2023 FC, 2023 FC 1737

Date: 20231221 Docket: IMM-15727-23 Citation: 2023 FC 1737 Ottawa, Ontario, December 21, 2023 PRESENT: The Honourable Mr. Justice Roy BETWEEN: SANDRA JUDITH HERNANDEZ GOMEZ ISABELLA MARIN HERNANDEZ Applicants and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent ORDER AND REASONS [ 1 ] The Applicants, the mother and her daughter, seek the stay of their ordered removal to Bogotá, Colombia, scheduled to take place on December 27, 2023. The deferral request to an officer of the Canada Border Services Agency for an administrative deferral of the removal was denied on December 11, 2023.

The deferral request was made on December 6 but the direction to report for removal had been received by the Applicants a month before. The judicial review application of the refusal to deny the administrative deferral constitutes the underlying application for judicial review. [ 2 ] The Applicants, together with three other persons, saw their judicial review application of the refusal of the Refugee Protection Division [RPD] to grant them refugee status be dismissed on June 19, 2023 ( Hernandez Gomez v Canada (Citizenship and Immigration) , 2023 FC 860 ).

The two Applicants in this case have been in Canada since June 2019, having crossed the border with the United States without presenting themselves at a port of entry. The Applicants now raise for the first time a " “new ground of risk” " not raised and considered in their judicial review application. It was raised for the first time before the deferral officer who did not see fit to grant a stay. [ 3 ] The issue raised before the deferral officer concerns the daughter, a minor Applicant, now 16 years old.

I quote from the Applicants’ written representations, at paragraph 2: “Specifically, the Applicants submitted evidence that the minor Applicant … has been questioning her sexual orientation since she was 14 years old. Although she is not prepared to define her sexual orientation at her young age, she provided evidence from her Instagram account showing significant and explicit LGBTQ+ posts over the past 1.5 years since she joined in May 2022”.

The explanation offered for not raising the matter before is that " “the minor applicant only felt comfortable enough to disclose this to the adult Applicant very recently” " (para 3). [ 4 ] An application for permanent residence with humanitarian and compassionate considerations is pending since it was filed on September 13 last. However, the stay motion is only concerned with the judicial review application of the deferral officer’s denial of an administrative stay. I. The decision [ 5 ] The negative decision on deferral considered the three issues raised by the Applicants: A.

Best interests of the child The deferral officer acknowledged that the removal would intervene during the school year. However, the date of December 27 was chosen to allow for the transition from a Canadian school to a Columbian school. The minor Applicant presents report cards that demonstrate an impressive academic achievement; her mother describes her daughter as having " “warrior spirit and charming attitude” " . The process of removal is always challenging but the adult Applicant is highly educated, as are the grandparents.

The young Applicant has demonstrated drive, adaptability, maturity, determination, leadership and advocacy skills: she thrives in new environments and that resiliency will facilitate her integration into society in Colombia. There is no evidence that irreparable harm to her education will ensue as a result of her return to Colombia. There is no evidence that her success in Canada will not be replicated in Colombia.

The officer notes the Federal Court of Appeal decision in Baron v Canada (Public Safety and Emergency Preparedness) , 2009 FCA 81 , [2010] 2 FCR 311, para 69 [ Baron ]: the inevitable consequence of a removal does not constitute irreparable harm; as well in Fecarotta v Canada (Public Safety and Emergency Preparedness) , 2023 FC 317 , a recent decision, the same point is made. The deferral officer stressed that his capacity to grant an administrative stay is limited in that an officer has little discretion to defer removal.

B. Risk The officer considered the risk the minor Applicant would face if she returned to her country of nationality, given the fact that shequestions her own sexual orientation and the treatment received by members of the LGBTQ community in that country. Theofficer noted that the risk was argued to be unassessed in front of him and that, accordingly, the argument is that the removalshould be deferred until the minor Applicant becomes eligible for a pre-removal risk assessment. The eligibility would be in June2024. Presumably the deferral sought would be at least until the PRRA has been completed.

It is accepted seemingly that the other Applicant, the mother of the minor Applicant, was not aware of her daughter’s struggle andwas therefore not able to raise the matter as part of her refugee claim process. Counsel for the Applicants, in raising thequestioning of the sexual orientation, indicated that had been "“only recently disclosed this to the staff advisor of her school’s GayStraight Alliance (GSA), and subsequently to her mother”".

It was said that the minor Applicant "“is now disclosing over 60screen shots taken from her Instagram account, evidencing that over 1.5 years, she has frequently posted LGBTQ content”". Here is how the officer dealt with the "“risk”" facing the minor Applicant: I note that Counsel mentioned the support network Isabella has gained during this questioning period. I am not in receipt ofevidence that Isabella would not have options for support after her removal with respect to this.

I am not in receipt ofevidence that Isabella would not have options to maintain the connections for ongoing support, which she has establishedhere in Canada. I note that she has joined groups on Instagram and have not been provided with evidence that this could notcontinue after removal. I also am not in receipt of evidence that this support would not be available in the manner that bestsuits Isabella during her period of questioning, at a level she is comfortable with.

I have considered that during thepandemic, many mental health providers expanded their practice to include virtual care, affording the family an internationallist of providers, should this be necessary. The officer went on to conclude that there was no evidence that the minor Applicant "“would face a risk during this period ofquestioning in Colombia or that she would not have community to support her”.

Without referring to the information brought tothe attention of the officer, it is stated”": I have not been presented with evidence at a convincing level which demonstrates a real probability of unavoidableirreparable harm, unless a stay is granted. Assumptions, speculations, hypotheticals and arguable assertions, unsupported byevidence, do not meet the threshold to warrant a deferral of removal. There is no explanation as to why the evidence is not at a convincing level meeting the threshold stated.

Instead, the officer notesthree pieces of evidence which, in the view of the officer, show that inclusivity is prevalent in Colombia: The officer noted that the RPD in its ruling of the refugee claim of the Applicants found that the presumption of state protectionhad not been rebutted. Furthermore, the country conditions in Colombia were considered by the RPD and "“Canada continues toremove citizens to Colombia, as it has not been deemed unsafe to do so”". The officer declined to consider the existence of an application for permanent residence filed three months ago.

These do not bringwith them a stay of a removal order, and a decision is neither imminent nor overdue. more than 100,000 people taking

part in a pride parade in Bogotá in July 2023;the constitutional court recognized in 2011 same-sex couples as families, ordering that they benefit from the sameright as heterosexual married couples. In April 2016, the same court made same-sex marriages legal;the mayor of Bogotá, who is a gay woman, was elected in October 2019. C. A pending H&C application II. The stay motion [6] Following a refusal to defer, a judicial review application may be launched, which brings to the fore the enforceable removal order,as was done here.

The Applicants may thus seek a judicial stay of the removal order put into play through the attempt to obtain anadministrative deferral (s 18.2 of the Federal Courts Act, RSC 1985, c F-7). [7] In order to be granted a judicial stay, an applicant must satisfy the three prongs of the well-known tripartite test (RJR – MacDonaldInc v Canada (Attorney General), (SCC), [1994] 1 SCR 311, followed in immigration matters since at least Toth vCanada (Minister of Employment and Immigration), (1988), (FCA), 86 NR 302: 1.

Is there a serious issue to be determined in the underlying proceeding, in this case the judicial review application of the refusal ofthe deferral? 2. Will the applicant suffer irreparable harm if the stay is not granted? 3. Does the balance of convenience favour the applicant? [8] The Applicants have suggested that a strong prong, in this case the serious issue prong of the test, could somewhat compensate aweaker one. I disagree. The three prongs are necessary. [9] The binding jurisprudence of the Federal Court of Appeal commands that the three branches of the test be met. In Janssen Inc v

Abbvie Corporation , 2014 FCA 112 , the Court emphatically refused the proposition that even if one of the three questions can be answered in the negative, it should be possible for a stay to be granted " “in the interests of justice” " . The Court answered at paragraph 14: [14] I disagree. All three questions must be answered in the affirmative. Put another way, Janssen must establish all three requirements. I offer three reasons for this conclusion. It is because " “(e)ach branch of the test adds something important. For that reason, none of the branches can be seen as an optional extra.

If it were otherwise, the purpose underlying the test would be subverted” " (para 19). The requirement for the three branches of the test has been followed extensively through the years, including by the Court of Appeal in Canada (Attorney General) v Oshkosh Defense Canada Inc , 2018 FCA 102 . III. Discussion [ 10 ] The case at bar is a good example of one branch of the test not supporting another, in spite of the first prong being quite strong but not supporting the “irreparable harm” branch of the tripartite test.

Because the Applicants seek the same remedy on judicial review as the stay order, i.e. staying in Canada, the serious issue prong must meet an elevated test.

It is not only that the serious issue be neither frivolous nor vexatious, a low test, but it is rather that the identified serious issue must be shown to have the likelihood of success ( Wang v Canada (Minister of Citizenship and Immigration) , 2001 FCT 148 , [2001] 3 FC 682, or, to put it in the words of the Court of Appeal in Baron , the applicant " “must be able to put forward quite a strong case” " (para 67), especially once one considers that the standard of review is reasonableness.) In other words, the test is elevated and a case will falter if the higher test is not met. [ 11 ] I came to the conclusion that this elevated standard was met in the case at hand.

First, the officer relied on a finding that the conclusion reached by the RPD that the presumption of state protection had not been rebutted was somehow relevant to this case. The problem is that this was said about a risk that was completely different from the risk faced by the LBGTQ community in Colombia. [ 12 ] Second, and more importantly, the officer never engages with the specific evidence of the possible risk facing that community in Colombia.

Instead of considering the evidence presented, the officer speaks of the homosexuality of the newly elected mayor of Bogotá, the pride parade of July 2023 and the judicial recognition of same sex marriages. Instead of considering the evidence, the officer declares that he is not satisfied with the evidence. We do not know why the culture of justification fostered especially since Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , [2019] 4 SCR 653 [ Vavilov ], was not present in the reasons given.

Whether or not the agent is right is not the issue: " “it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision maker to those to whom the decision applies” " ( Vavilov , para 86 ). There is likelihood of success if the judicial review application is heard. [ 13 ] Nevertheless, the mere fact that a decision is not appropriately justified and that the decision maker did not engage, or grapple, with central arguments ( Vavilov , para 128 ) does not bring about irreparable harm.

That must be established on its own. [ 14 ] The Applicants must meet a strict test on the irreparable harm prong, which translates into the real probability that irreparable harm will be suffered if the stay is not granted. Simply claiming irreparable harm or advancing a possibility will not do: it must be more than a series of possibilities, speculations, or hypothetical or general assertions.

To quote from Stoney First Nation v Shotclose , 2011 FA 232, at para 48, " “for those seeking a stay […] to enumerate problems, call them serious, and then, when describing the harm that might result, to use broad, expressive terms that essentially just assert – not demonstrate to the Court’s satisfaction – that the harm is irreparable” " will fall short of the mark every time. [ 15 ] To some extent, we had some of that here.

Counsel insisted that the risk was such that constituted irreparable harm the fact that the Applicants are not eligible for a PRRA until June 2024, or that their H&C application has not been considered yet. [ 16 ] In both cases, this does not qualify as a reason not to be removed from Canada ( Canada (Minister of Public Safety and Emergency Preparedness) v Shpati , 2011 FCA 286 , [2012] 2 FCR 133; Baron ). [ 17 ] The situation of the minor Applicant could have been presented much more forcefully with expert evidence coming in support of the contention that the short-term best interests of this child constitutes an appropriate consideration that irreparable harm will be suffered if removed from Canada. [ 18 ] In my view, the issue with which she is currently wrestling should be considered.

Counsel for the Respondent suggested that the evidence did not clearly demonstrate that she is the one posting various items on an Instagram account, which would tend to corroborate that the person is struggling with her sexual orientation, as the person did not identify other than using a pseudonym without any photograph. I signified that the suggestion, without more, was not appropriate in view of the representations made by counsel for the Applicants from whom more and better is expected as a Member of the Bar.

The evidence of the Applicants should not be impugned on that limited basis. [ 19 ] Accepting that one of the Applicants is currently wrestling with perturbing and significant personal issues, that should be added to the fact that, in the middle of the school year of significant importance, the eleventh grade, the minor Applicant would have to leave the country and re-establish abroad. Finishing a school year is a recognized reason for staying a removal order.

In my estimation, the special circumstances of this case justify the conclusion that the evidence offered satisfies the requirements of the binding case law that there is irreparable harm demonstrated at the required level. [ 20 ] Given the conclusion that there is a serious issue to be determined, that there is irreparable harm if this Applicant is not allowed to complete her 11 th grade without the disruption of having to leave her school and Canada, the Respondent had to offer some countervailing argument to show that the balance of convenience favours the state.

[ 21 ] There is no doubt that s 48 of the Immigration and Refugee Protection Act , SC 2001, c 27 , is a considerable factor to weigh: once a removal order is enforceable, that order must be enforced as soon as possible. That is the public policy endorsed by Parliament. However, the lack of other countervailing factors leaves the Court with the sole conclusion that the balance of convenience favours the Applicants. IV. Conclusion [ 22 ] It follows that the removal of the Applicants for Colombia, set to occur on December 27, 2023, is stayed.

The order of this Court applies to both Applicants in view of the peculiar circumstances of this case. The mother and her daughter should not be separated at this stage. [ 23 ] The stay will remain in place until the end of the minor Applicant’s school year. To be clear, it does not extend to a PRRA having been sought once the Applicants are eligible or an H&C application having been finally considered. This Court order is limited to the end of the school year. ORDER in IMM-15727-23 THIS COURT ORDERS the following: 1 .

The removal order concerning Sandra Judith Hernandez Gomez and Isabella Marin Hernandez is stayed until the end of the school year of Isabella Marin Hernandez. 2 . There shall be no costs awarded. "Yvan Roy" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-15727-23 STYLE OF CAUSE: SANDRA JUDITH HERNANDEZ GOMEZ, ISABELLA MARIN HERNANDEZ v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: HELD BY VIDEOCONFERENCE DATE OF HEARING: December 19, 2023 ORDER AND REASONS: ROY J.

DATED: december 21, 2023 APPEARANCES : Rebeka Lauks For The Applicants Andrea Mauti For The Respondent SOLICITORS OF RECORD :

Rebeka Lauks Barrister and Solicitor Toronto, Ontario For The Applicants Attorney General of Canada Toronto, Ontario For The Respondent