PRINCE LITTLEBEE CHEA Applicant v. THE MINISTER OF PUBLIC SAFETY, 2020 FC 384

Date: 20200314 Docket: IMM-1807-20 Citation: 2020 FC 384 Ottawa, Ontario, March 14, 2020 PRESENT: The Honourable Mr. Justice Roy BETWEEN:PRINCE LITTLEBEE CHEAApplicantandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] Mr. Chea requests from this Court a stay of his removal from Canada to Liberia. The removal is to take place during the week ofMarch 16, 2020. [2] The applicant has a very long criminal history, both as an adult and as a young person, in this country.

He arrived in Canada in May2002 and was granted refugee status: he came from a refugee camp in Guinea and was one of several children brought to this country bya person of Liberian nationality who died a few years later. He was then placed in foster care for the rest of his childhood. It is anunderstatement that Mr. Chea has not had an easy life. That cannot justify, however, the dozens of criminal convictions, including manyviolent offences, he has amassed over the years.

He is now faced with his deportation to his country of nationality which has now issuedthe required travel document. [3] The criminal record eventually resulted in a finding of inadmissibility in Canada, following a report made pursuant to section 44(1)of the Immigration and Refugee Protection Act, S.C. 2001, c 27 [IRPA] on February 11, 2011. A deportation order was issued on March14, 2011. His appeal against the deportation order was dismissed in August 2013. More convictions followed. [4] Because Mr. Chea had been granted refugee status, he benefited from the principle of non-refoulement.

However, if the Minister isof the view that someone who is inadmissible on grounds of serious criminality constitutes a danger to the public in Canada, the saidprinciple of non-refoulement ceases to protect someone who was recognized as a refugee (s. 115 IRPA). A so-called "“danger opinion”,"running for 20 pages, was issued on October 31, 2014. More offences were committed thereafter. [5] On November 6, 2017, the applicant was convicted of trafficking in crack cocaine and sentenced to imprisonment for 303 days.Upon completion of his custodial sentence, Mr. Chea was held pursuant to a warrant issued under

section 59 of IRPA. Since April 24,2018, he remains in detention: the grounds of detention have been reviewed every 30 days, as required by IRPA. [6] The applicant sought for his removal to be deferred by the removals officer on March 9, 2020. By a decision issued on March 11, therequest was denied. That decision is the subject of an application for authorization to launch a judicial review application; Mr.

Chea asksthis Court to stay his removal in view of his application for judicial review in this Court. [7] Once the deferral’s refusal is challenged, in order to obtain a judicial stay, an applicant must satisfy every branch of the tri-partitetest (RJR-MacDonald Inc. v Canada (Attorney General), (SCC), [1994] 1 SCR 311; Toth v Canada (Minister ofEmployment and Immigration), (1988) (FCA), 86 NR 302). Contrary to what is asserted by Mr.

Chea, the well-knowntri-partite test applicable for the issuance of a judicial stay after a deferral has been denied is not that the serious issue that is identified beneither frivolous nor vexatious. The test is significantly higher: 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 ifthe serious issue identified in the underlying judicial review application has the likelihood of success (Wang v Canada (Minister ofCitizenship and Immigration), 2001 FCT 148, [2001] 3 FC 682 [Wang], at para 11; Baron, (supra) at para 66); I note in particularthat, in Wang, the Court found that "“where a motion "for a stay is made from a removals officer's refusal to defer removal, thejudge hearing the motion ought not simply apply the “serious issue” test, but should closely examine the merits of the underlyingapplication.

The test of “serious issue” becomes the “likelihood of success” on the underlying application"”" (para 10). Theapplicant must therefore satisfy the Court of the likelihood of success on the underlying application which calls for areasonableness standard of review. 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? The test requires that must be adduced clear andnon-speculative evidence. Harm likely to be suffered will not do (Canada (Public Safety and Emergency Preparedness) vMohammed, 2019 FC 451, at para 43).

As the Federal Court of Appeal put it, assertions prove nothing. In Gateway City Church vCanada (National Revenue), 2013 FCA 126, the issue is put this way: [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 harm that might result, to use broad, expressive terms that essentially just assert – notdemonstrate to the Court’s satisfaction – that the harm is irreparable. (Stoney First Nation v. Shotclose, 2011 FCA 232 at paragraph 48.) Accordingly, “[a]ssumptions, speculations, hypotheticalsand arguable assertions, unsupported by evidence, carry no weight”: Glooscap Heritage Society v.

Minister of NationalRevenue, 2012 FCA 255 at paragraph 31. [16] Instead, “there must be evidence at a convincing level of particularity that demonstrates a real probability thatunavoidable irreparable harm will result unless a stay is granted”: Glooscap, supra at paragraph 31. See also DywidagSystems 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 84at paragraph 17. (See also, R. v.

Canadian Broadcasting Corp., 2018 SCC 5, [2018] 1 SCR 196, at para 18). It could be possible in some circumstances to prove damage of an irreparable nature by inference. But the basis for inferring damagemust be shown and it must not be one that is inherent in the process. (Newbould v Canada (AG), 2017 FCA 590; 2017 FCA 106, [2018] 1 FCR 590, paras 30-33). 3. It must be shown that the balance of convenience favours an applicant. [8] The removals officer’s decision addresses the issues raised by the applicant: 1.

He has recently discovered that he is bisexual, which will prove problematic if he has to return to Liberia; 2. He has a new (negative) political opinion concerning the government of Liberia; 3.

There have been secret communications between the Liberian government and the Canada Border Services Agency in order toobtain a travel document to Liberia, which creates a "“sur place”" risk in Liberia. [9] The removals officer concludes that there is little weight that can be put on the very recent allegation that the applicant is bisexual:indeed, the allegation emerged only once travel documents were received from the Liberian government.

The recent allegation that theapplicant freshly developed a negative opinion of the Liberian government is not supported by any evidence that he would be seen as apolitical opponent. The claim of a "“sur place”" risk is not substantiated either. The removals officer writes: CBSA has been in communication with the Liberian Government for approximately three years in regards to Mr. CHEA’sremoval from Canada and to obtain a travel document.

This is standard practice of the CBSA when trying to obtain traveldocuments for individuals who do not have the proper documentation to travel and are under a valid removal order. Thisrequires communication between both parties, some of which may be subject to limitations on disclosure. (p. 6) [10] The burden on the applicant was to show that these conclusions are likely to be found to be unreasonable, not merely that theallegations are neither frivolous nor vexatious. The burden has not been met. As for the "“sur place”" risk, the allegation is no better thansheer speculation.

As was shown by the removals officer in the decision, Mr. Chea was interviewed three times by the Liberianauthorities to confirm his nationality. After the first interview, on June 30, 2016, the Liberian Embassy advised CBSA of their belief thatMr. Chea is a Liberian citizen (July 19, 2016). That will explain why the process continued. A second interview took place on September1, 2016.

Finally, the applicant was interviewed a third time on July 24, 2019, in the presence of his counsel; he was advised that theLiberian Embassy was ready to issue a travel document on the basis of their review of the landing documentation and documents fromthe person who took Mr. Chea with her to Canada. In fact, counsel for Mr. Chea was given "“three weeks to provide any evidence thatMr. Chea is not from Liberia”, failing which a travel document for Liberia was to be issued (email of July 25, 2019 reporting on meetingof July 24, 2019; respondent’s motion record, p. 45). No evidence was ever provided." Mr.

Chea speculates about what would amount toa conspiracy to return him to Liberia. There is not any evidence to support that kind of allegation: we are far from any likelihood ofsuccess. [11] The allegations about sexual orientation and adverse political opinion do not fare any better. It is speculation that the Liberiangovernment would ever consider the newly developed adverse opinion of this applicant towards it. Moreover, the applicant has notshown that his newly disclosed bisexuality deserved more than the “little weight” it received from the removals officer.

It takes morethan merely creating new allegations on the eve of removal to make these serious issues, as the notion is defined in our law. Suchallegation borders on the frivolous: it falls significantly short of a likelihood of success required in the circumstances for the decision tobe unreasonable. [12] Considerable time was spent by counsel at the hearing on his request that there be a new “danger opinion” in this case, whichwould have required, in the view of counsel, that the removals officer defer the applicant’s removal.

The applicant, who did not offer hisevidence, wishes to come back on his age and, to some extent, on his nationality. He argues that the “danger opinion” may be different ifis to be factored in that the applicant’s criminal record refers in part to offences that ought to have been prosecuted under the YouthJustice Act instead of the Criminal Code, because he may have been born in 1995 instead of 1990. [13] Mr.

Chea now argues that he may not have been born in 1990 after all, but rather in 1995 as some landing documents suggested.However, the evidence before the removals officer is to the effect that the applicant’s age became an issue as he was being prosecutedunder the Youth Justice Act until 2007. It was therefore determined, through an examination of dental records completed on January 5,2007, that the applicant was not, as of that date, a twelve-year old boy, but rather an adolescent of between the ages of 16 and 18 years

old. The criminal justice system treated the applicant as an adult thereafter, as the removals officer noted several convictions for offences under the Criminal Code from 2008 to 2011. It is on February 11, 2011, when it was considered that the applicant was around 20 years old, that a report pursuant to

section 44 of the IRPA was prepared; it appears that Mr. Chea was serving a sentence for various offences at the time. The report went to the Immigration Division and Mr. Chea went into immigration detention on March 14, 2011. A deportation order was issued the same day. In essence, the applicant argues retrospectively that he was fifteen years old at the time and that was not noted anywhere, including by him. The deportation order was made the subject of an appeal to the Immigration Appeals Division. The removals officer notes that it was accepted that Mr. Chea was a Liberian Citizen and born in 1990.

That was more than six years ago. [ 14 ] Importantly in my view, the applicant offers no evidence whatsoever that in 2002, when he came to Canada, he was a seven year old boy and not a young adolescent. [ 15 ] As I understand it, the applicant claims that a new “danger opinion” is needed because he may have been born in 1995, which could make a difference because a number of offences committed may have been wrongly prosecuted under the Criminal Code : the seriousness of these offences would be diminished if prosecuted pursuant to the Youth Justice Act . This is, to be understated, rather speculative.

The issue was addressed by the removals officer in the following terms: DANGER OPINION You state that Mr. CHEA’s “danger assessment is fundamentally altered by him being removed under the identity of someone born in 1995 as opposed to 1990.” The CBSA believes this to be a clerical error on the part of the Liberian Government. Mr. Chea’s dental records were analysed and it was determined the Mr. Chea was in fact five years older than previously believed. The CBSA has used the year of birth of 1990 since 2011, when this information was shared with the CBSA.

All documentation submitted to the Liberian government in support of our request for a travel document contained the year of birth of 1990. Additionally, you seek a deferral of removal until such time as “a decision has been made on our application for Prince’s Danger Opinion to be reopened”. As stated in the letter provided to your office on 03 Marche 2020 by CBSA Inland Enforcement, Regional Programs Manager Warren DUNCAN, your request to re-open the Danger Opinion for Mr.

CHEA was forwarded to the CBSA – Danger Assessment Section, who ultimately forwarded it to the Immigration Refugee and Citizenship Canada (IRCC( - Case Management Branch for review. The response provided by IRCC indicates that “in this case, the decision was rendered and not litigated by the subject so we will not prioritize the case.” IRCC further states “Requests made by subjects are not a priority and may take several years to be looked at.” I note that as found in

section 7.16 of

Chapter 28 of the IRCC Enforcement Manual, a request for “reconsideration of a danger opinion will not stay the processing of a case, including removal”. Bearing in mind that a deferral is intended to obviate or address temporary practical impediments to removal and is not meant to be a long term reprieve, I find what is truly being requested is an indefinite deferral of removal. IRCC has stated that it may be several years until Mr.

CHEA’s request to re-open the Danger to Public Opinion is reconsidered. [ 16 ] The burden on the applicant was to show that there is likelihood that he will succeed in showing that this decision is not reasonable in that he was not born in 1990. That is despite the examination of dental records, the fact that he has been dealt with by the criminal justice system as an adult since 1998 (there is no evidence that, in fact, he has challenged that state of affairs) as well as by the immigration system and that there is no evidence on his part to the contrary.

He has not even presented any evidence himself, what ever it may have been (school records, foster homes, friends at the time…) that he is five years younger than was determined in 2007. In order to have any likelihood of success, the applicant had to go beyond speculations that may not even have an air reality. Finally, I note that since the original “danger opinion”, criminal convictions continued to accumulate, including aggravated assault, possession of a weapon for dangerous purposes and trafficking in crack cocaine. As a matter of fact, Mr.

Chea has been detained ever since his last conviction in November 2017, as upon completion of the sentence he has been in “immigration detention” to this day. [ 17 ] There has not been on this record a serious issue that has been raised that rose to the appropriate level of likelihood of success that the removals officer’s decision is not reasonable. This is enough to dismiss the motion for a stay of removal to take place during the week of March 16, 2020. [ 18 ] I have nevertheless considered the second prong of the tri-partite test.

Having reviewed the record before the Court numerous times, I have not found any evidence, let alone “evidence at a convincing level of particularity that demonstrates a real probability that an avoidable irreparable harm will result unless a stay is granted.” ( Glooscap (supra), at para 31). Indeed, for a reason that remains completely unknown, the applicant states that this constitutes “removal to a country where she (sic) faces a risk of irreparable harm, namely abuse and/or death” (memorandum of fact and law, para 17). This is not supported by any evidence that could even support an inference to that effect.

This is no more than a general assertion that proves nothing. Assumptions and speculations without evidence carry no weight. The clear and convincing evidence ( Atwal v Canada (MCI) , 2004 FCA 427 ) is nowhere to be found.

[ 19 ] What is clear is that the applicant does not wish to return to his country of nationality. There have been numerous opportunities for him to challenge in the past various issues, some of which he now brings to the fore such as his nationality or his age. That was not done. He has been dealt with as an adult since 2008. He has been interviewed three times by the Liberian authorities since 2016, with a view to establish his nationality. Last July, he and his counsel were invited to provide evidence that he is not from Liberia.

If no evidence were provided, a travel document was to be issued: it was issued in January 2020 and it was received on February 7, 2020. [ 20 ] As for the third prong, the applicant contends that the balance of convenience favours him because of the favourable decision on the other two prongs of the tri-partite test. Furthermore, he claims that common sense dictates that he be allowed to stay to pursue the re- opening of the “danger opinion”. [ 21 ] As already seen, the connection with the “danger opinion” is based on the groundless assertion that the applicant was born in 1995.

That assertion is not based on any evidence and is in fact contrary to the evidence of the dental records, going back to 2007. The applicant has been dealt with as an adult ever since. In 2007, the evidence showed that Mr. Chea was not twelve years old, but rather between 16 and 18 years of age. This is the evidence on this record, uncontradicted by evidence from the applicant. [ 22 ] On the other hand, the Minister argues that there exists the public interest in the enforcement of laws passed by Parliament ( Manitoba (AG) v Metropolitan Stones Ltd , [1987]. SCR 110; Dugonistch v Canada (MEJ), 1992 FCJ No 320 ).

The lengthy criminal record is also a consideration (citing Townsend v Canada (MCI) 2004 FCA 247 ). [ 23 ] In this case, the balance of convenience would favour the respondent in the absence of a serious issue and demonstration of irreparable harm. There is a real and non negligible public interest in the enforcement of laws. Here, a deportation order was issued on March 2011, confirmed on appeal in August 2013, and a “danger opinion” in October 2014 allowed for the return of the applicant to Liberia. These are valid and

section 48 of the IRPA commands a removals officer to remove a foreign national as soon as possible. [ 24 ] As a result, the applicant did not satisfy any of the three prongs of the tri-partite test. He had to satisfy the three of them. It follows that the motion for a stay of the removal of the applicant must be dismissed. ORDER in IMM-1807-20 THIS COURT ORDERS that : 1 .

The motion for a stay of the removal of the applicant is dismissed. “Yvan Roy” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-1807-20 STYLE OF CAUSE: PRINCE LITTLEBEA CHEA v THE MINISTER OF PUBLIC SAFETYAND EMERGENCY PREPAREDNESS PLACE OF HEARING: BY TELECONFERENCE BETWEEN OTTAWA, ONTARIO, Calgary, alberta and edmonton, alberta DATE OF HEARING: march 13, 2020 ORDER AND REASONS: ROY J.

DATED: March 14, 2020 APPEARANCES : Bjorn Harsanyi For The Applicant Galina Bining For The Respondent SOLICITORS OF RECORD : Stewart Sharma Harsanyi Barristers & Solicitors Calgary, Alberta For The Applicant Attorney General of Canada Edmonton, Alberta For The Respondent