ELIAS JERONIMO JEAN TRON LIZBETH LOYO MONTANO ELLIOT JEAN LOYO ESTEBAN JEAN LOYO Applicants v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2023 FC 910

Date: 20230628 Docket: IMM-2736-23 Citation: 2023 FC 910 Toronto, Ontario, June 28, 2022 PRESENT: Madam Justice Go BETWEEN:ELIAS JERONIMO JEAN TRON LIZBETH LOYO MONTANO ELLIOT JEAN LOYO ESTEBAN JEAN LOYOApplicantsandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent ORDER AND REASONS I. Overview [1] Mr. Elias Jeronimo Jean Tron, Ms.

Lizbeth Loyo Montano and their two minor children [together, the “Applicants”] seek a stay ofremoval to Mexico City, scheduled for Monday, July 3, 2023, until the final determination of their application for leave and for judicialreview [ALJR] of a decision dated January 26, 2023 by an immigration officer [Officer] to deny the Applicants’ application forpermanent residence based on humanitarian and compassionate [H&C] grounds [H&C Decision]. [2] Having considered the material filed by the parties, and having heard the submissions of counsel for the parties, I am granting theApplicants’ motion for a stay of their removal.

II. Context [3] The Applicants are citizens of Mexico. They came to Canada on May 12, 2018 to make a refugee claim based on Mr. Tron’s allegedrisk of persecution from the Los Zetas cartel.

The Applicants’ claim was refused on January 20, 2021 and their appeal dismissed on June22, 2021, both on the basis that there is an Internal Flight Alternative. [4] In rejecting the Applicants’ H&C application, the Officer was not satisfied that the H&C considerations before them justify anexemption under subsection 25(1) of the Immigration and Refugee Protection Act, SC 2001, c 27. [5] On February 21, 2023, the Applicants received a Direction to Report for removal scheduled to take place on March 24, 2023.

TheApplicants filed a request to the Canada Border Services Agency [CBSA] to defer their removal until the end of the school term in June2023. On March 20, 2023, the CBSA deferred the Applicants’ removal temporarily. Meanwhile, the Applicants filed their applicationrecord for the ALJR. [6] On June 3, 2023, the Applicants’ removal was rescheduled to July 3, 2023. III.

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 Applicants must meet the tripartite test articulated by the Supreme Court of Canada in Manitoba(Attorney General) v Metropolitan Stores (MTS) Ltd, (SCC), [1987] 1 SCR 110 [Manitoba], RJR-MacDonald v Canada(Attorney General), (SCC), [1994] 1 SCR 311 [RJR-MacDonald], and R v Canadian Broadcasting Corp, 2018 SCC 5,which is the test to be applied to stays of removal: Toth v Canada (Minister of Employment and Immigration) (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.

IV. Analysis A. Serious Issue [11] With respect to the H&C Decision, the Applicants submit that the Officer erred by: a. Failing to properly assess the best interests of the children, by discounting evidence that one of the minor Applicants [MinorApplicant] was suffering from emotional distress manifested by suicidal ideation as a result of learning that the family was deniedrefugee status, and failing to consider or assess whether the removal will trigger further psychological harm to the child; b.

Failing to properly assess the evidence before them in support of the various H&C factors including establishment, risk anddiscrimination upon return to Mexico, and adverse country conditions; and c. Failing to consider the cumulative aspect of the totality of the hardship. [12] The Respondent submits that the Applicants cannot rely on evidence that post-dates the H&C Decision as the basis for seriousissues arising from the substantive decision. I agree.

As such, in considering this branch of the tripartite test, I will not consider the newmedical evidence that the Applicants submitted to the Court. [13] The Respondent further submits that the Applicants have failed to set out that a serious issue has arisen with respect to the H&CDecision. [14] At this stage, the Applicants need only demonstrate that they have a fairly arguable case. I have considered the parties’ writtensubmissions with respect to the underlying ALJR as well as their oral submissions.

I find that at least one of the issues raised by theApplicants with respect to the reasonableness of the Decision is neither frivolous nor vexatious. As such, I find the Applicants have metthe first prong of the test. B. Irreparable Harm [15] 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 para 64. 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 harm that is demonstrated in regard to any persons directlyaffected by the removal, and who will be remaining in Canada: see Tesoro v Canada (Minister of Citizenship and Immigration), 2005FCA 148 at para 28. [16] 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 (CA) at para 12. [17] Irreparable harm may arise from a risk to life, liberty, or safety that the individual would be exposed to if removed to their country oforigin: Begashaw v Canada (Minister of Citizenship and Immigration), 2009 FC 462 at para 54, citing Sivakumar v Canada (Minister ofEmployment and Immigration), (FCA), [1996] 2 FC 872 (CA); Hernandez v Canada (Solicitor General), [1993] FCJNo 950 (TD); Membreno-Garcia v Canada (Minister of Employment and Immigration), (FC), [1992] 3 FC 306 (TD);Suresh v R, (ON SC), [1998] OJ No 296, 49 CRR (2d) 131. [18] In support of their H&C application, the Applicants submitted a letter from a registered social worker regarding the emotionaldistress suffered by the Minor Applicant, noting the emotional distress was manifested by suicidal ideation.

The Officer discounted thisevidence on the basis that there was no indication on whether the issue has been resolved. While the Officer accepted that the MinorApplicant has experienced mental health symptoms, the Officer was unable to conclude that the Minor Applicant “has been diagnosedwith any mental health illness or condition.” [19] Before this Court, the Applicants submit additional medical reports with respect to the Minor Applicant’s health conditions. Amongothers is a letter dated March 13, 2023 from a family physician, Dr.

Woolhouse, stating that the Minor Applicant’s mental health hasworsened due to the ongoing risk of removal. [20] The Applicants also provide a letter dated June 14, 2023 from Dr. Valene Singh, a pediatrician who noted that returning the MinorApplicant to Mexico may be detrimental to [his] health and his family’s well-being”. Dr.

Singh expressed concerns that the MinorApplicant would face stigma and a lack of opportunities to access supports in their country of origin, and that he may experience furthermarginalization and persecution due to his medical and psychological conditions. [21] The Respondent raises several arguments concerning the new medical evidence.

While counsel for the Applicants did not providesubstantive reply arguments in response to the Respondent’s submissions, I am nonetheless not persuaded by the Respondent’s position. [22] The Respondent submits that these medical letters were “prepared for the purposes of litigation” and therefore should beapproached with caution. I note, however, Dr. Singh indicated that the Minor Applicant was referred to him for their care. There isnothing in the letter to suggest that Dr. Singh met with the Minor Applicant only for the purpose of preparing an opinion or assessment. [23] While Dr.

Singh’s letter did not specify when the referral was made for him to see the Minor Applicant, it stated: [The Minor Applicant] is a 15-year-old boy who was referred to my care at the St. Michael’s Pediatric COMPAAS Clinicwith multiple medical diagnoses, including anxiety and concerns for depression secondary to traumatic events in his country

of origin (Mexico) and severe pilonidal disease (lower back abscess) causing debilitating pain and requiring surgery. The COMPASS Clinic is a specialized clinic that cares for children and teens new to Canada with medical and social complexity. He requires ongoing close medical and mental health follow up to support his health and well-being.

Since arriving in Canada, Elliott has been able to access from medical specialists, receive therapies and medication and attend school, and has demonstrated improvement in his mental health and progress in his overall health. [ 24 ] Viewed as a whole, the letter suggests an ongoing relationship between Dr. Singh and the Minor Applicant that goes beyond the preparation of this one report. As such, I reject the Respondent’s supposition that this letter was prepared for the purposes of litigation. [ 25 ] In the case of Dr. Woolhouse, the Minor Applicant was referred to her “because of mental health distress”. Dr.

Woolhouse is a family physician with over 20 years of experience working with marginalized individuals with serious mental illness. She also serves as a physician consultant for the Camp Health Safety Network, providing expertise around the health and wellness of children and youth in the recreation setting. She diagnosed the Minor Applicant with major depressive disorder and generalized anxiety disorder, with some features of autism spectrum disorder. She has referred him for further assessment.

Besides, there was evidence, albeit limited, before the Officer that the Minor Applicant has struggles with mental health concerns. Thus, while Dr. Woolhouse may not have an ongoing relationship with the Minor Applicant, applying the factors set out in Esahak-Shammas v Canada (Minister of Citizenship and Immigration) , 2018 FC 461 , I will also take into consideration Dr. Woolhouse’s opinion. [ 26 ] I also find unpersuasive the Respondent’s attempt to downplay these medical reports by challenging Drs.

Singh and Woolhouse’s qualifications and by suggesting that they are “advocating” on behalf of the Minor Applicant. Both of these doctors are duly registered physicians in Canada. While they may not have specific expertise with regard to the country conditions in Mexico, this does not mean that their opinion about the Minor Applicant’s state of mental health should not carry any weight. [ 27 ] While Dr.

Woolhouse noted the Minor Applicant reporting that “his Christian faith would prevent him from killing himself”, she also noted that the Minor Applicant “was having constant suicidal thoughts, wishing that he were dead”. [ 28 ] The Respondent relies on the Response to Information Request [RIR] to argue that Mexico City, where the Applicants will be returning, has “disproportionately high degree of health care services relative to the rest of the country”.

I note that the same RIR reports shortages of medical staff and medications in Mexico City, which impacts the ability of the health care system to provide adequate care for mental health, and that “individuals with mental health conditions face stigma” in Mexico, including in Mexico City. [ 29 ] This Court has found that an applicant’s mental health concerns and need for treatment, combined with the adverse treatment of individuals with mental health issues in country of removal, can constitute irreparable harm: Karkarod v Canada (Minister of Citizenship and Immigration), 2022 FC 1471 at para 35 . [ 30 ] In view of the medical reports before me and the RIR submitted by the Respondent, I find that the evidence with respect to the Minor Applicant’s mental health concern arising from the removal is not speculative.

I find there is sufficient evidence to demonstrate that the Minor Applicant would likely suffer irreparable harm if the Applicants’ removal is not temporarily stayed. [ 31 ] In conclusion, I find the Applicants have met the second prong of the tripartite test. C.

Balance of Convenience [ 32 ] In the third branch of the test, the Court has to consider where the balance of convenience lies, taking into consideration the public interest to be weighed together with the interests of private litigants: Manitoba at paras 34, 38. [ 33 ] I acknowledge that there is public interest in ensuring the expeditious and effective execution of a removal order.

In this case, however, however, the Minister’s interest in effecting expeditious removal needs to be balanced against the risk of harm faced by the Applicants, including but not limited to the harm to the Minor Applicant. [ 34 ] I also consider that the deadline for filing further submissions in the underlying ALJR has passed, suggesting that a decision will soon be made by the Court as to whether to grant leave for the ALJR. [ 35 ] Balancing all of these factors, I find that the harm of removing the Applicants at this point is greater than the harm caused by delaying the removal until the underlying ALJR is resolved.

ORDER in IMM-2736-23 THIS COURT ORDERS that the application for a stay of removal pending the determination of the Applicants’ application for judicial review is granted. "Avvy Yao-Yao Go" Judge FEDERAL COURT SOLICITORS OF RECORD

DOCKET: IMM-2736-23 STYLE OF CAUSE: ELIAS JERONIMO JEAN TRON, LIZBETH LOYO MONTANO, ELLIOT JEAN LOY, ESTEBAN JEAN LOYO v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD VIA VIDEOCONFERENCE DATE OF HEARING: JUNE 27, 2023 ORDER AND reasons: GO J. DATED: JUNE 28, 2023 APPEARANCES : Vakkas Bilsin For The ApplicantS Jake Boughs For The Respondent SOLICITORS OF RECORD : Vakka Bilsin Lewis & Associates LLP Toronto, Ontario For The ApplicantS Attorney General of Canada Toronto, Ontario For The Respondent