PATRICIA IBHANESBHOR, PAULA IBHANESBHOR, PETRIN IBHANESBHOR, DAVID IBRANESBHOR, PHILYA IBHANESBHOR, DANIEL IBHANESBHOR, PHOBE IBHANESBHOR Applicants v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, 2020 FC 42

Date: 20200113 Docket: IMM-158-20 Citation: 2020 FC 42 Ottawa, Ontario, January 13, 2020 PRESENT: The Honourable Mr.

Justice Pentney BETWEEN: PATRICIA IBHANESBHOR, PAULA IBHANESBHOR, PETRIN IBHANESBHOR, DAVID IBRANESBHOR, PHILYA IBHANESBHOR, DANIEL IBHANESBHOR, PHOBE IBHANESBHOR Applicants and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent ORDER AND REASONS [ 1 ] The Applicants seek a stay of their removal to Nigeria, which is scheduled for January 14, 2020, until the final determination of their application for leave and judicial review of the denial of their request to defer their removal. [ 2 ] For the reasons set out below, I am dismissing the application for a stay. I.

Context [ 3 ] The Applicants are citizens of Nigeria who travelled to the United States on vacation in 2017. They then came to Canada and claimed refugee status based on a fear that the minor female children would be subjected to female genital mutilation if they returned to Nigeria. [ 4 ] The Applicants’ claim for refugee status was dismissed by the Refugee Protection Division (RPD) on October 3, 2018, because the RPD concluded that they had a viable internal flight alternative. This finding was upheld by the Refugee Appeal Division (RAD) on March 14, 2019 .

The Applicants’ application for leave and judicial review of that decision was dismissed by this Court on September 24, 2019. [ 5 ] The Applicants received a call-in notice from the Canada Border Services Agency (CBSA) on November 20, 2019, requesting that they present themselves at a CBSA office on November 28, 2019 to receive departure details for their removal to Nigeria. Since then, they have made two requests that their removal be deferred. They have also been advised that their removal was scheduled for January 14, 2020. [ 6 ] The first deferral request was submitted on November 26, 2019.

The Applicants asked that their removal be deferred so that they could submit an application for a Pre-Removal Risk Assessment, and so that their application for Humanitarian and Compassionate relief could be processed. This request was refused on December 10, 2019. [ 7 ] The second deferral request was submitted on January 8, 2020. This raised a new issue concerning the risk the Applicants claim to face upon return to Nigeria, arising from the death of the Primary Applicant’s father in 2012 and more recent threats indicating that the persons who killed her father were still seeking to harm the family.

The Primary Applicant’s mother has fled Nigeria and claimed refugee status in Canada, largely based upon these threats. This deferral request was refused on January 10, 2020. [ 8 ] The Applicants have filed an application for leave and judicial review of this decision, as well as this application for a stay of their removal. II. Issue [ 9 ] The only issue is whether a stay of removal should be granted in these circumstances.

III. Analysis [10] In considering whether to grant a stay of removal, this Court applies the same test as for interlocutory injunctions. The SupremeCourt of Canada recently restated the test as follows: At the first stage, the application judge is to undertake a preliminary investigation of the merits to decide whether theapplicant 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 isrefused.

Finally, the third stage of the test requires an assessment of the balance of convenience, in order to identify the partywhich would suffer greater harm from the granting or refusal of the interlocutory injunction, pending a decision on themerits. (R v Canadian Broadcasting Corp, 2018 SCC 5 at para 12, references omitted) [11] This three-pronged test is applied to applications for stays of removal in the immigration context : Toth v Canada (Minister ofEmployment and Immigration), (1988) 86 N.R. 302, (FCA). The application of this test is highly contextual and fact-dependent.

It bears repeating that the Supreme Court of Canada has recently emphasized that “[u]ltimately, the question is whethergranting the injunction would be just and equitable in all the circumstances of the case.” (Google Inc. v. Equustek Solutions Inc., 2017SCC 34, [2017] 1 S.C.R. 824 at para 1). A. Serious Issue [12] In many cases, the serious issue branch of the test is not a high threshold.

However, in cases where the stay is requested following arefusal to defer removal, it has been found that a higher threshold applies, which requires the Applicant to demonstrate a “likelihood ofsuccess” or “quite a strong case” in regard to the underlying application for leave and judicial review (Wang v Canada (Minister ofCitizenship and Immigration), 2001 FCT 148, [2001] 3 FC 682; Baron v Canada (Minister of Public Safety and EmergencyPreparedness), 2009 FCA 81, [2010] 2 FCR 311 at para 67; Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA130 at para 43 [Lewis]).

This is because granting a stay of removal is tantamount to granting the relief sought in the underlyingapplication for leave and for judicial review, namely a deferral of removal. [13] The focus at at this stage is whether the Applicants have demonstrated that the CBSA officer unreasonably failed to exercise thediscretion to defer removal under subsection 48(2) of the Immigration and Refugee Protection Act, S.C. 2001, c 27 [IRPA].

The SupremeCourt of Canada has recently confirmed that to be reasonable, a decision must be internally coherent, and it must be justified in light ofthe facts and the law: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 101 [Vavilov]. [14] The Applicants claim that the officer made findings that were speculative and arbitrary in regard to their claimed fear of persecutionin Nigeria.

They say the officer failed to take into account the objective information, that the Primary Applicant’s father had beenmurdered and her mother has recently fled Nigeria due to ongoing issues related to her father’s murder.

In addition, the Applicants arguethat the officer failed to give sufficient consideration to the claim that the Primary Applicant was a material witness who should bepermitted to remain in Canada to testify at her mother’s refugee hearing. [15] The officer reviewed the procedural history of the Applicants’ case, as described above, and then noted that the most recent deferralrequest was based on a claimed fear that had not been advanced in previous hearings. The officer then reviewed the police report thatwas submitted in support of this claim, and found that it was lacking in details.

Although the author purports to be aware of the specificsabout the dates, times, nature of the incidents of threats against the mother and the Primary Applicant, as well as the names of at leastsome of the perpetrators, and these are mentioned in a general way in the police report, no specifics are provided. The report alsocontains numerous grammatical errors.

The officer gave this report little weight, and in the absence of any other information to supportthe Applicants’ fears, found that there was insufficient evidence to support the claim. [16] In regard to the argument that the deferral should be granted so that the Primary Applicant could testify at her mother’s refugeeclaim, the officer notes that paragraph 44(1)(

f) of the Refugee Protection Division Rules, SOR/2012-256, allows a witness to testify bymeans of telecommunication (teleconference or videoconference).

The officer found that the Primary Applicant did not need to be inCanada in order to testify. [17] The Applicants contend that both aspects of the officer’s decision are unreasonable, because relevant evidence was ignored ordiscounted, and the officer failed to give due consideration to the risks the Applicants face upon return to Nigeria, and to the advantagesof allowing the Primary Applicant to give in-person testimony in support of her mother’s refugee claim. [18] I am not persuaded that the Applicants have met the higher threshold of establishing a serious issue in regard to the reasonablenessof the deferral decision. [19] The officer’s decision reflects a consideration of the evidence, but also an evaluation of it in light of the prior refugee claimsadvanced unsuccessfully by the Applicants.

Furthermore, the officer analyzes the evidence that was filed, and finds that it is insufficientto support the Applicants’ claimed fears, on a balance of probabilities. The internal logic of the officer’s decision is plain and obvious,as is the analysis of the facts in the context of the applicable law, in particular the limited discretion of officers to defer removal: seeLewis at para. 54; Revell v. Canada (Citizenship and Immigration), 2019 FCA 262 at para 50.

It is not the role of the Court on a staymotion (or on judicial review) to re-weigh the evidence. [20] For these reasons, I find that the Applicants have not shown “quite a strong case” that the officer’s decision is unreasonable. This issufficient for the purposes of this decision, but in view of the arguments advanced and the interests of the Applicants, I will brieflyaddress the other two issues.

B. Irreparable Harm [ 21 ] Irreparable harm refers to harm which cannot be compensated in money; it is the nature rather than the magnitude of the harm which is to be examined: R.J.R. MacDonald , at p. 135. In the context of a stay of removal, the harm usually relates to the risk to the individual(

s) of harm upon removal from Canada. It may also include specific harms that are demonstrated in regard to any persons directly affected by the removal, and who will be remaining in Canada: Tesoro v Canada (Minister of Citizenship and Immigration) , 2005 FCA 148 . [ 22 ] There is considerable overlap between the evidence and arguments on the first issue and those relating to irreparable harm, and I will not repeat my earlier analysis.

The law requires that irreparable harm be established based on evidence, not assertions or speculation: Atwal v Canada (Citizenship and Immigration) , 2004 FCA 427 . [ 23 ] For the reasons outlined in relation to the “serious issue” analysis, I find that the evidence in the record before me does not meet the standard. The police report is vague on details, and on its face does not support a claim that the Applicants face any current or recent threats from anyone who may have harmed the Primary Applicant’s father in 2012.

There is no other evidence to corroborate her claims in this regard, and no evidence about the specifics of her mother’s refugee claim, which might have bolstered her claim by providing relevant details. [ 24 ] For these reasons, the Applicants have not established irreparable harm. C.

Balance of Convenience [ 25 ] In view of the findings above, I find that the balance of convenience weighs in favour of the Respondent. [ 26 ] There can be no doubt that Canada has an interest in the prompt removal of persons whose refugee claims have not been upheld (as articulated in s. 48(2) of IRPA ), and that this is not merely a matter of administrative convenience; it goes to the wider public interest in ensuring confidence in the integrity of the immigration program as a whole: Vieira v Canada (Public Safety and Emergency Preparedness) , 2007 FC 626 ; Selliah v Canada (Citizenship and Immigration) , 2004 FCA 261 at para 22 . [ 27 ] On the other hand, Canada has an important interest in ensuring that it respects fundamental rights and freedoms, including the fundamental right to have one’s risks assessed in a manner that respects the principles of fundamental justice.

This includes ensuring the fulfillment, in a substantive and meaningful way, of the obligations Canada has undertaken both through the Canadian Charter of Rights and Freedoms and by its adherence to international human rights obligations, most particularly here the Convention Relating to the Status of Refugees . [ 28 ] That is done, in the circumstances of cases such as this, by an officer assessing the risks alleged in the context of a deferral decision. That is a legal requirement on officers where the risks have not been assessed by a prior decision-maker.

This is precisely what was done here, and in reasons that are clear and persuasive, the officer demonstrates why the evidence in support of the claimed fear of persecution was insufficient. No other evidence was filed before the Court. [ 29 ] I find that the balance of convenience lies with the Respondent. IV. Conclusion [ 30 ] For all of these reasons, I am dismissing the application for a stay of removal. ORDER in IMM-158-20 THIS COURT ORDERS that the application for a stay of removal pending the determination of the Applicant’s application for judicial review is dismissed. "William F.

Pentney" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-158-20

STYLE OF CAUSE: PATRICIA IBHANESBHOR, PAULA IBHANESBHOR, PETRIN IBHANESBHOR, DAVID IBRANESBHOR, PHILYA IBHANESBHOR, DANIEL IBHANESBHOR, PHOBE IBHANESBHOR v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS MOTION HELD VIA TELECONFERENCE ON JANUARY 13, 2020, FROM OTTAWA, ONTARIO AND TORONTO, ONTARIO ORDER AND reasons: PENTNEY J. DATED: January 13, 2020 ORAL AND WRITTEN REPRESENTATIONS BY : Laurence Cohen For The Applicants David Knapp For The Respondent SOLICITORS OF RECORD : Laurence Cohen Barrister and Solicitor Toronto, Ontario For The Applicants Attorney General of Canada Toronto, Ontario For The Respondent