2023 FC, 2023 FC 1509

Date: 20231115 Docket: IMM-14260-23 Citation: 2023 FC 1509 Toronto, Ontario, November 15, 2023 PRESENT: Madam Justice Go BETWEEN:Rodicley PIMENTEL DOS SANTOSApplicantandTHE MINISTER OF CITIZENSHIP & IMMIGRATIONRespondent ORDER AND REASONS [1] Mr. Rodicley Pimentel Dos Santos [Applicant] seeks a stay of his removal to Brazil scheduled for November 15, 2023. [2] The Applicant submitted a request to defer his removal to the Canada Border Services Agency [CBSA] dated November 4, 2023[deferral request].

In a decision dated November 10, 2023, an Inland Enforcement Officer [Officer] denied the Applicant’s request todefer the execution of the removal order [Decision]. The Applicant filed an application for leave for judicial review [ALJR] of theDecision on November 10, 2023, and seeks a stay of his removal pending the determination of the underlying ALJR. [3] Having considered the materials filed by the parties, and having heard the submissions of counsel for the parties, I am granting theapplication for a stay. I. Context [4] The Applicant is a citizen of Brazil.

He came to Canada in February 2017 with his then common law partner. The Applicant allegesthat he fled from Brazil to seek protection from persecution and harm as a gay man. Two of his friends were murdered; both were gayand it was believed they were killed because of their sexual orientation. [5] The Applicant and his then partner applied to remain in Canada on humanitarian and compassionate [H&C] grounds in August 2017,which was refused in August 2019. The Applicant and his then partner filed a Pre-Removal Risk Assessment [PRRA] in March 2020 andanother H&C application in April 2020. Both were refused.

The Applicant challenged the H&C refusal with the Court and was granted astay of removal. The Applicant’s judicial review application was settled but the H&C application was subsequently refused in August2023. [6] The Applicant met his current husband after he broke up with his former partner. The Applicant started living with his currenthusband in April 2023 and they became married on November 6, 2023. The Applicant’s husband submitted an application under theSpouse and Common Law Partner Class [inland spousal application] at the end of September 2023.

The inland spousal application wasreturned as incomplete on October 25, 2023. Counsel for the Applicant resubmitted the spousal application on the same date. TheApplicant also submitted an application for Temporary Resident Permit [TRP application] on October 24, 2023. [7] In his deferral request, the Applicant asked his removal be deferred until the inland spousal application is processed, and at theminimum, until the TRP is decided. [8] In the Decision, the Officer noted insufficient evidence that there was an inland spousal application in process.

In a subsequent letterdated November 14, 2023, the Office provided an addendum to the Decision, and acknowledged that the inland spousal sponsorshipapplication was re-submitted. Nevertheless, the Officer affirmed their decision not to defer the removal. II.

Issues and Legal Test for Obtaining a Stay [9] The only issue is whether a stay of removal should be granted in these circumstances. [10] 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, 38 DLR (4th) 321 [Manitoba], RJR-MacDonald v Canada (Attorney General), (SCC), [1994] 1 SCR 311, 111 DLR (4th) 385 [RJR-MacDonald], and R vCanadian Broadcasting Corp, 2018 SCC 5, which is the test to be applied to stays of removal: Toth v Canada (Minister of Employmentand Immigration) (1988), (FCA), 86 NR 302, 11 ACWS (3d) 440 (FCA). [11] A stay of removal is warranted only if all three elements of the test are satisfied, namely: (

i) the underlying application for judicialreview raises a serious issue; (ii) the moving party will suffer irreparable harm if the stay is not granted and the removal order isexecuted; and (iii) the balance of convenience favours the granting of the order. [12] 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 EquustekSolutions Inc, 2017 SCC 34 at para 1. [13] While in many cases, the threshold for the serious issue branch of the test is not high, in cases where the stay is requested followinga refusal to defer removal, a higher threshold applies.

The Applicant needs to demonstrate a “likelihood of success” or “quite a strongcase” in regard to the underlying application for leave and for judicial review: Wang v Canada (Minister of Citizenship andImmigration), 2001 FCT 148, [2001] 3 FC 682 [Wang]; Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009FCA 81, [2010] 2 FCR 311 at para 67; and Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at para 43. III. Analysis A.

Serious Issue [14] The Applicant argues there are several serious issues arising from the Decision. [15] The Applicant needs only to establish at least one serious issue, on the elevated threshold as set out in Wang at para 10. Havingreviewed the Decision, as well as the evidence and submissions put before the Officer, I find the Applicant has done so. [16] Specifically, I find a serious arise from the Officer’s risk assessment.

The Officer limited their risk assessment to the considerationof risk of death or cruelty, while requiring evidence of a personalized risk, not withstanding the Applicant’s profile as a gay man and thepresence of the country conditions evidence of serious risk of violence against gay people in Brazil.

I note that in Pimentel v Canada(Minister of Citizenship and Immigration), 2022 FC 765 [Pimentel], Justice Norris granted a stay of removal based on the Applicant’schallenge to his first H&C application, noting also that requiring the Applicant to provide evidence of a personalized risk ofdiscrimination raises a serious issue: Pimentel at para 22. [17] In arguing there is no serious issue, the Respondent relies on the PRRA decision to note that the PRRA Officer already assessed theApplicant’s risk as a gay man.

The Respondent submits that when an enforcement officer is requested to defer removal after a negativePRRA, any risk relied on must have arisen after the PRRA. The Respondent further submits that the Applicant has not demonstrated thatthe evidence relied on in support of their deferral request is “new” in the sense that it represents a marked change in circumstances inBrazil since the Applicant’s PRRA was determined. [18] I reject the Respondent’s submissions. First, the Officer did not refuse to defer because of the Applicant’s failure to submit “new”evidence of risk.

Second, the Applicant’s PRRA was rejected on June 29, 2021. The Applicant did submit new evidence, includingevidence of his relationship with his husband, and new country conditions evidence about violence against LGBTQ+ people in Brazil.While the Respondent suggests that the risk faced by the LGBTQ+ was higher at the time of PRRA decision, citing the higher number ofdeaths at the time, I note that there is an ongoing obligation on the part of enforcement officers to assess risk prior to removals.

As notedin the country conditions evidence submitted by the Applicant, the rate of physical violence against LGBTQ+ communities remainsextremely high in Brazil. [19] As such, I conclude that the Applicant has met the first prong of the tripartite test. B. Irreparable Harm [20] Irreparable harm refers to harm which cannot be compensated in money; it is the nature rather than the magnitude of the harm that isto be examined: RJR-MacDonald, at 341. In the context of a stay of removal, the harm usually relates to the risk to the individual(

s) ofharm upon removal from Canada. It may also include specific harms that are demonstrated concerning any persons directly affected bythe removal, and who will be remaining in Canada: Tesoro v Canada (Minister of Citizenship and Immigration), 2005 FCA 148. [21] 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. [22] Irreparable harm may arise from a risk to life, liberty, or safety that an 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, 63 ACWS (3d) 912 (CA); Hernandez v Canada (SolicitorGeneral) (1993), 42 ACWS (3d) 892, [1993] FCJ No 950 (QL); Membreno Garcia v Canada (Minister of Employment andImmigration), (FC), [1992] 3 FC 306, 55 FTR 104 (TD) ; Suresh v Canada (1998), (ON SC), 49CRR (2d) 131, 77 ACWS (3d) 163. [23] The Applicant submits that his removal will render the ALJR and the inland spousal sponsorship nugatory, while exposing himdirectly to the risks and harms that led him to leave Brazil in the first place.

The Applicant argues the Court could offer no effectiveremedy given that he would be in another state beyond the jurisdiction of this Court to enforce its judgment. [24] The Applicant also submits that, as a gay man, he faces a significant risk of serious and irreparable harm in Brazil, pointing to hissubmissions in the deferral request and articles about the ongoing threat of violence faced by the LGBTQ+ community members inBrazil. [25] In Matthew v Canada (Minister of Citizenship and Immigration), 2022 FC 924 at para 21, Justice Norris noted as follow: 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 (Solicitor General) , 2005 FCA 42 at para 8 , and Canada (Public Safety and Emergency Preparedness) v Shpati , 2011 FCA 286 at paras 34-38 . [ 26 ] In the circumstances of this case, and given that there is a serious issue concerning the Officer’s assessment of the risk that the Applicant would face upon his removal to Brazil, I find that the potential mootness of the underlying ALJR amounts to irreparable harm. [ 27 ] I also find that, in light of the country conditions evidence showing 45% of LGBTQ+ people have suffered verbal aggression, and 27% reported having suffered physical aggression, the risk of harm to the Applicant should he return to Brazil is non-speculative.

C. Balance of Convenience [ 28 ] 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. [ 29 ] I acknowledge there is a public interest in the prompt removal of persons whose refugee claims have been denied. I also note that the Applicant has had the benefit of two H&C applications and a PRRA application since he came to Canada in 2017.

But I also note that the Applicant did not pursue his challenge of the second refusal of his H&C application due to change in circumstances. Also, the Applicant in this case has no criminal record, nor is there any allegation that he poses a risk to national security. [ 30 ] As the Applicant submits, and I agree, enforcing removal orders is not the only objective at play.

Family reunification also lies at the core of the objectives of Canada’s immigration legislative policies. [ 31 ] Taking into account all the circumstances of the case, including the risk of harm to the Applicant, I find that granting the stay until the underlying ALJR is determined would be just and equitable. The balance of convenience thus lies with the Applicant. ORDER in IMM-14260-23 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 Style of Cause is amended to remove The Minister of Public Safety as a Respondent. "Avvy Yao-Yao Go" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-14260-23 STYLE OF CAUSE: RODICLEY PIMENTEL DOS SANTOS v. THE MINISTER OF CITIZENSHIP & IMMIGRATION PLACE OF HEARING: HELD VIA VIDEOCONFERENCE DATE OF HEARING: November 15, 2023 ORDER AND REASONS: GO J. DATED: november 15, 2023 APPEARANCES : Barbara Jackman For The Applicant Giancarlo Volpe For The Respondent SOLICITORS OF RECORD :

Barbara Jackman Zoe Chong Jackman & Associates Toronto, Ontario For The ApplicanT Attorney General of Canada Toronto, Ontario For The Respondent