FARAH ABALLAHI Applicant v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPARDNESS, 2018 FC 576

Date: 20180601 Docket: IMM-2483-18 Citation: 2018 FC 576 PRESENT: The Honourable Mr.

Justice Brown BETWEEN: FARAH ABALLAHI Applicant and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPARDNESS Respondent ORDER UPON motion on behalf of the Applicant for an Order to stay removal scheduled for June 4, 2018, pending the disposition of anapplication for leave to apply for judicial review, and if leave is granted, the disposition of judicial review of a decision [“Decision”] of aCBSA Enforcement Officer [“Officer”] dated May 24, 2018, who refused to defer the Applicant’s removal; AND UPON hearing from counsel at a teleconference, and considering the submissions made; AND UPON CONSIDERING that to succeed on a motion to stay enforcement of the removal order, the Applicants must meet therequirements of a tripartite test set out by the Federal Court of Appeal in Toth v Canada (Minister of Citizenship and Immigration), (FCA), [1988] FCJ 587, 86 NR 302 (FCA), and by the Supreme Court of Canada in RJR-MacDonald Inc. v Canada(Attorney General), (SCC), [1994] S.C.J.

No. 17, [1994] 1 S.C.R. 311, and more recently in R v CanadianBroadcasting Corp, 2018 SCC 5 at para 12 [CBC], namely that there is a serious issue to be tried, that the Applicants would sufferirreparable harm by reason of deportation and that the balance of convenience lies in the Applicant’s favour; AND UPON CONSIDERING that on the serious issue branch of the test the Applicant in respect of a refusal to defer must, in addition,meet a higher threshold pursuant to the decision of the Federal Court of Appeal in Baron v Canada (Minister of Public Safety andEmergency Preparedness), 2009 FCA 81, which requires this Court to take a hard look at the Applicants’ case and decide if theunderlying application is likely to succeed, i.e., to decide whether there is quite a strong case.

Of this I am not persuaded, but willconsider the next part of the test; AND UPON CONSIDERING that the onus is on the Applicant to demonstrate, through clear and convincing non-speculative evidenceof irreparable harm that the extraordinary remedy of a stay of removal is warranted: Atwal v Canada (Minister of Citizenship andImmigration), 2004 FCA 427 [Atwal].

In my view the harm in relation to his family in Canada is part and parcel of removal, and while Iam very sympathetic, unfortunately it does not amount to harm that meets the required test as set out in long-standing jurisprudence fromthis Court and the Federal Court of Appeal. The harm in his home country is speculative. I am not satisfied irreparable harm favours theApplicant; AND UPON CONSIDERING the balance of convenience, in my view again this does not favour the Applicant. He made his case tothe RAD in 2014. Judicial review was dismissed by this Court.

In my respectful view the balance of convenience favours the Minister. THIS COURT ORDERS that the motion to stay is dismissed. “Henry S. Brown” Judge