ABDULKEDIR AHMED JAMA Applicant v. MINISTER OF PUBLIC SAFETY, 2020 FC 369

Date: 20200313 Docket: IMM-1757-20 Citation: 2020 FC 369 Ottawa, Ontario, March 13, 2020 PRESENT: The Honourable Mr. Justice Roy BETWEEN:ABDULKEDIR AHMED JAMAApplicantand MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] The applicant, Abdulkedir Ahmed Jama, seeks from this Court a stay of his removal to Somalia scheduled originally for March 16,2020. The Court was advised earlier today that a new direction to report on March 23 has been issued. The removals officer refused topostpone his departure by a decision of March 6.

That decision is challenged on judicial review; in support of the judicial reviewapplication, the applicant seeks a stay until the judicial review is finally disposed of. [2] In essence, the removals officer finds that there exists little discretion to defer a removal that is valid. There was no evidence of thecompelling circumstances that could be sufficient to exercise such discretion. [3] Mr. Jama has an extensive criminal record in the United States where he was granted asylum (sponsored by the United Nations) afterhaving left Somalia in 1991 in particularly difficult circumstances.

The criminal record indicates convictions for progressively moreserious offences from 2000 to 2013. His permanent residence in the United States was revoked in 2013 and, according to the recordbefore this Court, he was issued a removal order for Somalia in 2014. [4] He chose to cross the border into Canada, in Manitoba, on September 15, 2017. The crossing was illegal as he did not go through aport of entry and he was apprehended by the RCMP. He was released on bail on September 19 and made a refugee claim in Canada.However, he is ineligible to be considered a refugee (s. 36(1)(

b) of the Immigration and Refugee Protection Act, S.C. 2001, c 27 [IRPA]).A deportation order was eventually issued on January 30, 2018. Since then, the applicant submitted a pre-removal risk assessment(PRRA) application that was dismissed. His judicial review application of the PRRA decision was also dismissed by this Court onNovember 19, 2019 ("2019 FC 1459", Diner J.). [5] The removals officer addressed seriatim the various issues raised by the applicant in his request for a stay: The best interest of the applicant’s children: the applicant left in the United States his two children, aged 7 and 4 years old.

Theolder child suffers from lymphoblastic leukemia for which he is treated in Columbus, Ohio, where he resides with his mother. Theapplicant claims that he offers emotional and financial support from Toronto where he currently resides. The removals officerfound that the American social programs are accessible (the wife and children are American citizens). Although the separation offamily always constitutes an unfortunate emotional situation, it is inherent to the removal process. Furthermore this applicantrecently asked for his criminal rehabilitation and he has also made an H&C application.

If these are meritorious, he would bepermitted to come back to Canada. Risk in Somalia: the PRRA application has already been dismissed by a PRRA officer and this Court has seen fit to declare thedecision reasonable. The ability to intervene is limited to assessing whether the evidence is compelling such that the removal oughtto be delayed in view of a new risk or new evidence of risk that post-dates the PRRA decision. The risk has been assessed in thePRRA litigation. Hardship in Somalia: the skills as a truck driver acquired by the applicant are transferable.

At any rate, the evidence wasinsufficient to conclude that Mr. Jama would not be able to find employment in Somalia. Furthermore, the applicant has known forsome time about his precarious immigration situation in Canada, which gave him time to prepare for his departure. Pending criminal rehabilitation and H&C application: the nature of a deferral is that it is temporary in order to alleviate exceptionalcircumstances. Both recourses are recent and it is not possible for a removal officer to speculate on the outcome of these.Moreover, these can be pursued from outside Canada.

As a result, the deferral was refused. [6] Once the deferral’s refusal is challenged, in order to obtain a stay, an applicant has to satisfy the Court of the three-prong test alreadyvery well known (RJR-MacDonald Inc. v Canada (Attorney General), (SCC), [1994] 1 SCR 311; Toth v Canada(Minister of Employment and Immigration), (1988) (FCA), 86 NR 302): 1. Is there a serious issue to be debated in the underlying judicial review application?

In cases like this one concerned with a stay of aremoval order, the Court is instructed by the Federal Court of Appeal that it must have in mind the limited discretion conferred ona removals officer and that the standard of review on judicial review is reasonableness (Baron v Canada (Minister of Public Safetyand Emergency Preparedness), 2009 FCA 81, [2010] 2 FCR 311 [Baron], para 67). It follows that a stay may be granted only if

the serious issue identified in the underlying judicial review application has the likelihood of success ( Wang v Canada (Minister of Citizenship and Immigration) , 2001 FCT 148 , [2001] 3 FC 682 [ Wang ], at para 11 ; Baron , ( supra ) at para 66); I note in particular that, in Wang , the Court found that " “where a motion " for a stay is made from a removal officer's refusal to defer removal, the judge hearing the motion ought not simply apply the “serious issue” test, but should closely examine the merits of the underlying application.

The test of “serious issue” becomes the “likelihood of success” on the underlying application " ” " (para 10). The applicant must therefore satisfy the Court of the likelihood of success on the underlying application. The likelihood of success is on the facts and the law. 2 . Is there irreparable harm that will be suffered if the motion were to be dismissed? 3 . Where does the balance of convenience lie? [ 7 ] The applicant raises four issues in his attempt to argue that there is a serious issue to be tried. A fifth one was raised at the hearing.

In my view, none rises to the level that it can be said that it is likely to succeed. (

a) Deferral should have ben granted because the risk was not adequately assessed in the PRRA application [ 8 ] This submission is surprising. The PRRA decision was the subject of a judicial review application decided less than four months ago. Now, the applicant argues that his submissions were not adequate in view of the risk of persecution he would face if removed to Somalia.

The applicant relies on the fact that the Court found that there was " “thin evidence presented with the PRRA” " . [ 9 ] However, if the applicant seeks to suggest that the Court was thereby signaling that there was stronger evidence available, this is not an inference that can be made. Obviously, Diner J. was simply commenting that the case against the applicant was overwhelming, in spite of the commendable efforts of the (then) counsel for Mr. Jama. I reproduce in its entirety paragraphs 25 where we find the words the applicant relies on: [25] Ms.

Anani, the Applicant’s counsel for this judicial review, made every effort to advocate for her client despite not representing him in the proceedings below. After turning over every possible stone, there ended up being little that she could do in light of the reasonableness of the Decision given the deference the Court owes the Officer, and in light of the thin evidence presented with the PRRA. We are evidently very far from a statement which suggests that more and better evidence was available. None was presented on this motion.

This is even more so when one considers paragraph 24, which reads: [24] In addition, I note that this Court has recently upheld at least four negative PRRA decisions of Somali citizens who lost their asylum status in the United States on the basis of serious criminality, were perceived as westernized, and came to Canada seeking protection ( Mohamed v Canada (Citizenship and Immigration) , 2019 FC 522 ; Farah v Canada (Citizenship and Immigration) , 2018 FC 1162 ; Ahmed v Canada (Citizenship and Immigration) , 2019 FC 80 ; Mohamed v Canada (Citizenship and Immigration) , 2019 FC 139 ).

In these cases, the Court also found the underlying decisions reasonable, with the same or similar arguments having been made regarding country conditions, threats to perceived westerners, lack of family, and length of time away from Somalia . [My emphasis.] [ 10 ] As can be seen, the same type of arguments made herein has been rejected. A new PRRA is neither necessary nor appropriate, assuming that it would be possible or that there is new evidence. At any rate, no such new evidence has been proffered, as noted by the Minister (

b) Pending criminal rehabilitation application [ 11 ] The applicant seems to surmise that his rehabilitation application, submitted on March 1, 2020, should be sufficient to defer his removal from Canada. It is less than clear how that should be the case in view of the fact that H&C applications or pending PRRA litigation do not have such an effect ( Baron ( supra ), paras 50-51; Canada (Public Safety and Emergency Preparedness) v. Shpati , 2011 FCA 286 , [2012] 2 FCR 133 , paras 34-35 ). There is no reason that has been offered to consider that there is an obligation to defer removal in such circumstances.

Indeed there may be many months before the matter is addressed, without any reason to believe this application could be successful.

In Forde v Canada (Public Safety and Emergency Preparedness) , 2018 FC 1029 , 63 Imm L.R. (4 th ) 4 , the Chief Justice of this Court explained why late applications such as this one or an H&C application, should not be an appropriate basis for deferral: [40] To permit a person to avoid removal from Canada by filing a spousal sponsorship or an H&C application shortly before the scheduled removal, or indeed well after being notified that he or she is subject to removal, would be contrary to the principles articulated in Lewis and the jurisprudence cited therein.

Pursuant to that case law, a removals officer is not entitled to defer removal where a decision on an outstanding application is unlikely to be imminent: Baron , above, at para 80 ; Newman v Canada (Public Safety and Emergency Preparedness) , 2016 FC 888 , at paras 28-34 [ Newman ] ; Singh v Canada (Public Safety and Emergency Preparedness) , 2016 FC 403 , at para 7 . Moreover, a removals officer does not have the discretion to defer removal to an indeterminate date: Baron , above, at para 80 ; Fatola v Canada (Public Safety and Emergency Preparedness) , 2018 FC 479 , at para 33 .

Rather, the “special considerations” that may warrant deferral must be associated with the impending or imminent removal being challenged and cannot be more than temporary in nature: Canada (Public Safety and Emergency Preparedness) v Shpati , 2011 FCA 286 , at para 45 ; Newman , above, at para 33 .

In this context, the word “temporary” cannot be construed as including a deferral of indeterminate or lengthy duration. [41] The exercise of discretion to permit a person to avoid removal in circumstances that go beyond the very limited situations described above would also be inconsistent with the plain language and the underlying spirit of subs. 48(2) of the

IRPA, which requires that removal orders be enforced “as soon as possible.” My conclusion on this latter point is reinforcedby the fact that in 2012, Parliament substituted the “as soon as possible” wording for the prior “as soon as is reasonablypracticable” wording. In so doing, it clearly communicated an intention to significantly limit the temporal scope of aremovals officer’s discretion to defer, and to reduce that discretion from what it previously had been. That in my view is an adept description of the state of the law. (

c) Pending H&C application [12] The same can be said of the H&C application which was made less than two weeks ago. The case law, which is said to be in a casesimilar to that before the Court where a deferral was granted (Bonil Acevedo v Canada (Public Safety and Emergency Preparedness),2007 FC 401), has since been overtaken by Baron (supra), which is binding on this Court. (

d) Short-term best interest of the children [13] Here, the applicant contends that the removals officer did not consider the short-term interest of the two children. He claims toprovide for emotional and financial support for his family. [14] The applicant is right that it is the short-term interests of the children that are relevant for the removals officer. But the respondentis equally right that there is scant evidence of the support alleged to be offered. I have carefully reviewed the record and I asked at thehearing if something was missed.

For starters, the applicant left his family to enter illegally in Canada; they live relatively far from eachother (six-hour car ride from Columbus to Toronto). Most importantly, there are no details concerning the emotional support and, fromthe evidence offered, the financial support is limited to $ 2,400 between August 2018 and March 2019, plus $ 200 in February 2019,more than a year ago.

According to the applicant’s own record in this case, he appears to have worked as a truck driver from July 2018 toDecember 2019, but was unemployed from July 2017 (where he arrived in Canada) to July 2018 and is unemployed since January. It isobviously for the applicant to present evidence if he is to contend that he is providing that kind of support. That was not done. [15] It is inaccurate to suggest that the removals officer did not consider the best interests of the children. It is just that there was verylittle evidence to consider and whatever evidence was considered in a fair and sensitive manner.

Indeed, the applicant’s argument quicklymoves into long-term best interests of the children. There was no argument made as to what, in the short term, will be the effect onchildren in the circumstances of this case where the applicant has already been absent for more than 2 ½ years.

The treatment given tothe interests of the children in this case meets in my view the requirements accepted by the Federal Court of Appeal, where the Courtquoted at length from Munar v Canada (Minister of Citizenship and Immigration), 2005 FC 1180, [2006] 2 FCR 664 [Munar] in Lewis vCanada (Public Safety and Emergency Preparedness), 2017 FCA 130, [2018] 2 FCR 229, at para 59.

I note in particular the reference inMunar to the enforcement officer satisfying himself that provisions have been made for the child being left in the care of others inCanada, a matter that was addressed by the removals officer in the decision. [16] As indicated before, the applicant must show a likelihood of success in his argument that the decision of the removals officer wasnot reasonable. The evidence offered in support of a deferral was simply very thin.

None of the issues raised rose to the required level.The Court is called upon to assess the decision of the removals officer, not to substitute its own view of the matter (Canada (Minister ofCitizenship and Immigration) v Vavilov, 2019 SCC 65, at para 83). The judicial stay may be granted if there is a serious issue to bedebated on judicial review: the record did not show how these issues might succeed, let alone have the likelihood of succeeding. [17] At the hearing, counsel for the applicant raised that Mr. Jama may still be a refugee in the United States.

As such he should not bereturned to his country of nationality. [18] There are many reasons why such an argument ought not to be entertained. First, it was not raised before the removals officer oreven in the instant motion for a judicial stay. Thus, the respondent could not even address the new issue (audi alteram partem). Second,there is no evidence on this record of what the applicant’s status is in the United States. He states in his recent application for criminalrehabilitation that "“I arrived in Canada from the United States (US) because I lost my permanent resident status in the US due to mycriminality.

I came to Canada for fear of being deported to Somalia, a country that is in war and chaos, and a country that I have not seensince I was a little child”" (Motion record, p. 231). This is consistent with the Notice of Arrest issued after Mr. Jama was arrested onFebruary 27, 2019 on being served his negative PRRA decision (with a direction to report for removal from Canada on March 6, 2019).In the said Notice of Arrest, it is noted that the applicant received his permanent residence in the United States after he was grantedrefugee status, but the permanent residence was revoked in 2013.

A removal order was then issued in 2014 (Respondent’s Motion record,p. 18). It was for the applicant to establish his status in the United States if he is to make an argument that it carries any weight.

That wasnot done, including before my colleague Diner J., or before this Court. [19] Thirdly, (1) in view of the absence of evidence, (2) the fact that the argument was not articulated to allow the respondent anopportunity to respond adequately and (3) the fact that the argument is at this stage only rudimentary, without any authority in support, itis not possible to conclude to its likelihood of success (or, for that matter, that it is not frivolous); it cannot meet the "“serious issuetest”". The argument presented in extremis cannot succeed. [20] It follows that there is no serious issue.

The tripartite test being conjunctive, the motion for the stay must be dismissed. [21] Had I have to consider the other two prongs, I would have concluded that the applicant failed both. On irreparable harm, theapplicant argued that it is preferable for both parents to raise children. Surely, the very nature of the discretion conferred on a removalsofficer does not allow such consideration, which is obviously not of a limited duration. The oft quoted passage from Melo v Canada(Minister of Citizenship and Immigration), (FC), [2000] F.C.J.

No. 403, (2000) 188 FTR 39, at para 21 isparticularly apposite: If the phrase “irreparable harm” is to retain any meaning at all, it must refer to some prejudice beyond that which is inherentin the notion of deportation itself. To be deported is to lose your job, to be separated from familiar faces and places. It is

accompanied by enforced separation and heartbreak. [ 22 ] The applicant fled the United States because he feared deportation. But the public interest in Canada also commands that he be removed from this country where he has been without status since July 2017. IRPA requires that the removal order be enforced " “as soon as possible” " . There are no countervailing arguments, supported be clear and convincing evidence, that have been offered in this case. It follows that the balance of convenience favors the removal of this applicant. [ 23 ] As a result, the motion for a stay of the removal order must be dismissed.

ORDER in IMM-1757-20 THIS COURT ORDERS that : 1 . The motion for a stay of the removal to the applicant’s country of origin, Somalia, scheduled for March 23, 2020, is dismissed. “Yvan Roy” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-1757-20 STYLE OF CAUSE: ABDULKEDIR AHMED JAMA v MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: BY TELECONFERENCE BETWEEN OTTAWA, ONTARIO AND TORONTO, ONTARIO DATE OF HEARING: MARCH 12, 2020 ORDER AND REASONS: ROY J.

DATED: march 13, 2020 APPEARANCES : Barbara Jackman For The Applicant Sally Thomas For The Respondent SOLICITORS OF RECORD : Issa Law Office Barristers & Solicitors Toronto (Ontario) For The Applicant Attorney General of Canada Toronto (Ontario) For The Respondent