ILLIE TRANCA NICOLETA CARMEN FLOAREA Applicants v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2023 FC 527

Date: 20230412 Docket: IMM-2959-23 Citation: 2023 FC 527 Toronto, Ontario, April 12, 2023 PRESENT: Madam Justice Go BETWEEN:ILLIE TRANCANICOLETA CARMEN FLOAREAApplicantsAndTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent ORDER AND REASONS [1] Ms. Nicoleta Carmen Floarea and Mr.

Illie Tranca [together, the “Applicants”] seek a stay of their removal to Romania, scheduled forApril 17, 2023, until the final determination of their application for leave and for judicial review [ALJR] of a decision dated February 3,2023 by a Senior Immigration Officer [Officer] denying the Applicants’ Pre-Removal Risk Assessment [PRRA] application [PRRADecision]. [2] Having considered the materials filed by the parties and submissions by counsel, I am dismissing the application for a stay. I. Context [3] The Applicants entered Canada and made a refugee claim in November 2009.

In September 2010, they departed Canada to return toRomania, where they lived for eleven years prior to their return to Canada in September 2021. [4] In November 2021, they attempted to file new refugee claims. As their refugee claims were determined to be abandoned in September2011, the Applicants were ineligible to file new claims.

The Applicants later filed a PRRA application. [5] Taking into account the Applicants’ return to Romania in 2010 and their two-month delay in seeking new refugee claims upon returnto Canada, and having considered all the submissions and evidence filed by the Applicants, the Officer rejected the Applicants’ PRRAapplication. II.

Issues and Legal Test for Obtaining a Stay [6] The only issue is whether a stay of removal should be granted in these circumstances. [7] 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, 38 DLR (4th) 321 [Manitoba], RJR-MacDonald v Canada (Attorney General), (SCC), [1994] 1 SCR 311, 111 DLR (4th) 385 [RJR-MacDonald], and R vCanadian Broadcasting Corp, 2018 SCC 5, which is the test to be applied to stays of removal: Toth v Canada (Minister of Employmentand Immigration) (1988), (FCA), 86 NR 302, 11 ACWS (3d) 440 (FCA). [8] 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. [9] 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. III.

Analysis [10] The Applicants raise two serious issues with respect to the PRRA Decision. First, the Applicants submit that the Officer breachedprocedural fairness by refusing to consider the request for an oral hearing. Second, the Applicants submit that the Officer erred in failingto consider that the level of discrimination experienced by the Applicants amounts to persecution. [11] I reject both of the Applicants’ submissions. [12] Contrary to the Applicants’ submission, I find that the Officer did not make any credibility findings in the Decision.

Rather, theOfficer refused the PRRA application on the basis of insufficient objective evidence to establish a well-founded fear of persecution,while noting that the Applicants have experienced marginalization and discrimination in Romania. The Officer further noted that the

Roma population in Romania do face societal attitudes that are “inhospitable and intolerant”, but concluded that the evidence submitted by the Applicants was general in nature, and was not in itself sufficient to show that the Applicants are personally at risk of harm.

The Officer’s findings did not amount to a credibility finding. [ 13 ] Citing Zokai v Canada (Minister of Citizenship and Immigration) , 2005 FC 1103 [ Zokai ], the Applicants assert that there was a breach of procedural fairness as there was no acknowledgement of the Applicants’ request for an oral hearing or an explanation for refusing their request. I disagree. As the Respondent notes, the Applicants’ initial request for an oral hearing was based on an erroneous claim that they were entitled to a mandatory hearing under

section 113.01 of the Immigration and Refugee Protection Act , SC 2001, c 27 [ IRPA ]. The Applicants did not provide any further details for their request. Since I reject the Applicants’ argument that the Officer made a credibility finding, I agree with the Respondent that this case is distinguishable from Zokai , where the Court found that an officer’s decision to not hold an oral hearing under subsection 113 (

b) of the IRPA breached procedural fairness, especially in light of the credibility concerns that were present: at paras 10-12. [ 14 ] I acknowledge, as the Applicant suggested at the hearing, that context matters in cases dealing with race-based persecution and that an oral hearing would assist officers in understanding these claims.

However, it is still up to the individual applicant to put their best foot forward to establish their claim, and not to expect that an oral hearing will be granted in their particular case, regardless of whether they believe they have met the requirements for holding an oral hearing. [ 15 ] With respect to the Applicants’ argument that the Officer erred in concluding that the level of discrimination experienced by the Applicants does not amount to persecution, I agree with the Respondent that the Officer reasonably relied on the absence of individualized evidence related to the Applicants’ personal situation and alleged risks.

The Applicants’ affidavit provided some experiences of discrimination, which the Officer assessed before concluding on a cumulative basis that these experiences do not amount to persecution.

The Applicants did not point to any evidence that contradicts the Officer’s findings, other than the general country condition evidence, which, as the case law confirms, is insufficient on its own to ground a claim of persecution: see for example Jean v Canada (Citizenship and Immigration) , 2019 FC 242 at para 19 . [ 16 ] In conclusion, I find the Applicants have not established that there are serious issues arising from the underlying ALJR. [ 17 ] Further, I find the Applicants have not provided clear and non-speculative evidence that returning them to Romania would result in irreparable harm.

The Applicants are essentially relying on the same allegations of risk that have been assessed and rejected by the Officer, and as such, these allegations cannot serve as a basis to establish irreparable harm. [ 18 ] In the context of this case, given my findings on serious issues, I also reject the Applicants’ submission that returning the Applicants to Romania without a proper risk assessment and the mootness of the underlying ALJR would constitute irreparable harm. [ 19 ] In light of my findings above, the balance of convenience favours the Respondent.

ORDER in IMM-2959-23 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-2959-23 STYLE OF CAUSE: ILLIE TRANCA, NICOLETA CARMEN FLOAREA v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD VIA VIDEOCONFERENCE DATE OF HEARING: April 12, 2023 ORDER AND reasons: GO J. DATED: April 12, 2023

APPEARANCES : Khesrau Ahmadi For The Applicants Jennifer Luu For The Respondent SOLICITORS OF RECORD : Khesrau Ahmadi NK Lawyers Toronto, Ontario For The Applicants Attorney General of Canada Toronto, Ontario For The Respondent