KRISHNA BISRAM Applicant v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, 2022 FC 390

Date: 20220319 Docket: IMM-2411-22 Citation: 2022 FC 390 Ottawa, Ontario, March 19, 2022 PRESENT: The Honourable Mr.

Justice Pentney BETWEEN:KRISHNA BISRAMApplicantandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] The Applicant seek a stay of his removal to Trinidad and Tobago, which is scheduled for March 21, 2022, until the finaldetermination of his application for leave and judicial review of the denial of the request to defer his removal. [2] For the reasons set out below, the application for a stay is dismissed. [3] The Applicant is a citizen of Trinidad and Tobago, who entered Canada as a temporary visitor in 2006 and has remained here eversince.

During his time in Canada, the Applicant has accumulated a criminal record that includes convictions for assault, assault with aweapon and theft, as well as a number of breaches of recognizance. In addition, he has had many encounters with the immigrationprocess, including: (

a) a refugee claim (denied); (

b) an appeal to the Refugee Appeal Division (denied); (

c) an application for a Pre-Removal Risk Assessment (denied); (

e) an application for permanent residence on humanitarian and compassionate grounds (denied – hehas applied for leave to seek judicial review of that decision); (

f) a recent previous application for a stay of removal – his removal hadbeen scheduled for December 28, 2021 (denied); and (

g) a request to defer his currently scheduled removal (denied – he has applied forleave to seek judicial review of that decision). [4] The Applicant requested a deferral of his currently scheduled removal so that he could attend a medical appointment on May 9, 2022,relating to a zygomatic arch fracture (a fracture of the cheekbone near the eye), which he says happened when he was assaulted in prisonin 2019.

The Officer found that there was insufficient evidence about the nature and timing of the treatment, why the Applicant hadwaited so long to seek medical treatment, and whether he would be unable to access medical care in Trinidad and Tobago. [5] The Applicant claims that the Officer’s decision is unreasonable, and that he should be granted a temporary stay of his removal sothat he can attend this medical appointment. [6] In considering whether to grant a stay of removal, this Court applies the same test as for interlocutory injunctions.

The Supreme Courtof 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) [7] 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 [Google] at para 1). [8] The three elements of the test are not watertight compartments; they must be considered in their totality, and particular strength onone factor may overcome weakness on another, as long as the claimant satisfies all three elements of the test (Wasylynuk v Canada(Royal Canadian Mounted Police), 2020 FC 962 at para 135; Erhire v.

Canada (Public Safety and Emergency Preparedness), 2021 FC941 at para 50 [Erhire]). A. Serious Issue [9] 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 FCA

130 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. [10] The focus at this stage is whether the Applicants have demonstrated that the CBSA Officer unreasonably failed to exercise thelimited discretion to defer removal under subsection 48(2) of the Immigration and Refugee Protection Act, S.C. 2001, c 27 [IRPA].

TheSupreme Court of Canada has recently confirmed that to be reasonable, a decision must be internally coherent, and it must be justified inlight of the facts and the law: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 101 [Vavilov]. [11] The Applicants claim that the Officer was mistaken in finding that he had not reported his injury any earlier than February 21, 2020;this followed the Officer’s statement that the Applicant had made no submissions to explain why he waited for such a long period of timeto seek medical care following his injury.

The Applicant argues that the Officer unreasonably failed to consider the evidence showingthat he had actually sought medical treatment for his injury as early as September 2018. [12] In addition, the Applicant submits that the Officer failed to consider the report he had submitted on the state of the health caresystem in Trinidad and Tobago. [13] I am not persuaded that the Applicant has met the higher threshold of establishing a serious issue about the reasonableness of thedeferral decision. [14] The evidence is sparse about when the Applicant first reported his facial injury, and whether he has actively sought treatment for it.There are two medical notes that refer to it, but it is not clear whether the injury was the reason he sought treatment, nor what thattreatment might have been.

What is evident is that the Applicant has not demonstrated that the medical problems he now says he isexperiencing have been persistent, nor is there evidence that he has needed urgent care for any of the more significant symptoms that theevidence shows can sometimes be associated with a zygomatic arch fracture. [15] In addition, the evidence produced by the Applicant about the health care system in Trinidad and Tobago is at a high level ofgenerality, and while it does show that the system has problems and limitations, it does not demonstrate that the Applicant would nothave access to medical care if he needs it for his condition. [16] On both of these elements, the internal logic of the Officer’s decision is reasonable in light of the evidence in the record, and thereasoning is clear.

It bears repeating that the assessment of the Officer’s decision must be done in the context of the applicable law, inparticular the limited discretion of officers to defer removal: see Lewis at para 54; Revell v Canada (Citizenship and Immigration), 2019FCA 262 at para 50. It is not the role of the Court on a stay motion (or on judicial review) to re-weigh the evidence. [17] For these reasons, I find that the Applicants have not shown "“quite a strong case”" that the Officer’s decision is unreasonable.

Thisis sufficient for the purposes of this decision, but in view of the arguments advanced by the Applicant, I will briefly address the other twoissues. B. Irreparable Harm [18] Irreparable harm refers to harm which cannot be compensated in money; it is the nature rather than the magnitude of the harm whichis 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 theindividual(

s) of harm upon removal from Canada. It may also include specific harms that are demonstrated in regard to any personsdirectly affected by the removal, and who will be remaining in Canada: Tesoro v Canada (Minister of Citizenship and Immigration),2005 FCA 148. [19] The onus is on the Applicant to demonstrate through clear and non-speculative evidence that he will suffer irreparable harm if she isreturned to Trinidad and Tobago.

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 (Erhire at para 65). [20] In this case, the Applicant argues that he will suffer harm if he is forced to miss his medical appointment scheduled for May 9,2022, and because of the evidence that he will face difficulties in accessing comparable medical care there.

The Applicant indicated inhis deferral request that he experiences pain on a daily basis because of his injury, that he has "“striking pain that makes [his] ears ring”"and that he has "“massive headaches which leave [him] confused and dysfunctional”", that he has loss of memory, feels weak, dizzy,tired and sleepy, and that he has bad balance while walking. [21] I am not persuaded that the Applicant has met his onus of demonstrating irreparable harm, for three main reasons.

First, as notedearlier, the evidence in the record does not demonstrate that the Applicant has consistently sought medical treatment for the conditionshe now reports; at best the medical notes that he has reported some of these symptoms on two or three occasions over the past threeyears.

A key medical note that he relies on is not dated, but it reports that the Applicant had a CT scan which "“reveals a left zygomaticarch fracture of unknown age”" and that he reports that "“he does have some local tenderness there.”" The Doctor referred the Applicantto a maxillofacial surgeon, and concludes: "“Please consider follow-up in the clinic setting.”" This does not indicate an urgent need formedical care to treat debilitating conditions. [22] Second, as noted above, the evidence does not demonstrate that the Applicant will be unable to obtain treatment in Trinidad andTobago.

The fact that the care he has access to there may not be of the same quality as that available in Canada does not, in itself,establish irreparable harm (Adebayo v Canada (Citizenship and Immigration), (FC)). [23] Third, the Applicant’s claim is undermined to some degree by the fact that he very recently sought and obtained a stay of hisremoval from Canada, but there is no indication in that decision that he complained of the types of medical problems he reports in thismatter (see the decision of Justice Pallotta in Court File Number IMM-1950-21, dated December 24, 2021).

Instead, the Applicantargued that he should be able to complete the treatment he had recently begun for alcohol dependency, and also that he should not beremoved pending the determination of his challenge to the denial of his H&C claim. The fact that a few months ago the Applicant sought

a stay of removal but did not rely on his need for medical treatment is not consistent with the case he presented here, and this reinforces my finding that he has not established irreparable harm. [ 24 ] For all of these reasons, I conclude that the Applicant has 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 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 ] In this case, the Applicant has had the benefit of several risk assessments and he has had access to other opportunities to obtain status in Canada.

On the other hand, he also has a significant criminal record, as well as a pattern of evading immigration authorities over many years, and he has not demonstrated an urgent need for medical care to treat a serious condition whose symptoms or impacts may worsen if left untreated for a short period of time. [ 29 ] On balance, the balance of convenience favours the Respondent. II.

Conclusion [ 30 ] Stepping back to consider the evidence and arguments as a whole, I am not persuaded that it would be " “just and equitable” " to grant a stay of the Applicant’s removal ( per Google at para 1 ). [ 31 ] For all of these reasons, the application for a stay of removal is dismissed. ORDER in IMM-2411-22 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-2411-22 STYLE OF CAUSE: KRISHNA BISRAM v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS MOTION HELD VIA TELECONFERENCE ON MARCH 18, 2022, FROM OTTAWA, ONTARIO AND TORONTO, ONTARIO ORDER AND reasons: PENTNEY J. DATED: MARCH 19, 2022 ORAL AND WRITTEN REPRESENTATIONS BY :

Felix Chakirov For The Applicant Andrea Mauti For The Respondent SOLICITORS OF RECORD : Agape Law Barristers and Solicitors Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent