2023 FC, 2023 FC 1696

Date: 20231214 Docket: IMM-14149-23 Citation: 2023 FC 1696 Edmonton, Alberta, December 14, 2023 PRESENT: Mr. Justice Sébastien Grammond BETWEEN:A.B.C.D.ApplicantsandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] The applicants seek a stay of their removal to India. They argue that while in Canada, the male applicant has participated in pro-Khalistan activities. They say that the ensuing risk has never been assessed in the context of their claim for refugee status. I amdismissing their motion because, on the evidence, the risk they allege is purely speculative. I.

Background [2] The applicants are citizens of India. They claimed asylum based on fear of harm from the family of a woman with whom Mr. Singh’sbrother had a relationship, as well as the Punjab police. The Refugee Appeal Division [RAD] of the Immigration and Refugee Board[IRB] dismissed their claim because they had an internal flight alternative within India. They brought an application for leave andjudicial review of the RAD’s decision.

On August 22, 2023, I denied leave. [3] The male applicant alleges that while in Canada, he participated in pro-Khalistan rallies and shared information in this regard onsocial media. The applicants say that, before the RPD, they failed to assert the sur place claim arising from these activities because of theincompetence of their former counsel. When they realized this, they brought a motion pursuant to rule 399 of the Federal Courts Rules,SOR/98-106, to rescind my decision denying leave. [4] Meanwhile, the applicants requested the deferral of their removal.

They relied on the need to wait until this Court decides their rule399 motion, to wait until they qualify to have a pre-removal risk assessment [PRRA] to assess the issues raised by their support ofKhalistan and to wait until their application for relief for humanitarian and compassionate [H&C] considerations is decided. [5] On November 9, 2023, an enforcement officer of the Canada Border Services Agency [CBSA] denied their request. She found thatthey would be ineligible for a PRRA until August 2024.

She noted that the applicants filed their H&C application in August 2023, thatthe average processing time was 20 months and that there were no grounds for deferring removal for such a period of time. With respectto the rule 399 motion, she found that bringing such a motion "“does not grant a stay of removal.”" She acknowledged the applicants’submissions regarding the male applicant’s activities and the social media tracking of Khalistan activists.

However, she found that theywould not be personally at risk of torture or persecution. [6] On November 30, 2023, I dismissed the applicants’ rule 399 motion: AB v Canada (Citizenship and Immigration), 2023 FC 1609. Insubstance, I found that the applicants could have exercised due diligence to find out that their pro-Khalistan activities were relevant totheir refugee claim. [7] The applicants had also sought judicial review of the denial of their request for deferral and asked for a stay of their removal.

Whilethey initially wanted me to decide both motions at the same time, it was agreed that I would decide the rule 399 motion first and that anew hearing would be reconvened to hear the stay motion if needed. The parties agreed to proceed in this way even though the initialremoval date was cancelled and a new date has not yet been set. II. Analysis [8] 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, and R v Canadian Broadcasting Corp, 2018 SCC 5,[2018] 1 SCR 196.

The Court must determine whether: (1) the applicant has shown that the underlying application raises a serious issue;(2) the applicant will suffer irreparable harm if the stay is not granted; and (3) the balance of convenience favours the applicant. A.

Serious Issue [9] It is well established that an officer must defer removal if a new risk, not assessed by previous immigration decision-makers, hasarisen: Peter v Canada (Public Safety and Emergency Preparedness) 2016 FCA 51 at paragraph 7, [2017] 1 FCR 318; Atawnah vCanada (Public Safety and Emergency Preparedness), 2016 FCA 144 at paragraph 22, [2017] 1 FCR 153; Thuo v Canada (Public Safety

and Emergency Preparedness) , 2019 FC 48 . In the present situation, neither the RPD nor the RAD assessed the alleged risk flowing from the male applicant’s activities in Canada. [ 10 ] In fairness to the CBSA officer, she had barely one day to render a decision. Her reasons are succinct. It would appear that she was conscious that the male applicant was asserting a new risk that had never been properly assessed.

She merely stated the conclusion that the applicants would not be personally at risk of torture or persecution. [ 11 ] As the same facts underpin the issue raised against the underlying decision and the allegation of irreparable harm, I prefer to focus on the latter without expressing an opinion as to whether a serious issue is raised. [ 12 ] I also note that the applicants are no longer relying on their submissions regarding the PRRA bar and their H&C application. B.

Irreparable Harm [ 13 ] In substance, the applicants argue that the Indian authorities are likely to discover that the male applicant has become a supporter of the pro-Khalistan movement while in Canada. Given what the country condition evidence reveals about how the Indian police treats persons suspected of supporting Khalistan, this would put him at risk of persecution. [ 14 ] I am unable to agree.

The male applicant has provided little evidence of his involvement in the pro-Khalistan movement, and this evidence is inconclusive as to the possibility that it might have come to the attention of Indian authorities. [ 15 ] The only evidence coming directly from the male applicant is a statement in his affidavit that he " “attended some pro-Khalistan rallies over here and shared some videos during the rallies on Facebook.” " There is no allegation that he participated in the organization of these rallies or that he joined any pro-Khalistan groups. [ 16 ] The applicants also filed screenshots of posts made on Facebook .

The name of the person on the Facebook account is not that of the male applicant and the picture of that person is quite different from a picture that is said to be of the male applicant. Some of the posts include what can be fairly described as Sikh patriotic messages. I am told that one of the posts includes a picture of the applicant, wearing a “Referendum 2020” t-shirt, at a demonstration in the Montreal area. There are also two pictures of the applicant at another event, but there is no indication that these pictures were posted on social media.

No affidavit was filed to explain the context in which these pictures were taken. [ 17 ] There is no direct evidence that the male applicant’s activities have come to the attention of Indian authorities. Even assuming that Indian authorities monitor social media to identify pro-Khalistan activists, it is highly unlikely that the male applicant would be discovered. He did not use his real name and it is not readily evident that the profile picture is his own. There is only one picture of him wearing a t-shirt that would associate him with the pro-Khalistan movement.

An outside observer would be at a loss to identify the person on the picture. Moreover, the male applicant does not allege that he participated in pro-Khalistan activities while in India. He does not allege that he has a profile that rises above that of someone who has occasionally participated in demonstrations. [ 18 ] Thus, the harm alleged by the applicants is speculative. This is not enough to justify a stay of removal. C. Balance of Convenience [ 19 ] As the applicants have not shown that their removal would entail irreparable harm, it is not necessary to assess the balance of convenience. III.

Disposition [ 20 ] For these reasons, the applicants’ motion for a stay of their removal to India will be dismissed. ORDER in IMM-14149-23 THIS COURT ORDERS that 1. The Minister of Citizenship and Immigration is removed from the style of cause. 2. The style of cause is anonymized and the applicants will be referred to as “A.B.” and “C.D.” 3. The motion is dismissed. "Sébastien Grammond" Judge

FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-14149-23 STYLE OF CAUSE: A.B., C.D. v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: BY VIDEOCONFERENCE DATE OF HEARING: December 13, 2023 order and REASONS: GRAMMOND J. DATED: December 14, 2023 APPEARANCES : Meryam Haddad For The Applicants Daniel Latulippe For The Respondent SOLICITORS OF RECORD : Haddad Justice Légale Inc. Montréal, Quebec For The Applicants Attorney General of Canada Montréal, Quebec For The Respondent