FRIDAY AREMIUNU LION Applicant v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, 2019 FC 77

Date: 20190118 Docket: IMM-138-19 Citation: 2019 FC 77 Ottawa, Ontario, January 18, 2019 PRESENT: Mr. Justice Grammond BETWEEN: FRIDAY AREMIUNU LION Applicant and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent ORDER AND REASONS [ 1 ] Mr. Lion seeks a stay of his removal from Canada scheduled for January 22, 2019. The motion was heard earlier today by telephone conference. I am denying Mr. Lion’s motion, because it is not brought in the context of an underlying application for judicial review that has any chance of success. [ 2 ] Mr.

Lion, a citizen of Nigeria, came to Canada in September 2017 and claimed refugee status. Prior to his arrival, Mr. Lion had begun a relationship with a Canadian citizen, Ms. Mboro. They now have a daughter, born on August 2, 2018, and they married on October 6, 2018. Shortly thereafter, Ms. Mboro filed an application to sponsor Mr. Lion for permanent residence. Mr.

Lion then withdrew his application for refugee status. [ 3 ] A conditional departure order is habitually made against a person who claims refugee status, pursuant to section 44(2) of the Immigration and Refugee Protection Act , SC 2001, c 27 [the Act], and sections 224 and 228(3) of the Immigration and Refugee Protection Regulations , SOR/2002-227 [the Regulations]. However, section 49(2) of the Act provides that a removal order made against a refugee claimant only comes into force 15 days after the claim is rejected, withdrawn or abandoned.

Moreover, under sections 231 and 232 of the Regulations, the enforcement of the departure order is stayed until the final determination of an application for judicial review of the refugee status decision. [ 4 ] In conformity with established practice, a conditional departure order was made against Mr. Lion when he claimed refugee status. That order came into force after Mr. Lion withdrew his claim. In December 2018, an enforcement officer of the Canadian Border Services Agency [CBSA] met Mr. Lion and informed him that CBSA would enforce the departure order and remove him on January 22, 2019. [ 5 ] Mr.

Lion then filed an application for leave and judicial review of the departure order and a motion for a stay of his removal. [ 6 ] This Court’s power to issue a stay of removal is not a free-standing jurisdiction. A stay of removal is an interim measure, made under

section 18.2 of the Federal Courts Act , RSC 1985, c F-7, " “pending the final disposition of the application.” " It can only be issued in the course of an existing application for judicial review, which I will call the underlying application, and is aimed at preserving the status quo until that underlying application is decided. It is not a permanent measure. It is not a manner of obtaining the right to reside in Canada.

As a practical matter, a person who wishes to ask this Court for a stay of removal must first initiate an application for leave and judicial review, and then file the motion for a stay of removal in the same court file. [ 7 ] It may be useful to describe what kinds of underlying applications typically give rise to a motion for a stay of removal. [ 8 ] Motions for a stay of removal may be brought in the context of an application for judicial review of a decision made by an immigration decision-maker. In some cases, however, the Regulations provide for an automatic stay.

Section 231 stays departure orders until a final decision on an application for judicial review of a refugee status determination. With respect to pre-removal risk assessments [PRRA], however,

section 232 provides for a stay until the initial decision is made, but not during an application for judicial review.

Thus, applications for judicial review of a PRRA decision are often the underlying application of a motion for a stay of removal. [ 9 ] It has also been recognized that enforcement officers have a discretion, albeit a narrow one, to defer the removal of a person under section 48(2) of the Act (see, for example, Baron v Canada (Minister of Public Safety and Emergency Preparedness) , 2009 FCA 81 , [2010] 2 FCR 311 ; Lewis v Canada (Public Safety and Emergency Preparedness) , 2017 FCA 130 , [2018] 2 FCR 229). The decision made by the enforcement officer, being an exercise of state power, is reviewable in this Court.

Applications for judicial review of those decisions are usually accompanied by a motion for a stay of removal. [ 10 ] This case, however, is unusual as Mr. Lion’s underlying application does not fall into one of those two categories. [ 11 ] To decide whether a stay of removal should be granted, we apply the three-part test that governs the issuance of interlocutory injunctions.

That test was recently restated by the Supreme Court of Canada in R v Canadian Broadcasting Corp , 2018 SCC 5 at para 12 , [2018] 1 SCR 196: At the first stage, the application judge is to undertake a preliminary investigation of the merits to decide whether the applicant demonstrates a “serious question to be tried”, in the sense that the application is neither frivolous nor vexatious.

The applicant must then, at the second stage, convince the court that it will suffer irreparable harm if an injunction is refused. Finally, the third stage of the test requires an assessment of the balance of convenience, in order to identify the party which would suffer greater harm from the granting or refusal of the interlocutory injunction, pending a decision on the merits. [references omitted] [ 12 ] Mr. Lion’s motion for a stay of removal fails on the first prong of the test. Mr. Lion’s underlying application is for judicial review of his departure order.

As I mentioned above, a departure order is typically issued as a matter of course when someone claims refugee status. It flows mechanically from the provisions of the Act and Regulations. No discretion is exercised and no detailed review of the situation is made. Save in exceptional circumstances, the issuance of a departure order does not raise issues that are amenable to judicial review. I fail to see any reason why the order made against Mr. Lion would be invalid. In any event, an application for judicial review against the order was not made within the 15-day time limit prescribed by

section 72 of the Act and Mr. Lion did not ask for an extension of time. [ 13 ] Mr. Lion’s application for judicial review does not challenge the enforcement officer’s purported refusal of his application for administrative deferral. If that was the only issue, I would have been prepared to allow Mr. Lion to correct his application so that it would target the deferral decision. The problem, however, is deeper – Mr. Lion did not make a deferral request in the first place. In his affidavit, Mr.

Lion states: I requested that the Respondent’s delegate temporarily delay the enforcement of the Departure Order until a decision is taken on my application for permanent residence. [ 14 ] The officer, however, provided an affidavit in which she states: I attended the December 28, 2018 pre-removal interview. During the interview, the applicant confirmed that he understood the instruction given to him. At no time did the applicant ask that his removal be deferred. […] On January 7, 2019, I met with the applicant to give him his updated conditions.

As he was leaving, the applicant advised that he was going to meet with his lawyer to sign some paperwork for his lawyer to take to a judge. At no time did the applicant ask that his removal be deferred. I have reviewed CBSA’s file and note that there is nothing indicating that the applicant made a request for deferral of his removal. [ 15 ] Yet, the officer’s notes of the December 28 meeting show that, when asked whether he was willing to return to his country, Mr.

Lion responded: " “not really as I have a wife and family here, we have applied for sponsorship.” " These statements, however, standing alone, do not constitute an application for deferral. It must be kept in mind that applicants bear the burden of satisfying an enforcement officer that there are serious grounds to warrant deferral: Petrovych v Canada (Public Safety and Emergency Preparedness) , 2009 FC 110 at paras 28–29 .

In those circumstances, the fact that an applicant mentions an unwillingness to leave Canada or issues that, if properly buttressed by evidence, might constitute grounds for deferral, does not require the enforcement officer to conduct further inquiries. Requests for deferral are usually made in writing. While a request could conceivably be made verbally, that does not dispense the applicant from submitting evidence showing the reasons on which his request is made. [ 16 ] Moreover, even if a verbal request had been made, it was incumbent on Mr.

Lion to provide detailed evidence to this Court of the grounds for his request. He did not do so. He cannot now argue that the contradiction between his assertion that he made a verbal request and the evidence of the CBSA officer creates an issue of fact that raises a serious issue. [ 17 ] It follows that Mr. Lion cannot challenge the enforcement officer’s refusal of his request for deferral, because no such request was made. Thus, Mr. Lion’s application for judicial review, even if I were to allow for its correction, does not raise any serious issue. [ 18 ] Hence, Mr.

Lion’s motion for a stay of removal must be dismissed. [ 19 ] I come to this conclusion with some reluctance. I recognize that Mr. Lion has a young daughter who is a Canadian citizen, and that she will be deprived of the day-to-day presence of her father, at least for the time being. However, as I noted earlier, this Court does not have a free-standing jurisdiction to grant people the right to remain in Canada. It can only ensure that their claims have been fairly and reasonably considered by the administrative authorities who are tasked with applying immigration laws. Mr.

Lion simply did not avail himself of the administrative recourses that could have led to further review in this Court. ORDER in IMM-138-19 THIS COURT ORDERS that: 1. The motion for a stay of removal is dismissed. “Sébastien Grammond” Judge FEDERAL COURT

FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-138-19 STYLE OF CAUSE: FRIDAY AREMIUNU LION v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: January 18, 2019 ORDER AND REASONS: GRAMMOND J. DATED: January 18, 2019 APPEARANCES : Idowu Ohioze For The Applicant Keelan Sinnott For The Respondent SOLICITORS OF RECORD : Andrew Law Barristers, Solicitors and Notaries Edmonton, Alberta For The Applicant Attorney General of Canada Ottawa, Ontario For The Respondent