her headache was getting worse. The MD offered the Applicant water, which the latter accepted. The MD then advised the Applicant that she would be issued with an Exclusion Order. After explaining the Exclusion Order and the conditions for release, the MD asked the Applicant if she had anything to add. The Applicant responded, “[o]nly that I don’t feel well, and that I feel numb”. The MD then released her. [ 20 ] Included in the Applicant’s motion record is a Solemn Declaration of Dana Penner, a CBSA officer who was present during the Applicant’s interview with the MD.

According to Officer Penner, the Applicant advised the MD that she had been “in and out” of consciousness since December 6, 2022, and that she was hospitalized. At one point, the Applicant told the MD that “you are trying to confuse me (directed to interpreter)” and “you are confusing and I have headache, I am dizzy”. Officer Penner declared that when the MD asked the Applicant if she needed a break for a few minutes, the Applicant said yes. It is unclear from Officer Penner’s declaration if the MD gave the Applicant any break and if so, for how long.

The GCMS notes were also silent on this point, even though the GCMS notes refer to many non-verbal actions taken during the interview (such as the signing of documents), and presumably could have so indicated if breaks were taken. [ 21 ] The Respondent submits that the absence of any break is not determinative of the issue. I disagree.

The absence of evidence as to whether breaks were taken would undermine the Respondent’s submission that the MD was “cognizant” of the Applicant’s medical conditions, especially since the MD was aware of the Applicant’s expressed concerns about them. [ 22 ] Further, the evidence from CBSA suggests that the Applicant’s state of health may have affected her ability to respond to questions from the MD. Officer Penner declared that the MD asked the Applicant about the medical note, and the Applicant could not remember what it said.

The MD also asked the Applicant why she did not contact the CBSA when she checked out from the hospital on December 11, 2022, to which the Applicant replied, “I am sorry I don’t know what day it is now”. [ 23 ] In the GCMS notes, the MD provided the following reasons for issuing the Exclusion Order:

The subject has claimed to have been sick and unable to attend her furtherance, however she made no attempts to contact CBSA until December 12th, 5 days later. Further, the subject did not see a doctor until December 11th. Subject stated her condition is the same as it was and she was able to retain a consultant and submit a request for a stay of removal on December 12th.

Given that she was able to dothis, she could have reasonably been expected to have contacted CBSA sooner if she was physically unable to attend her furtherance… Ialso considered the evidence presented, including correspondence submitted by her consultant which included a note from her doctor which stated she was unable to travel for 2 weeks dated December 11th. I have also considered Humanitarian and Compassionategrounds that the subject was feeling unwell and that her family is currently in Canada.

Given that the subject did not make any effort tocontact CBSA, yet was able to retain an immigration consultant I do not find this to be sufficient grounds. [Emphasis added] [24] It is clear from the GCMS notes that while the MD did acknowledge and take into account the fact that the Applicant was unwell,the MD considered this as a humanitarian factor as to whether the Exclusion Order should be issued.

The MD’s Decision did not indicatewhether the MD considered if the interview itself should have been discontinued, or at least, been put on pause, in light of theApplicant’s medical condition. [25] The Respondent submits that although the Applicant presented as unwell, she understood the nature and consequences of theinterview, as she demonstrated an understanding of the questions posed and answered them appropriately. [26] However, the GCMS notes indicate that the Applicant did state on several occasions that she was feeling unwell during theinterview, including feeling dizzy, and having a headache and chest pain.

Moreover, the GCMS notes suggest that the Applicant was notable to provide adequate responses to some of the questions, including when she went to see a doctor and whether she advised her friendabout the December 7, 2022 interview with the CBSA, notwithstanding her earlier confirmation that she was “coherent and able toproceed”. [27] According to Officer Penner, the Applicant stated that she was confused, and could not remember what day it was.

Thus, contrary tothe Respondent’s submission, there is some evidence suggesting that the Applicant was experiencing certain medical issues which mayhave impacted her ability to respond appropriately to the MD’s questioning. [28] Based on the above, I find that there is a serious issue as to whether or not the MD ought to have considered discontinuing thequestioning in light of the Applicant’s state of health presented during the interview.

The MD’s failure to consider pausing the interview,when dealing with someone who declared herself feeling dizzy, unwell and confused, could amount to a breach of procedural fairness. [29] I therefore find that the first branch of the tripartite test is satisfied. B. Irreparable Harm [30] Irreparable harm refers to harm which cannot be compensated in money; it is the nature rather than the magnitude of the harm,which is to be examined: RJR-MacDonald at para 64. In the context of a stay of removal, the harm usually relates to the risk to theindividual(

s) of harm upon removal from Canada. It may also include specific harm that is demonstrated in regard to any persons directlyaffected by the removal, and who will be remaining in Canada: see Tesoro v Canada (Minister of Citizenship and Immigration), 2005FCA 148 at para 28. [31] The law requires that irreparable harm be established based on evidence, not assertions or speculation: Atwal v Canada (Citizenshipand Immigration), 2004 FCA 427 at paras 14-15.

However, the test for irreparable harm is also not one of absolute certainty: Suresh vCanada (Minister of Citizenship and Immigration), (FCA), [1999] 4 FC 206 (CA) at para 12. [32] Irreparable harm may arise from a risk to life, liberty, or safety that the individual would be exposed to if removed to their country oforigin: Begashaw v Canada (Minister of Citizenship and Immigration), 2009 FC 462 at para 54, citing Sivakumar v Canada (Minister ofEmployment and Immigration), (FCA), [1996] 2 FC 872 (CA); Hernandez v Canada (Solicitor General), [1993] FCJNo 950 (TD); Membreno-Garcia v Canada (Minister of Employment and Immigration), (FC), [1992] 3 FC 306 (TD);Suresh v R, (ON SC), [1998] OJ No 296, 49 CRR (2d) 131. [33] The Federal Court of Appeal confirmed in Canada (Public Safety and Emergency Preparedness) v Shpati, 2011 FCA 286, that thepotential mootness of the underlying application for judicial review does not, in itself, amount to irreparable harm for the purpose of thetripartite test. [34] I note, however, Justice Norris’ comment in Matthew v Canada (Minister of Citizenship and Immigration), 2022 FC 924 [Matthew]: [21] The potential mootness of the underlying application for judicial review does not necessarily constitute irreparable harm; rather,whether this is so must be determined in the individual circumstances of the particular case at hand: see El Ouardi v Canada (SolicitorGeneral), 2005 FCA 42 at para 8, and Canada (Public Safety and Emergency Preparedness) v Shpati, 2011 FCA 286 at paras 34-38. [22] Where, as is the case here, the Court is satisfied that the applicant has raised arguable grounds for review, this is a sufficient basis tofind irreparable harm.

This is because, if he were to be removed at this time, the applicant would be deprived of the right to a meaningfuland effective remedy in the event that he were to persuade the reviewing Court that the RPD's decision is unreasonable. Even if theargument could be made that, strictly speaking, the application for judicial review would not become moot if the applicant leavesCanada involuntarily (see Jawad v Canada (Citizenship and Immigration), 2021 FC 1262), all this would mean is that the application forjudicial review would not be dismissed on this basis.

From the applicant's point of view, the crucial question is what would happen if hisapplication for judicial review is allowed after he is removed. Setting aside the decision and remitting the matter to the RPD forredetermination would be neither meaningful nor effective relief if the applicant is already in Nigeria. This is sufficient to constituteirreparable harm. [35] I find the reasons in Matthew to be applicable here.

[ 36 ] The Applicant alleges that she faces threats from the Los Zetas cartel in Mexico demanding money from her and her family. The Applicant alleges that Los Zetas came to bother her family at the shop they owned, so they closed the shop. The Applicant further alleges that Los Zetas sent text messages and called them, telling the Applicant and her family that if they did not give them a certain amount of money, they would be killed or kidnapped. [ 37 ] As a result of the Exclusion Order, the Applicant is ineligible to file a refugee claim.

However, if the Exclusion Order was issued because of procedural errors, and the Applicant is removed before the underlying application is dealt with, the Applicant would be unfairly deprived of the opportunity not only to challenge the Exclusion Order, but also to seek protection from the threats she alleges. [ 38 ] As there are serious issues to be tried with respect to the issuance of the Exclusion Order, and in light of the circumstances of the case before me, I find the removal of the Applicant before the underlying application for judicial review is dealt with constitutes irreparable harm. C.

Balance of Convenience [ 39 ] In the third branch of the test, the Court has to consider where the balance of convenience lies, taking into consideration the public interest to be weighed together with the interests of private litigants: Manitoba at paras 34, 38. [ 40 ] The Applicant did miss the December 7, 2022 appointment with the CBSA, but she also attempted to remedy the situation after the fact.

The Applicant has never overstayed her visa in Canada, and there is no information to suggest that the Applicant has any criminal record. [ 41 ] While I acknowledge the public interest in ensuring removals are carried out as quickly as possible, in a case like this, the harm to the Applicant in effecting the removal is far greater than the harm caused by delaying the removal. As such, the balance of convenience favours the Applicant. ORDER in IMM-13322-22 THIS COURT ORDERS that the application for a stay of removal pending the determination of the Applicant’s application for judicial review is granted.

The Applicant is ordered to file a sworn or affirmed version of her affidavit in support of the stay motion by January 16, 2023. "Avvy Yao-Yao Go" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-13322-22 STYLE OF CAUSE: ANA MARIA CASAS CASTILLO v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: HELD VIA VIDEOCONFERENCE DATE OF HEARING: January 2, 2023 ORDER AND reasons: GO J. DATED: January 2, 2023 APPEARANCES :

Sundeep S. Grewal For The Applicant Richard Li For The Respondent SOLICITORS OF RECORD : Sundeep S. Grewal Lawgical Law Corporation Abbotsford, British Columbia For The Applicant Attorney General of Canada Vancouver, British Columbia For The Respondent