2023 FC, 2023 FC 1490

Date: 20231108 Docket: IMM-13439-23 Citation: 2023 FC 1490 Ottawa, Ontario, November 8, 2023 PRESENT: The Honourable Madam Justice Turley BETWEEN: RYAN NICKIE DOUGLAS Applicant and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent ORDER AND REASONS [ 1 ] The Applicant seeks a stay of his removal from Canada to Jamaica, scheduled for November 9, 2023, until his underlying application for leave and judicial review has been determined. For the reasons that follow, I am granting the Applicant’s motion because he has satisfied the three-part test for a stay. I.

Background [ 2 ] The Applicant is a citizen of Jamaica who has been in Canada since April 30, 2011. He was arrested upon arrival for attempting to smuggle cocaine into Canada. He was charged under subsection 6(1) of the Controlled Drugs and Substances Act , SC 1996, c 19 . Those charges were stayed in September 2014. [ 3 ] The Applicant’s applications for refugee protection in 2015 and permanent residency in 2017 and 2021 were all denied on grounds of organized criminality for engaging in transnational crime under paragraph 37(1)(

B) of the Immigration and Refugee Protection Act , SC 2001, c 27 [ IRPA ]. [ 4 ] The Applicant applied for a pre-removal risk assessment [PRRA] in September 2018, claiming that he could not return to Jamaica because he would be killed by the gang that had forced him to smuggle cocaine into Canada.

The PRRA was refused in January 2019 because there was insufficient objective evidence that the Applicant would be targeted if he returned to Jamaica, or that he would not be able to obtain adequate state protection. [ 5 ] Following this unsuccessful PRRA application, the Applicant was scheduled for removal on May 30, 2021, but he failed to appear and a warrant was issued for his arrest. He was arrested almost two years later after providing false identification to the police.

The Applicant was released on bond and was required to reside at the residence of his common-law partner’s mother since she bailed him out. [ 6 ] The Applicant applied for a second PRRA in April 2023 and that application remains outstanding. In support of this PRRA application, the Applicant submitted new supporting evidence from relatives in Jamaica stating that he is at risk of harm from the gang members that forced him to smuggle drugs in 2011.

The evidence submitted addresses alleged events and threats that post-date the first PRRA application. [ 7 ] On September 26, 2023, the Applicant received a Direction to report for removal on November 9, 2023. The Applicant requested a deferral of his removal for one to two months so that his pending PRRA application could be decided. A Canada Border Services Agency [CBSA] Inland Enforcement Officer [Officer] refused the Applicant’s deferral request on October 23, 2023, finding that the Applicant had not presented a new risk. [ 8 ] The Applicant has sought judicial review of the Officer’s decision.

He seeks to stay the removal order pending the Court’s final determination of his judicial review application. II.

Analysis [ 9 ] Motions for stay of removal are determined based on the well-established three-part test for interlocutory injunctions, set out by the Supreme Court of Canada: RJR-MacDonald Inc v Canada (Attorney General) , 1994 CanLII 117 (SCC), [1994] 1 SCR 311 [ RJR- MacDonald ] ; R v Canadian Broadcasting Corp , 2018 SCC 5 [ Canadian Broadcasting Corp ] ; Toth v Canada (Minister of Employment and Immigration) (1988), 1988 CanLII 1420 (FCA), 86 NR 302, 6 Imm LR (2d) 123 (FCA). [ 10 ] Applying this test, the Court must determine whether: (

i) the application for judicial review raises a serious issue; (ii) the applicant will suffer irreparable harm if a stay is not granted; and (iii) the balance of convenience favours granting the stay. All three elements must be satisfied for a stay to be granted: RJR-MacDonald at 334; Toth at para 12 . The three elements are not, however, “ " discrete, watertight compartments " ”, they are interrelated and inform the Court’s overall exercise of discretion in each case: Pimentel Dos Santos v Canada (Citizenship and Immigration) , 2022 FC 765 at para 17 .

(1) Serious issue [ 11 ] In this case, the Applicant must meet an elevated threshold to satisfy the serious issue branch of the test. This is because, if granted, the stay will effectively provide the relief sought in the underlying application, namely the deferral of the Applicant’s removal: Wang v Canada (Minister of Citizenship and Immigration) , 2001 FCT 148 (CanLII) , [2001] 3 FC 682 at paras 8 , 10 [ Wang ]; Baron v Canada (Minister of Public Safety and Emergency Preparedness) , 2009 FCA 81 at paras 66-67 [ Baron ] .

[ 12 ] This elevated threshold requires that the Applicant must establish a “ " likelihood of success " ” or “ " quite a strong case " ” on the underlying application, not simply a serious issue: Wang at para 11 ; Baron at para 67 . In turn, this requires the Court to “ " take a hard look at the issue raised in the underlying application " ”: Baron at para 66 . [ 13 ] The Applicant argues that he submitted compelling evidence that warranted a deferral of his removal until his April 2023 PRRA application was determined.

In support of his PRRA application, the Applicant submitted new evidence from family members about recent threats to the Applicant and his family, to corroborate the ongoing risk that the Applicant faces. All this evidence was submitted with his request to defer his removal to demonstrate “ " that the Applicant was still at risk in Jamaica, despite the findings of the first PRRA officer " ”: Applicant’s Written Representations at para 23.

In addition, the Applicant submitted updated objective evidence of gang violence in Jamaica and the lack of state protection with his PRRA application and deferral request. [ 14 ] The Applicant asserts that the Officer erred in failing to consider and assess this new evidence of a previously assessed risk, and instead, restricted their analysis to whether there was evidence of a new risk: In my capacity as an Inland Enforcement Officer , I may consider submissions which illustrate new risk in temporarily deferring a removal.

It is appreciated that Counsel indicated that some of the affidavits are dated in 2021, 2023 and therefore considered this new evidence. Counsel further indicated that despite the passage of time, that the risk to Mr. Douglas in Jamaica is serious. However, the submissions echo the risk already assessed in the PRRA .

I have read and considered all of the information presented by Counsel and am not satisfied that I have been presented with a new risk : Officer’s Notes, Applicant’s Motion Record, p 148 [Emphasis added]. [ 15 ] Relying on jurisprudence in the context of PRRA applications, the Applicant argues that it was incumbent on the Officer to assess the admissibility of the new evidence in accordance with Raza v Canada (Citizenship and Immigration) , 2007 FCA 385 : Tariq v Canada (Citizenship and Immigration) , 2019 FC 670 at paras 15-17 ; Djordevic v Canada (Citizenship and Immigration) , 2014 FC 13 at para 17 .

In failing to undertake this assessment, the Applicant alleges that the Officer fettered their discretion. [ 16 ] On the other hand, t he Respondent argues that enforcement officers have limited discretion and are not obligated to perform a PRRA. The Respondent asserts that the Officer did consider all the evidence, but that the Applicant failed to establish a new risk that post-dated his negative PRRA decision.

The Respondent’s position is that the Applicant’s new evidence simply updated the evidence he had submitted in the past. [ 17 ] The Respondent relies on the Federal Court of Appeal’s decision in Shpati v Canada (Public Safety and Emergency Preparedness) , 2011 FCA 286 [ Shpati ]. In that case, the officer refused to defer removal because the applicant had not produced evidence of a new risk to which he would be exposed if returned to his country of nationality. The Court of Appeal found that any new risk relied on must have arisen after the PRRA: Shpati at paras 41, 44 .

The issue that arises in this case – new evidence of a previously assessed risk – was not considered in Shpati . [ 18 ] However, this Court has determined that beyond examining a new risk arising after the last assessment, new evidence of a pre- existing risk may warrant deferral: Melay v Canada (Public Safety and Emergency Preparedness) , 2022 FC 1406 at paras 16-18 [ Melay ]; Obaseki v Canada (Public Safety and Emergency Preparedness) , 2021 FC 936 at paras 6-9 [ Obaseki ]; Nayeb Pashaei v Canada (Public Safety and Emergency Preparedness) , 2021 FC 212 at paras 15-16 ; Abdulrahman v Canada (Public Safety and Emergency Preparedness) , 2018 FC 842 at paras 15-16 [ Abdulrahman ] .

As recognized in Melay , not every piece of new evidence warrants deferring removal: Melay at para 17 . [ 19 ] In Obaseki , Justice Grammond addressed the issue of an enforcement officer limiting their analysis to a new risk. Similar to this case, the applicant had submitted new evidence on his deferral request to overcome prior findings that he would not face risk upon return to his country of nationality: Obaseki at para 6 .

The officer rejected the applicant’s arguments because “ " they did not pertain to a new risk " ” and, in doing so, the officer “ " failed to contemplate the possibility that new evidence might overcome previous findings regarding the absence of risk " ”: Obaseki at para 9 . In that case, Justice Grammond determined that the applicant had raised a “ " sufficiently serious issue, " ” or “ " quite a strong case, " ” to warrant a stay of removal: Obaseki at para 9 . [ 20 ] Similarly, in Abdulrahman , Justice Pentney addressed the issue of new evidence that substantiates a previous risk.

He concluded that “ " if there is a good reason why this evidence was not produced before, and it is credible and directly relevant to risk, it must be assessed before the person can be removed” " : Abdulrahman at para 15 . Notably, Justice Pentney also found that the enforcement officer had failed to follow CBSA guidelines: [17] I also find that the Officer has not followed the guidelines set out in the CBSA Operational Bulletin relating to deferral decisions.

This Bulletin was cited in Etienne, and it states that officers are to consider new evidence, noting that “new evidence may substantiate an allegation of risk that was previously considered . Similarly, evidence that pre-dates the last risk assessment may arise for which there are reasons it was not presented before the last risk assessment.” That is precisely the situation here. [Emphasis added] . [ 21 ] In my view, the reasoning in Obaseki and Abdulrahman is equally applicable here.

While the Officer acknowledged that there was evidence that post-dated the first PRRA, they did not consider and assess the new evidence to determine whether it warranted deferral of the Applicant’s removal. The Officer simply determined that the evidence submitted echoed “ " the risks already assessed " ” by the first PRRA officer in 2019.

It appears that the Officer understood his role as being limited to considering “ " submissions which illustrate new risk " ”: Officer’s Notes, Applicant’s Motion Record, p 148. [ 22 ] Based on the foregoing, I am satisfied that the Applicant has established a likelihood of success in the underlying judicial review application. The issue of whether the Officer erred in failing to consider and assess the new evidence of a previously

assessed risk raises a serious issue warranting a stay of the Applicant’s removal.

(2) Irreparable harm [ 23 ] At this second stage of the test, the Court must decide whether a refusal to grant relief could so adversely affect the Applicant’s own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application: RJR-MacDonald at 341. [ 24 ] The potential mootness of an underlying application does not necessarily constitute irreparable harm: Shpati at para 38 . Rather, it is a determination made based on the facts of each case.

Mootness may be sufficient to demonstrate irreparable harm where an applicant has advanced a strong argument on the underlying application: SKGO v Canada (Citizenship and Immigration) , 2023 FC 83 at paras 20 , 23 [ SKGO ]. [ 25 ] Here, the Applicant has established a likelihood of success on the underlying application. As set out above, the Applicant raised a strong argument about the Officer’s failure to consider and assess the new evidence. If the Applicant is removed from Canada, his application will be moot and he will be denied the right to an effective judicial review of the deferral refusal.

In the circumstances, I am persuaded that the loss of the benefit of that application constitutes irreparable harm: Sharifpouran v Canada (Citizenship and Immigration) , 2023 CanLII 101918 (FC) [ Sharifpouran ]; SKGO at paras 20-23 ; Melo v Canada (Minister of Citizenship and Immigration) , 2000 CanLII 15140 (FC) at para 22 . [ 26 ] Furthermore, because the serious issue raised by the Applicant “ " pertains to the assessment of risk " ”, I find that the Applicant has established that removal would expose him to irreparable harm: Obaseki at para 10 ; Abdulrahman at paras 22-24 .

(3) Balance of convenience [ 27 ] This last stage of the test is a weighing exercise. The Court must assess which party would suffer greater harm from the granting or refusal of the stay pending a decision on the merits of the underlying application: Canadian Broadcasting Corp at para 12 . The harm found at the second stage is considered again at this final stage.

However, it is now assessed against other interests that will be impacted by the Court’s decision. [ 28 ] As discussed above, the harm to the Applicant is the loss of a right to an effective judicial review of the Officer’s refusal to defer his removal to Jamaica. As aptly stated by Justice Norris, “ " the interest in ensuring that the applicant retains the right to a meaningful and effective legal remedy is not the applicant’s alone.

It is shared by the public and by the administration of justice " ”: SKGO at para 29 . [ 29 ] The public interest must be taken into account s ince this is a case involving the actions of a public authority: RJR-MacDonald at 350. The Applicant is subject to a valid removal order made pursuant to statutory and regulatory authority. In accordance with subsection 48(2) of the IRPA , an enforceable removal order “ " must be enforced as soon as possible " ”.

It is presumed that a removal order is in the public interest. [ 30 ] In arguing that the balance of convenience favours the Respondent, the Respondent submits that the Applicant does not come to the Court with clean hands. In that vein, the Respondent refers to the Applicant’s 2011 cocaine smuggling charges, his 2021 failure to appear for removal to Jamaica, and his subsequent evasion of CBSA for almost two years. [ 31 ] I agree with the Respondent that disregard for Canadian law and the immigration system are vital considerations in determining where the balance of convenience lies.

However, in this case, the Applicant’s criminal charges are significantly dated and they were ultimately stayed almost 10 years ago. Other than the failure to appear for his removal in 2021, there is no evidence that the Applicant has had any ongoing issues with law enforcement. [ 32 ] There is also no evidence that the Applicant poses a risk to the public. In that regard, I note that the Applicant is not presently in detention.

According to the Applicant, after his arrest in February 2023, he was released on bond and required to live with his common law partner’s mother as a condition of his release: Affidavit of Ryan Nickie Douglas dated October 30, 2023, Applicant’s Motion Record, at para 35 [Applicant’s Affidavit]. [ 33 ] In terms of the Applicant’s failure to appear in 2021, the Applicant states that he did not show up because he was “ " terrified of being forcibly removed to Jamaica " ”.

The Applicant says that he is remorseful for his actions and that he “ " would not have run from Canadian authorities if [he] did not truly fear for [his] life " ”: Applicant’s Affidavit at para 22. While this explanation does not justify the Applicant’s actions, it is consistent with the new evidence submitted alleging ongoing threats to his life if he is returned to Jamaica. [ 34 ] In my view, based on the totality of the circumstances, the balance of convenience weighs in favour of the Applicant in this case.

I am satisfied that the harm that would be caused by immediate removal outweighs any harm that would result from a stay pending the final determination of the underlying application. III. Conclusion [ 35 ] Based on the foregoing, the Applicant has satisfied the three-part test for a stay. The Applicant’s motion for a stay is granted. The Applicant shall not be removed from Canada until his application for leave and judicial review of the Officer’s October 23, 2023 refusal to defer his removal is finally determined. ORDER in IMM-13439-23

THIS COURT ORDERS that: 1 . The motion is granted. 2 . The Applicant shall not be removed from Canada until his underlying application for leave and judicial review is finally determined. “Anne M. Turley” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-13439-23 STYLE OF CAUSE: RYAN NICKIE DOUGLAS v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPARDNESS PLACE OF HEARING: HELD BY VIDEOCONFERENCE DATE OF HEARING: NOVEMBER 7, 2023 ORDER AND REASONS: TURLEY J. DATED: NOVEMBER 8, 2023 APPEARANCES : Richard Wazana For The Applicant Desmond Jung for the respondent SOLICITORS OF RECORD : Wazana Law Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For the respondent