UMESH SINGH RATHAUR Applicant v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2023 FC 389

Date: 20230321 Docket: IMM-2735-23 Citation: 2023 FC 389 Toronto, Ontario, March 21, 2023 PRESENT: Madam Justice Go BETWEEN:UMESH SINGH RATHAURApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent ORDER AND REASONS [1] Mr.

Umesh Singh Rathaur [Applicant] seeks a stay of his removal to India, scheduled for April 9, 2023, until the final determinationof his application for leave and for judicial review of a decision dated January 30, 2023, by a Senior Immigration Officer [Officer]denying the Applicant’s Pre-Removal Risk Assessment [PRRA] application [PRRA Decision]. [2] Having considered the material filed by the parties and submissions by the parties, I am dismissing the application for a stay. I. Context [3] The Applicant is a citizen of India.

He arrived in Canada on June 26, 2018 and made a claim for refugee protection on July 13, 2018.The Applicant based his claim on his fear of persecution by a land grabber who moved into his family home in Delhi and was illegallyconstructing on his portion of the home. The Applicant states that the land grabber has been threatening the Applicant and his familymembers. [4] The Refugee Protection Division [RPD] found that the determinative issue was the existence of an internal flight alternative [IFA] inMumbai [RPD Decision]. The Applicant appealed the RPD decision to the Refugee Appeal Division [RAD].

His appeal was dismissed. [5] The PRRA Officer [Officer] considered new evidence submitted by the Applicant, including country condition evidence suggestingthat the IFA location would be unsafe.

In the end, the Officer reiterated the findings of the RPD and RAD that the Applicant has an IFAin Mumbai where he would not face a serious possibility of persecution and that it would not be unreasonable for the Applicant to seekrefuge there. [6] The Officer also considered but assigned little weight to the Applicant’s claim that his spouse, who is not a national of India, eatsbeef and would be put at risk in India, while facing discrimination as a woman and risk of kidnapping as a foreign national.

As well, theOfficer reviewed the Applicant’s employment in Canada at a hospital and his application for permanent residence [PR] on humanitarianand compassionate grounds [H&C application] but found such evidence not to fall under the purview of a PRRA application. II.

Issues and Legal Test for Obtaining a Stay [7] The only issue is whether a stay of removal should be granted in these circumstances. [8] In order to obtain a stay, the Applicant must meet the tripartite test articulated by the Supreme Court of Canada in Manitoba (AttorneyGeneral) v Metropolitan Stores (MTS) Ltd, (SCC), [1987] 1 SCR 110, 38 DLR (4th) 321 [Manitoba], RJR-MacDonald vCanada (Attorney General), (SCC), [1994] 1 SCR 311, 111 DLR (4th) 385 [RJR-MacDonald], and R v CanadianBroadcasting Corp, 2018 SCC 5, which is the test to be applied to stays of removal: Toth v Canada (Minister of Employment andImmigration) (1988), (FCA), 86 NR 302, 11 ACWS (3d) 440 (FCA). [9] A stay of removal is warranted only if all three elements of the test are satisfied, namely: (

i) the underlying application for judicialreview raises a serious issue; (ii) the moving party will suffer irreparable harm if the stay is not granted and the removal order isexecuted; and (iii) the balance of convenience favours the granting of the order. [10] The application of this test is highly-contextual and fact-dependent.

As the Supreme Court of Canada explained, "“[u]ltimately, thequestion is whether granting the injunction would be just and equitable in all the circumstances of the case”": Google Inc v EquustekSolutions Inc, 2017 SCC 34 at para 1. [11] Irreparable harm refers to harm which cannot be compensated in money; it is the nature rather than the magnitude of the harm,which is to be examined: RJR 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.

[12] The law requires that irreparable harm be established based on evidence, not assertions or speculation: Atwal v Canada (Citizenshipand Immigration), 2004 FCA 427 at paras 14-15. However, the test for irreparable harm is also not one of absolute certainty: Suresh vCanada (Minister of Citizenship and Immigration), (FCA), [1999] 4 FC 206 (C.A.) at para 12. III. Analysis [13] In his written representations, the Applicant submits that a stay of removal should be granted because: As he is representing himself in his ALJR of the Decision, he should be given relief to pursue his case.

If he is forced to leaveCanada, all his efforts to get justice will become futile; He has been told that it usually takes 9 to 12 months to process a PRRA application, but in his case, it took only 4 months; He has successfully submitted his H&C application on February 13, 2023; He should have his removal stayed until a decision is made in his H&C application, considering his service as a frontline workerduring the pandemic as a registration clerk at a hospital; He has a clean record; It would be unfair to him to remove him before he has a chance to find out the outcome of his H&C application; There is new evidence about the persisting and prevailing risk of life to him; The Officer agreed that the agent of persecution is occupying the house of the Applicant in India and that his family lives in fear; The removal will result in separation of the Applicant from his spouse; and He has made a contribution to the Canadian society and it would be unjust not to recognize such contribution. [14] At the hearing, the Applicant reiterated some of these points.

The Applicant also revealed that his wife has left Canada after her visaexpired and has returned to her home country. [15] The Respondent’s motion record indicates that the Applicant submitted an application for PR under the temporary public policy forrefugee claimants working in Canada’s health care sector during the pandemic. His application was refused as he did not work for theminimum number of hours to qualify for the program. The Applicant made additional submissions, but was advised that his applicationwould not be reopened.

The Court dismissed the Applicant’s leave to judicial review of the negative H&C decision on November 7,2022. The H&C application referred to above was the Applicant’s second. [16] While I am sympathetic to the Applicant, none of his arguments raises any serious issue with respect to the Decision. The Applicantessentially does not challenge any of the findings made by the Officer, but instead focuses on the H&C factors to support his continuousstay in Canada.

The Applicant has not pointed to any reviewable error with respect to the Officer’s assessment of the Applicant’s PRRAapplication, nor do I find any such error exists. [17] Without any serious issue, the Applicant is unable to establish the first prong of the tripartite test, and on that basis alone, the motionmust fail. [18] While I need not consider the second prong, I note that the analysis of irreparable harm in this case overlaps with the first prong oftest. All three decisions assessing the Applicant’s risk found the determinative issue to be the existence of a viable IFA.

Nothing theApplicant submits before me challenges the reasonableness of these findings. [19] I also do not find that having an H&C application that was filed a month ago and not knowing the outcome constitutes irreparableharm.

As the Respondent submits, a pending H&C application, particularly when there is no evidence that a decision is imminent, doesnot constitute a bar to removal. [20] As well, given that the Applicant has not raised any serious issue with respect to the Decision, I am not persuaded that the filing ofALJR per se justifies the staying of removal. [21] With respect to the allegations of risks that the Applicant seeks to rely on, I agree with the Respondent that the same allegationshave been assessed and rejected by the RPD and RAD for being insufficient to warrant refugee protection.

As such, these risk allegationscannot form the basis supporting irreparable harm. [22] While I acknowledge that the removal will result in separation of family and job loss, these are inherent consequences of deportationand do not per se, constitute irreparable harm: Atwal v Canada (Minister of Citizenship and Immigration), 2004 FCA 427 at para 16. [23] In conclusion, I find that the Applicant has not established that there is irreparable harm. [24] I acknowledge the contributions the Applicant has made as a health care worker during the pandemic, but as the Respondentsubmits, these contributions do not automatically warrant a stay of removal. [25] In light of my findings above, the balance of convenience favours the Respondent.

ORDER in IMM-2735-23 THIS COURT ORDERS that the application for a stay of removal pending the determination of the Applicant’s application for judicial review is dismissed. "Avvy Yao-Yao Go" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-2735-23 STYLE OF CAUSE: UMESH SINGH RATHAUR v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD VIA VIDEOCONFERENCE DATE OF HEARING: March 21, 2023 REASONS FOR ORDER AND ORDER: GO J. DATED: March 21, 2023 APPEARANCES : Umesh Singh Rathaur For The Applicant (On their oWn behalf) Diane Gyimah For The Respondent SOLICITORS OF RECORD : Attorney General of Canada Toronto, Ontario For The Respondent