YOSEPH FITWI GEBRU Applicant v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, 2019 FC 45

Date: 20190114 Docket: IMM-253-19 Citation: 2019 FC 45 Ottawa, Ontario, January 14, 2019 PRESENT: Mr. Justice Grammond BETWEEN: YOSEPH FITWI GEBRU Applicant and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent ORDER AND REASONS [ 1 ] Mr. Gebru brings a motion for a stay of his removal from Canada scheduled for tomorrow, January 15, 2019. The motion was heard earlier today by teleconference. I dismiss the motion, because Mr. Gebru failed to demonstrate any error in the enforcement officer’s refusal to defer his removal. In particular, Mr.

Gebru failed to show that there was any significant change in the risk he would face upon his return to Ethiopia in the period following his latest risk assessment. I. Facts and Underlying Decision [ 2 ] Mr. Gebru is a citizen of Ethiopia. He describes himself as an ethnic Tigrean. After having spent three years in the United States, he came to Canada in 2010 and claimed asylum.

He asserted that he was a political opponent to the Ethiopian government and that, as a result of his political views, he had been arrested, tortured and kept in jail for several months in 2005. [ 3 ] The Refugee Protection Division [RPD] of the Immigration and Refugee Board dismissed his claim on October 30, 2012. [ 4 ] Subsequent to the RPD decision, the risks faced by Mr. Gebru upon his return to Ethiopia were assessed on more than one occasion through the pre-removal risk assessment [PRRA] process. His first PRRA application was denied on July 18, 2014, but this Court set aside that decision.

A new PRRA decision was rendered on September 29, 2015, again dismissing his application. This time, this Court dismissed an application for judicial review ( Gebru v Canada (Citizenship and Immigration) , 2016 FC 667 ). [ 5 ] However, on July 27, 2016, the Canadian government announced that, given recent developments in Ethiopia, it would allow Ethiopian nationals who received a negative RPD or PRRA decision in the preceding year to apply for a new PRRA. Mr. Gebru availed himself of that possibility, but his application was again dismissed on September 15, 2017.

An application for leave and judicial review against that decision was dismissed. [ 6 ] In support of his latest PRRA application, Mr. Gebru asserted that he has taken

part in the activities of Unity for Human Rights and Democracy, an organization of the Ethiopian opposition in Canada. As a result, he says he is at risk of being targeted by the government upon his return to Ethiopia. However, the PRRA officer concluded that Mr. Gebru did not play an important role in the organization, participated in events attended by a large number of people and, for that reason, would not have come to the attention of the Ethiopian government.

The PRRA officer also acknowledged the difficult human rights situation in Ethiopia, in particular the tendency of the security forces to use excessive violence against protesters. The officer noted, however, that those conditions could not be linked to Mr. Gebru’s individual situation. [ 7 ] On December 28, 2018, Mr. Gebru was advised that his removal would take place on January 15, 2019. On January 4, 2019, he made an application for an administrative deferral of his removal. This application was denied on January 12, 2019. [ 8 ] Mr.

Gebru has brought an application for leave and judicial review against the refusal of his request for administrative deferral. In the context of that application, he brought the present motion for a stay of his removal. II. Analysis [ 9 ] The Immigration and Refugee Protection Act , SC 2001, c 27 [the Act], does not require a judicial authorization to remove a foreign national from Canada. In that sense, a stay of removal is an exceptional remedy, as it interferes with the normal administrative process prescribed by Parliament in

section 48 of the Act. [ 10 ] The statutory basis for a stay of removal is found in

section 18.2 of the Federal Courts Act , RSC 1985, c F-7, which provides that this Court may make interim orders pending the final disposition of an application for judicial review. In granting such relief, we apply the same test as for interlocutory injunctions. The Supreme Court of 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 the applicant 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 is

refused. 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, [2018] 1 SCR 196, references omitted) [11] This three-pronged test is well-known. It had been set out in earlier decisions of the Supreme Court (Manitoba (Attorney General) vMetropolitan Stores Ltd., (SCC), [1987] 1 SCR 110; RJR — MacDonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR 311 [RJR]).

It was also applied in the immigration context in Toth v Canada (Minister of Employment andImmigration), (FCA). Of course, the application of this test is highly contextual and fact-dependent. A. Serious Question to be Tried [12] In RJR, the Supreme Court stated that the "“serious question to be tried”" criterion is a relatively low threshold (RJR at 337).However, the Supreme Court also said that a more demanding test must be applied where the interim relief sought has the practical effectof deciding the underlying action (RJR at 338-339).

This is the case where an application for judicial review is brought against a decisionof an Enforcement Officer refusing to defer removal. In that context, a motion for stay of removal gives the applicant what he or she isasking for in the underlying application. For that reason, the Federal Court of Appeal stated that the applicant must show “quite a strongcase” (Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 at paras 66-67 [Baron]), keeping inmind that the applicable standard of review on the merits is reasonableness.

(1) New Risk [13] Mr. Gebru first argues that his request for deferral should have been allowed because of the new risks he faces upon return to hiscountry. [14] Enforcement officers have a quite narrow discretion to defer removal. One of the situations where they may do so is where a newsituation has arisen that exposes the person being removed to a risk that was not previously assessed.

That situation was described byJustice Dawson of the Federal Court of Appeal in Savunthararasa v Canada (Public Safety and Emergency Preparedness), 2016 FCA 51at para 7, [2017] 1 FCR 318: It is common ground that, based upon jurisprudence of this Court, when evidence of some new risk is put forward, anenforcement officer may defer removal when the failure to defer will expose the person seeking deferral to a risk of seriouspersonal harm.

More specifically, an enforcement officer may defer removal where an applicant establishes a risk of death,extreme sanction or inhumane treatment that has arisen since the last assessment of risk (Baron v. Canada (Minister ofPublic Safety and Emergency Preparedness), 2009 FCA 81, [2010] 2 F.C.R. 311, at paragraph 51; Canada (Public Safetyand Emergency Preparedness) v. Shpati, 2011 FCA 286, [2012] 2 F.C.R. 133, at paragraphs 41-43). Enforcement officersare not to conduct a full assessment of the alleged risks, nor come to a conclusion as to whether the person is at risk.

Rather,officers are to consider and assess the risk-related evidence in order to decide whether deferring removal is warranted inorder to allow a full assessment of risk. [15] The new risk alleged by Mr. Gebru results from the change in government that took place in Ethiopia in April 2018 and incidents ofethnic violence that followed. Mr. Gebru says that members of the Tigrean ethnic group, to which he belongs, are particularly targetedby the violence. To support his allegations, Mr.

Gebru filed a number of newspaper articles describing those incidents. [16] In his decision, the enforcement officer noted that these facts post-date Mr. Gebru’s latest PRRA decision. The officer, however,found that the risks described in Mr. Gebru’s materials are generalized in nature. Thus, there is no compelling evidence of a new risk thatwould affect Mr. Gebru personally. The officer also noted letters provided by Mr. Gebru’s family members describing incidents of harassment, butascribed them "“less weight,”" given that these family members have an interest in the success of Mr. Gebru’s claim.

In the end, theofficer concluded that removal to Ethiopia would not "“expose [Mr. Gebru] to risk of death, extreme sanction or inhumane treatmentbeyond mere speculation.”" [17] As I explained in a recent case, it is an error to discount letters written by family members for the sole reason that family membersmay be biased (Magonza v Canada (Citizenship and Immigration), 2019 FC 14). However, a closer review of the letters filed in thiscase, which were written in support of Mr. Gebru’s H&C application and not his request for deferral, reveals little information aboutviolence against ethnic Tigreans.

In this connection, Mr. Gebru’s wife simply writes that "“the ethnic politics is making things more worse as I am Tigrian by ethnicity I am very scaredbecause people have no good attitude toward this ethnic group.”" Their son writes: The top leaders of the Ethiopian Government are from the Northern part of Ethiopia, Tigray. Without having any connectionwith the government, most of the people in Addid Ababa thinks that we don’t deserve to live here… [18] No specific examples are given. No information is provided that would show that Mr.

Gebru’s family is exposed to a particular risk or has been involved in any specific incident. These letters do not show that the risks towhich Mr. Gebru would be exposed upon returning to Ethiopia have significantly changed since his last PRRA in September 2017. [19] I have also reviewed the newspaper articles filed by Mr. Gebru. They only provide a glimpse of Ethiopia’s complex inter-ethnicrelations and evolving political situation. What is reasonably clear is that, in recent years, there has been serious inter-ethnic conflict aswell as violent repression of protests.

What has recently changed is that a new prime minister, who comes from a different faction of theruling coalition, took office in April 2018 and initiated significant reforms. This spurred quick changes in the dynamics of inter-ethnicrelations and conflict. Violence has apparently intensified. While some of the articles filed in evidence refer to incidents targeting ethnic

Tigreans, it is far from clear that Tigreans are the only ones targeted or that Tigreans are more at risk since the change in government. [ 20 ] As a result, the information in the record does not allow me to draw the conclusion that the findings of Mr. Gebru’s last PRRA have become invalid or that he would personally face a risk of death or serious mistreatment if he were to return to Ethiopia. Accordingly, I find that the enforcement officer’s decision is reasonable.

(2) H&C Application [ 21 ] Mr. Gebru also argues that his removal should be stayed until a decision is made on his application for relief on humanitarian and compassionate [H&C] grounds. [ 22 ] In this regard, the Federal Court of Appeal has stated that the mere filing of an H&C application does not result in an automatic deferral of removal from Canada ( Baron at paras 50-53 ; Lewis v Canada (Public Safety and Emergency Preparedness) , 2017 FCA 130 , [2018] 2 FCR 229 at paras 56-57 [ Lewis ] ).

This Court has been willing to make an exception to this principle mainly in cases where the H&C application was submitted in a timely manner and the decision was “imminent” ( Newman v Canada (Public Safety and Emergency Preparedness) , 2016 FC 888 at para 28 ). I would note that in Ortiz v Canada (Public Safety and Emergency Preparedness) , 2017 FC 931 , a case put forward by Mr. Gebru, the Court relied mainly on the best interests of a child affected by the removal to conclude that the decision not to defer removal was unreasonable.

That case does not detract from the general proposition flowing from Baron and Lewis that an outstanding H&C application is not a bar to removal. [ 23 ] In this case, Mr. Gebru submitted his H&C application on November 23, 2018, a few weeks after the dismissal of his application for leave and judicial review of his latest PRRA decision. It is clear that Mr. Gebru waited until the last minute to file his H&C application, and that the decision is far from imminent. The enforcement officer correctly decided that this was not a ground for deferral. [ 24 ] I have also considered the grounds for Mr.

Gebru’s H&C application. I am satisfied that they are not of such a nature as to render the refusal to defer unreasonable. B. Irreparable Harm and Balance of Convenience [ 25 ] Given the absence of a serious question, it is unnecessary to engage in a separate discussion of irreparable harm or the balance of convenience. I would simply say that my finding that there is no serious issue entails that Mr. Gebru has not shown irreparable harm. [ 26 ] Accordingly, Mr. Gebru’s motion for a stay of his removal to Ethiopia will be dismissed. ORDER in IMM-253-19 THIS COURT ORDERS that : 1.

The motion for a stay of removal is dismissed. “Sébastien Grammond” Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-253-19 STYLE OF CAUSE: YOSEPH FITWI GEBRU v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: January 14, 2019

order and REASONS: GRAMMOND J. DATED: January 14, 2019 APPEARANCES : Feven Glaizghi For The Applicant Neeta Logsetty For The Respondent SOLICITORS OF RECORD : Feven Glaizghi Barrister and Solicitor Toronto, Ontario For The Applicant Attorney General of Canada Ottawa, Ontario For The Respondent