IBUKUN OMOTAYO AJILORE AFOLASHADE OMOLARA AJILORE Applicants v. THE MINISTER OF, 2023 FC 206

Date: 20230211 Docket: IMM-1778-23 Citation: 2023 FC 206 Ottawa, Ontario, February 11, 2023 PRESENT: The Honourable Mr. Justice Roy BETWEEN:IBUKUN OMOTAYO AJILORE AFOLASHADE OMOLARA AJILOREApplicantsandTHE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] This is, once again, a motion for a stay of the removal order that comes the day before the execution of the said order.

TheApplicants are to leave for their country of citizenship, Nigeria, tomorrow. [2] A conditional removal order has been in place since November 16, 2017; it has been in force since July 7, 2022. A firstremoval interview was conducted on October 4, 2022, with a second interview taking place on January 13, 2023 when the Applicantswere advised of the departure date of February 12. Yet, it is only on January 23 that an administrative deferral request was made. OnFebruary 3, 2023, an Enforcement Officer found that there is insufficient compelling evidence to warrant a deferral.

It is only one weeklater that the current motion is brought to Court for adjudication. In spite of the lateness of the motion (Singh v Canada (Citizenship andImmigration), 2022 FC 614; Beros v Canada (Citizenship and Immigration), 2019 FC 325, among others), I chose to hear the motion. I. Test [3] In matters of this nature the law is well settled.

An applicant must satisfy the Court that he/she meets the tri-partite test (RJR-MacDonald Inc. v Canada (Attorney General), (SCC), [1994] 1 SCR 311; Toth v Canada (Minister of Employment andImmigration), (1988) (FCA), 86 NR 302). [4] In effect, the applicant must establish each of the three prongs. Failure to establish one will result in the dismissal of themotion for a stay. The three prongs are: 1. Is there a serious issue to be determined in the underlying judicial review application?

In this case, that translates into whether ornot the refusal of a deferral by the Inland Enforcement Officer present a serious issue such that there is a likelihood of success (Wang vCanada (Minister of Citizenship and Immigration), 2001 FCT 148, [2001] 3 FC 682 at para 11; Baron v Canada (Minister of PublicSafety and Emergency Preparedness), 2009 FCA 81, [2010] 2 FCR 311 [Baron]). In the words of the Federal Court of Appeal in Baron,“… for an applicant to succeed on a judicial review challenge of such a decision, he or she must be able to put forward quite a strongcase” (at para 67). 2.

Is there irreparable harm that will ensue if the removal order is not stayed? A general assertion will not do; they cannot establishirreparable harm because they prove nothing. Evidence at a convincing level of particularity is a pre-requisite. 3. The balance of convenience lies with the applicant.

It must be noted the existence of the public interest in the prompt removal ofpersons without status in this country (Omgba v Canada (Public Safety and Emergency Preparedness), 2011 FC 748, among others).Indeed that legislative policy finds its expression in the discretion of a removal officer which is very limited, as reiterated in Lewis vCanada (Public Safety and Emergency Preparedness), 2017 FCA 130, [2018] 2 FCR 22: [54] Deferral requests are typically the last application made by those who are not entitled to remain in Canada. In light of this and ofthe language used by Parliament in

section 48 of the IRPA, directing that removal orders be enforced as soon as possible (or formerly assoon as is reasonably practicable), this Court and the Federal Court have long held that the discretion that an enforcement officer mayexercise is very limited: Shpati, at paragraph 45; Baron, at paragraph 51; Wang v. Canada (Minister of Citizenship and Immigration),2001 FCT 148, [2001] 3 F.C. 682, at paragraph 45; and Simoes v. Canada (Minister of Citizenship and Immigration) (2000), (FC), 187 F.T.R. 219, 7 Imm. L.R. (3d) 141 (F.C.T.D.) (Simoes), at paragraph 12. [55] As this Court noted in Baron at paragraph 49 (citing with approval from the earlier decision of the Federal Court in Simoes):

… the discretion that [an enforcement] officer may exercise is very limited, and … is restricted to when a removal order will be executed.

In deciding when it is “reasonably practicable” for a removal order to be executed, [an enforcement] officer may consider various factors such as illness, other impediments to travelling, and pending H & C applications that were brought on a timely basis but have yet to be resolved due to backlogs in the system. [ 5 ] A request for deferral is not an opportunity to seek to get the Enforcement Officer to conduct a “mini H&C” assessment or to make a pre-removal risk assessment ( Newman v Canada (Public Safety and Emergency Preparedness) , 2016 FC 888 ). II. Facts [ 6 ] The facts of this case are simple.

They can be summarized thus: • The Applicants arrived in Canada on November 8, 2017. They did not present themselves at a port of entry, but rather at the crossing from the United States to Canada known as Roxham Road. They were not in possession of any visa. They sought refugee status; • Their refugee claim was refused on November 13, 2020 by the Refugee Protection Division. Their appeal to the Refugee Appeal Division was also denied. According to the Enforcement Officer, the Applicants’ credibility “has been the major issue at the forefront of their risk claim” (decision of February 3, 2023, p 6/6).

The leave application was dismissed by this Court on June 15, 2021; • The Applicants appear to have been gainfully employed during their five years in Canada. Three applications, in the nature of H&C applications, were denied. One was an H&C application while the other two were Pathway Applications for PSW Workers during the Covid-19 pandemic. They all failed. [ 7 ] These Applicants are in this country without status since their arrival at a place which is not a port of entry. Their attempts at gaining status have all failed.

They have been informed as early as November 16, 2017 that they will have to leave this country if they are unsuccessful in getting status. Indeed that issue has been litigated by them without success. [ 8 ] Their current attempt at litigation is to challenge the decision of the Enforcement Officer to refuse to defer the departure ordered for February 12, 2023. That decision is the subject of a now pending judicial review application (which obviously has not yet been authorized) and the motion before this Court is made pursuant to

section 18.2 of the Federal Courts Act , RSC, 1985, c F-7 . III.

The argument [ 9 ] The Applicants claim that the Enforcement Officer did not make a reasonable decision concerning various arguments made on their behalf: • The officer erred in failing to consider the male Applicant’s participation in the clinical trial in relation to a medical condition from which he suffers; • The officer erred in failing to consider the other Applicant’s high-risk pregnancy; • The officer erred in failing to consider that the Applicants would be able to apply for a pre-removal risk assessment (PRRA) around March 7, 2023; • The officer erred by not considering the Applicants’ work history in Canada as home support worker and personal care attendant. [ 10 ] That, claim the Applicants, satisfies the “serious issue” prong of the tripartite test. [ 11 ] The “irreparable harm” prong is said to be met because there is no need to have absolute certainty.

That is true. On the other hand, evidence at a convincing level of particularity is essential. The evidence must have granularity as well as being clear, convincing and non-speculative. Here, the evidence submitted to the Enforcement Officer, and on which reliance was made to reach a conclusion, was that the female Applicant has had generally difficult pregnancies, requiring caesarean section. Also the male Applicant is followed in dermatology as he suffers from a medical condition about which he has agreed recently to take

part in a study. [ 12 ] Given that there is a serious issue to be determined in the underlying proceedings (i.e. the judicial review application) and there is irreparable harm, it follows, say the Applicants that the balance of convenience favours them. IV. Analysis [ 13 ] In my view, and with respect, the Applicants have not discharged their burden. I fail to see how the issues they raise constitute a serious issue where they are likely to succeed. I am satisfied that he has addressed the issues submitted in a reasonable manner in accordance with the standard set by the jurisprudence.

As the Federal Court of Appeal stated in Baron , not only do applicants have “to put forward quite a strong case” , but that strong case is measured against the standard of reasonableness: “the Judge should also have in mind that the standard of review of an enforcement officer’s decision is that of reasonableness” ( Baron , at para 67 ). [ 14 ] In the case at bar, it is clear that the Enforcement Officer considered the participation in a research study, the higher risk and complicated pregnancy, the PRRA bar expiration (hence the availability of a PRRA) as well as the best interests of the child.

Evidently, the Applicants disagree with the assessment made by the Enforcement Officer. But that is not the burden they have. Rather they have to satisfy the Court that the assessment is likely to be found to be unreasonable, that is that the decision does not bear the “hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal

constraints that bear on the decision” (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 SCR 653 atpara 99). [15] As is well known, the discretion of the Enforcement Officer is very limited (Simoes v Canada (Minister of Citizenship andImmigration), (2000), (FC), 7 Imm. LR (3d) 141 at para 12, endorsed in Baron, at para 49; see also Lewis v Canada(Public Safety and Emergency Preparedness), 2017 FCA 130, [2018] 2 FCR 229 at paras 54-55).

It has not been shown on this recordthat the issues raised by the Applicants have not been fully considered, especially in view of the very limited discretion an EnforcementOfficer has. The issue is not if someone ought to be removed, but rather when.

In Baron, one can read at paragraph 51: - In order to respect the policy of the Act which imposes a positive obligation on the Minister, while allowing for some discretion withrespect to the timing of a removal, deferral should be reserved for those applications where failure to defer will expose the applicant tothe risk of death, extreme sanction or inhumane treatment.

With respect to H&C applications, absent special considerations, suchapplications will not justify deferral unless based upon a threat to personal safety. [16] The Enforcement Officer noted that the participation in the research study was purely voluntary and the male Applicant didnot need to stay in Canada for treatment. That has not been argued as being inaccurate. The PRRA bar is not a reason for deferring aremoval (Shpati v Canada (Public Safety and Emergency Preparedness), 2011 FCA 286, [2012] 2 FCR 133 at para 35).

The Respondentis right that, at any rate, there was not even submissions regarding a new risk that could be considered in a future PRRA application. Asfor the pregnancy, the issue was carefully considered. It has not been shown that the decision was unreasonable, or that there islikelihood that it will be found to be unreasonable given that, in fact, very little was put before the Officer to suggest otherwise. Therewas simply no evidence as to what the risk is or, for that matter, any articulation of it. There was very little to convince the decisionmaker to defer the removal.

We read that “I carefully reviewed the medical documentation provided in the deferral request, and reiteratethat no documentary evidence was presented to show that Ms. Ajilone would be precluded from air travel during removal” (decision, p4/6). That, too, is accurate. I have reviewed the evidence offered by the Applicants. I cannot see how the Enforcement Officer can befaulted in view of the lack of evidence presented. [17] Similarly, there were no submissions concerning the work history of these Applicants. It is not overly surprising. In my view,this is irrelevant once a removal order is in place.

If, as found by the Federal Court of Appeal, the issue about a possible deferral is when,not whether, and deferral is to be reserved for cases where there is risk of death, extreme sanction or inhumane treatment, it is difficult tosee how, except perhaps in truly exceptional circumstances, the work history could have any bearing on whether someone ought to beremoved from the country. Moreover, in view of the very limited discretion left in someone who must conduct the removal as soon aspossible, it is less than clear how much room there could be for such consideration.

At any rate, the matter was not made the subject ofsubmissions that could have been of some assistance. [18] Given that there is no demonstration of a serious issue to be tried on judicial review, that disposes of the motion for a judicialstay. [19] Nevertheless, I would also conclude that there was a lack of evidence of the irreparable harm that must be shown in order tosatisfy the second prong of the tripartite test. The establishment of irreparable harm requires much more than general assertions.

InWestern Oilfield Equipment Rentals Ltd. v M-I L.L.C., 2020 FCA 3, the Federal Court of Appeal reiterated the standard: [11] I begin with the remarks of my colleague Stratas J.A. found at paragraph 24 of his reasons in Janssen, where he sets out hisunderstanding of the second branch of the test: On the irreparable harm branch of the test, the moving party must demonstrate in a detailed and concrete way that it will suffer real,definite, unavoidable harm — not hypothetical and speculative harm — that cannot be repaired later: Stoney First Nation v. Shotclose,2011 FCA 232 at paragraphs 47-49; Laperrière v. D. & A.

MacLeod Company Ltd., 2010 FCA 84 at paragraphs 14-22; Gateway CityChurch v. Canada (National Revenue), 2013 FCA 126 at paragraphs 14-16; Glooscap Heritage Society, supra at paragraph 31; Canada(Attorney General) v. Canada (Information Commissioner), 2001 FCA 25 at paragraph 12. Here again, it would be strange if a litigantcomplaining of harm it caused itself; harm it could have avoided or repaired, or harm it still can avoid or repair could get such seriousrelief.

Similarly, it would be strange if vague assumptions and bald assertions, rather than detailed and specific evidence, could supportthe granting of such serious relief. [My emphasis.] [12] I agree entirely with Stratas J.A.’s understanding of the second part of the RJR-MacDonald test. [20] In Gateway City Church, the articulation of the standard is particularly clear: [14] Such a general assertion is insufficient to establish irreparable harm: Holy Alpha and Omega Church of Toronto v. Canada(Attorney General), 2009 FCA 265 at paragraph 22. That sort of general assertion can be made in every case.

Accepting it as sufficientevidence of irreparable harm would unduly undercut the power Parliament has given to the Minister to protect the public interest inappropriate circumstances by publishing her notice and revoking a registration even before the determination of the objection and laterappeal. [15] General assertions cannot establish irreparable harm.

They essentially prove nothing: It is all too easy for those seeking a stay in a case like this to enumerate problems, call them serious, and then, when describing the harmthat might result, to use broad, expressive terms that essentially just assert – not demonstrate to the Court’s satisfaction – that the harm isirreparable. (Stoney First Nation v. Shotclose, 2011 FCA 232 at paragraph 48.) Accordingly, “[a]ssumptions, speculations, hypotheticals andarguable assertions, unsupported by evidence, carry no weight”: Glooscap Heritage Society v. Minister of National Revenue, 2012 FCA255 at paragraph 31.

[16] Instead, “there must be evidence at a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result unless a stay is granted” : Glooscap, supra at paragraph 31. See also Dywidag Systems International, Canada, Ltd. v. Garford Pty Ltd. , 2010 FCA 232 at paragraph 14 ; Canada (Attorney General) v. Canada (Information Commissioner) , 2001 FCA 25 , 268 N.R. 328 at paragraph 12 ; Laperrière v. D. & A.

MacLeod Company Ltd. , 2010 FCA 84 at paragraph 17 . [My emphasis.] [ 21 ] I agree with my colleague Gascon J. that there are no authorities “to support a proposition that this oft-repeated requirement ought not to apply in the immigration area” ( Ledshumanan v Canada (Public Safety and Emergency Preparedness) , 2021 FC 1463 at para 57 ). [ 22 ] There is no evidence of irreparable harm in this case that comes close to the required standard where there is granularity. There is no clear and convincing evidence. Stating something is not proving it. It does not suffice to invoke a risk.

Here the evidence does not rise beyond a general statement of risk. There is no evidence at a convincing level of particularity demonstrating a real probability. [ 23 ] Finally, the third prong is not satisfied either. Parliament spoke when it provided in the Immigration and Refugee Protection Act , SC 2001, c 27 , that a removal order “must be enforced as soon as possible” ( section 48(2) ). There is therefore a public interest in protecting the integrity of the immigration system which calls for removal as soon as possible.

In the absence of countervailing circumstances such as a serious issue to be tried or irreparable harm, the balance of convenience favours the government. ORDER in IMM-1778-23 THIS COURT ORDERS: 1. The motion for a stay of execution of a removal order scheduled for execution on February 12, 2023 is dismissed.

"Yvan Roy" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-1778-23 STYLE OF CAUSE: IBUKUN OMOTAYO AJILORE AFOLASHADE OMOLARA AJILORE v THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: HELD BY VIDEOCONFERENCE DATE OF HEARING: FEBRUARY 11, 2023 ORDER AND REASONS: ROY J. DATED: FEBRUARY 11, 2023 APPEARANCES : Ariel Hollander For The ApplicantS Aman Owais For The respondents SOLICITORS OF RECORD :

Lewis & Associates Toronto, Ontario For The ApplicantS Attorney General of Canada Toronto, Ontario For The respondents