ABUBAKAR OLADIMEJI ALABI AWELE MEME OLUFUNKE ALABI GADIL OLUWASENI ALABI ZAIDA OLUWAFIKEMI NGOZI ALABI Applicants v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2023 FC 841

Date: 20230614 Docket: IMM-3089-23 Citation: 2023 FC 841 Toronto, Ontario, June 14, 2023 PRESENT: Madam Justice Go BETWEEN:ABUBAKAR OLADIMEJI ALABIAWELE MEME OLUFUNKE ALABIGADIL OLUWASENI ALABIZAIDA OLUWAFIKEMI NGOZI ALABIApplicantsandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent ORDER AND REASONS [1] The Applicants, Mr. Alabi, Ms. Alabi, their minor daughter Zaida and minor son Gadil, seek a stay of removal to Nigeria scheduledfor July 11, 2023.

The motion for stay is brought as interlocutory relief to an Application for Leave and for Judicial Review [ALJR] of adecision dated February 2, 2023 rejecting the Applicants’ Pre-Removal Risk Assessment [PRRA] Application [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. I. Context [3] The Applicants are citizens of Nigeria.

In September 2018, the Applicants came to Canada and made a refugee claim, alleging thatthey are being targeted by their extended family in Nigeria due to their opposition to having Zaida undergo female genital mutilation[FGM]. The Refugee Protection Division [RPD] rejected their claim based on credibility concerns. The Refugee Appeal Division [RAD]upheld the RPD decision. The Federal Court dismissed the Applicants’ judicial review application in April 2021. [4] In support of their PRRA application, the Applicants provided a sworn statutory declaration from Mr.

Alabi stating, among otherthings, that new threats have been made against his family and that his 10-year-old niece underwent FGM in 2022. The Applicants alsosubmitted new evidence including a screenshot of a WhatsApp message, a video and a photo claiming to depict an animal-killing ritualthat was performed for the FGM ceremony of Mr. Alabi’s niece. [5] The PRRA officer [Officer] found that the risk presented in the Applicants’ PRRA application is essentially the same as what waspresented in their refugee claims.

The Officer determined that the affidavit, screenshots and photo constitute insufficient evidence for thealleged threats that the Applicants are facing, noting that the Applicants provide little evidence to establish and confirm the identity ofthe girl in the photo. The Officer found that even if the girl in the photo is Mr.

Alabi’s niece, the screenshots and the photo only establishthat a goat was killed, and that the girl held the severed head of the goat, but not the reason for the killing. [6] The Officer further determined that the Applicants have not demonstrated with sufficient objective corroborating evidence of apersonalized risk that links the country conditions evidence on FGM and gender-based violence and their personal circumstances.

TheOfficer noted that as the Applicants have not provided sufficient evidence in support of their stated risk, that the country conditionsdescribing a risk of FGM “indicate no more than a generalized risk for the [Applicants]”. The Officer concluded that a generalized riskdoes not rise to the level of a risk required under sections 96 or 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA],and as such they are not persons in need of protection. 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 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, the

question 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 A. Serious Issue [11] With respect to the PRRA Decision, the Applicants submit that: a. The Officer erred in finding that the Applicants did not have a personalized risk of FGM by discarding the Applicants’submissions and evidence establishing their membership in a particular social group that opposes FGM and gender-relatedpersecution, and in doing so, committed a fundamental error in requiring personalized risk where

section 96 does not require this; b. The Officer erred in unjustifiably requiring corroborative evidence and discounting the evidence provided by the Applicants; and c.

When the Officer found that the identity of the girl in the photo had not been established despite this being addressed in Mr.Alabi’s accompanying sworn statutory declaration, the Officer erred in making a veiled credibility assessment and not holding anoral hearing. [12] The Respondent submits that the Applicants have failed to set out that a serious issue has arisen with respect to the Decision. [13] At this stage, the Applicants need only demonstrate that they have a fairly arguable case.

In light of the information before me, Ifind that at least one of the issues raised by the Applicants with respect to the reasonableness of the Decision is neither frivolous norvexatious. As such, I find the Applicants have met the first prong of the test. B. Irreparable Harm [14] 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. [15] 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. [16] 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. [17] In the context of this case, there is some overlap between the evidence and arguments with respect to serious issues and thoserelating to irreparable harm, especially with respect to the risk faced by Zaida should she return to Nigeria. [18] In light of the overlap between the first two prongs of the tripartite test in this case, I find that the potential mootness of theunderlying application for judicial review amounts to irreparable harm: Matthew v Canada (Minister of Citizenship and Immigration),2022 FC 924 at paras 21-22. [19] Before this Court, the Applicants present two psychological assessment reports [Psychological Reports] surrounding the mentalhealth concerns of Ms.

Alabi and Zaida. The Applicants submit the Psychological Reports to demonstrate the impact of removal on themental health of Ms. Alabi and Zaiba, which has not been previously assessed during the course of their immigration history in Canada. [20] The Applicants further submit country condition documents establishing the lack of available mental health services in Nigeria. Inparticular, these documents show that there are roughly 300 psychiatrists in Nigeria for a population of over 20 million. The Applicantssubmit that should Ms.

Alabi and Zaida be removed to Nigeria, they would be unable to obtain the requisite mental health treatment asrecommended in the Psychological Reports, and as such would experience irreparable harm. [21] This Court has found that an applicant’s mental health concerns and need for treatment, combined with the adverse treatment ofindividuals with mental health issues in country of removal, can constitute irreparable harm: Karkarod v Canada (Minister of Citizenshipand Immigration), 2022 FC 1471 at para 35. [22] In this case, I find that the concerns about the mental health of the two female Applicants also constitute irreparable harm. [23] I do not find persuasive the Respondent’s submission with regard to the distinction between the care available in the rural and urbanareas, given the very low overall per capita ratio of available psychiatrists in Nigeria. [24] The Respondent cites my decision in Patel v Canada (Minister of Citizenship and Immigration), 2023 FC 370 [Patel] to ask me notto consider the new evidence with respect to the female Applicants’ mental health conditions.

Patel is distinguishable on facts and doesnot deal with the submission of new evidence concerning irreparable harm. In any event, this Court can and does often accept new

evidence on the issue of irreparable harm: Omar v Canada (Solicitor General) , 2004 FC 1740 at para 4 . [ 25 ] The Respondent further submitted at the hearing that the female Applicants’ mental health concerns do not rise to the level of irreparable harm in light of the preliminary clinical formulation, the treatment goals and recommended treatment plan in the Psychological Reports. But as the Applicants point out, the Applicants are awaiting referral to see a psychiatrist through their primary health physician.

The Applicants cite Gebremariam v Canada (Public Safety and Emergency Preparedness) , 2020 FC 17231 , where the applicant was awaiting her psychiatric assessment, yet Justice Walker granted the stay of removal in light of the evidence describing issues faced by individuals suffering mental illness in the applicant’s country of removal. The same rationale in my view could also be applied to the case at hand. [ 26 ] In view of the materials before me, I find that Ms.

Alabi and Zaida face irreparable harm in light of their mental health concerns and the availability of treatment in Nigeria. [ 27 ] In conclusion, I find the Applicants have met the second prong of the tripartite test. C.

Balance of Convenience [ 28 ] 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. [ 29 ] I acknowledge that there is public interest in ensuring the expeditious and effective execution of a removal order, however, it should be balanced against the preserving of public confidence that Canada does not deport individuals without properly assessing their risk, as required under the Canadian Charter of Rights and Freedoms and international human rights law. [ 30 ] 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-3089-23 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-3089-23 STYLE OF CAUSE: ABUBAKAR OLADIMEJI ALABI, AWELE MEME OLUFUNKE ALABI, GADIL OLUWASENI ALABI, ZAIDA OLUWAFIKEMI NGOZI ALABI v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD VIA VIDEOCONFERENCE DATE OF HEARING: June 13, 2023 ORDER AND reasons: GO J. DATED: June 14, 2023 APPEARANCES : Adrienne Smith For The Applicants Aida Kalaj For The Respondent

SOLICITORS OF RECORD : Adrienne Smith Smith Immigration Law Toronto, Ontario For The Applicants Attorney General of Canada Toronto, Ontario For The Respondent