ABSHIR BARRE Applicant v. MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, 2018 FC 783

Date: 20180724 Docket: IMM-3295-18 Citation: 2018 FC 783 Toronto, Ontario, July 24, 2018 PRESENT: The Honourable Mr. Justice Favel BETWEEN:ABSHIR BARREApplicantandMINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] The applicant, Mr. Abshir Barre, brings a motion for a stay of his removal to Somalia currently scheduled for July 25, 2018 pendingthe determination for leave and for judicial review of the decision of an Enforcement Officer dated July 10, 2018 refusing to defer hisremoval from Canada under s 48(2) of the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”).

The stay motion was heardby teleconference on July 23, 2018. The motion is allowed in accordance with these reasons. I. Facts and Underlying Decision [2] Mr. Barre is a Convention refugee. He came to Canada with his mother in December 1992 when he was 11 years old. He wasgranted refugee status in 1993 as a dependent included in his mother’s refugee claim. Prior to the civil war in Somalia, Mr. Barre lived inMogadishu and was a member of a politically prominent wealthy family. [3] Mr.

Barre has amassed a lengthy criminal record and he was ordered deported for serious criminality as a result of a conviction foraggravated assault. His appeal of the deportation order was dismissed in April 2009. On June 29, 2012 a danger opinion was issuedagainst him pursuant to s 115(2)(

a) of IRPA for his convictions for aggravated assault (2007) and robbery (2011) (the "“DangerOpinion”"). Mr. Barre’s application for leave and judicial review of the Danger Opinion was dismissed in November 2012. In April2014 Mr. Barre made a request for reconsideration of the Danger Opinion and on February 6, 2017 the request for reconsideration wasdenied. In December 2017 Mr. Barre’s judicial review application to review the reconsideration request was dismissed. In April 2014Mr.

Barre submitted a complaint to the United Nations Human Rights Committee arguing that his deportation would violate his rightsunder various articles of the International Covenant on Civil and Political Rights but by letter dated July 15, 2016 the Human RightsCommittee determined that his rights would not be violated if he was returned to Somalia. His last criminal conviction was in 2011. [4] A direction to report was issued on June 13, 2018 by the enforcement officer and on June 25, 2018 Mr.

Barre requested that theremoval be deferred due to new evidence of risk and a pending request for danger opinion reconsideration. On July 10, 2018 Mr. Barre’sdeferral request was denied by the enforcement officer. [5] Mr. Barre fears returning to Somalia as a young, Westernized male who will be readily identified and at risk from al-Shabaab and hefears the conditions in Somalia to which he will be facing if the stay is not granted. II. Analysis [6] A stay of removal is an exceptional remedy, as it interferes with the normal administrative process of immigration in Canada.

Thestatutory 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 Courtmay make interim orders pending the final disposition of an application for judicial review. To obtain a stay of removal Mr. Barre mustmeet the test set out in Toth v Canada (Minister of Employment and Immigration), (1988), 86 NR 302, (FCA): (a)there is a serious question to be tried; and (

b) the applicant would suffer irreparable harm if the stay is not granted; and (

c) the balance ofconvenience favours the applicant. [7] All three elements of the test must be met in order for a stay to be granted. [8] The Court is also guided by jurisprudence that confirms that the discretion of an enforcement officer to defer removal of a person islimited.

In Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 [Baron] at para 67: In determining whether a serious issue exists as to warrant the granting of a stay of removal, the Judge hearing the motionshould clearly have in mind, first of all, that the discretion to defer the removal of a person subject to an enforceable removalorder is limited, as explained in Simoes, supra, and particularly in Wang, supra. Second, the Judge should also have in mindthat the standard of review of an enforcement officer’s decision is that of reasonableness.

Thus for an applicant to succeedon a judicial review challenge of such a decision, he or she must be able to put forward quite a strong case. A. Serious Question to be Tried

[9] In RJR – MacDonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR 311 [RJR], the Supreme Court statedthat the "“serious question to be tried”" criterion is a relatively low threshold (RJR at 337). It is generally interpreted to mean that theissue or question is not frivolous or vexatious. [10] Mr.

Barre asserts that the enforcement officer made two reviewable errors: (1) failure to defer removal to ensure the properassessment of new evidence related to current country condition evidence; (2) failure to defer removal to ensure proper assessment of theApplicant’s current and prospective danger to the public. A third ground was abandoned on the eve of the stay motion related to thesubmission to the Human Rights Committee referred to above. [11] In view of the low threshold for this element of the three part test, keeping in mind Baron, above, and the fact that Mr.

Barre ischallenging the deferral decision, I will simply say that I am satisfied that Mr. Barre has raised serious questions to be tried. B. Irreparable Harm [12] The second prong of the RJR test relates to irreparable harm. In assessing that second criterion, some principles must be borne inmind. First, a certain degree of hardship is inherent in removal from Canada (Kanthasamy v Canada (Citizenship and Immigration), 2015SCC 61, [2015] 3 SCR 909 at para 23).

Such hardships may not be taken into account, lest the entire scheme of the Act be defeated.Second, a motion for stay of removal is not the appropriate forum to reargue harms that have been adequately assessed by previousdecision-makers (see, e.g., Goshen v Canada (Public Safety and Emergency Preparedness), 2011 FC 1380 at para 6). [13] Mr.

Barre asserts harms based on new country condition evidence that he submitted which can be summarized as follows: threatsfrom al-Shabaab’s indiscriminate attacks in Mogadishu; threats arising as a Western returnee without local connections; the humanitariancrisis fueled by drought and the forced return of refugees from Kenya. Mr. Barre also argues that a denial of his second request for areconsideration of the Danger Opinion violates his

section 7 Charter rights. Mr. Barre argues that this information was not before theMinister’s Delegate who denied his first reconsideration as there was almost three years between the reconsideration request and thereconsideration denial. [14] Mr. Barre also argues that his efforts at rehabilitation require a fresh examination. In particular he points to his exemplary conductand behaviour, including his sober lifestyle, at his residence at Harvest House (which he has remained at since his release fromimmigration detention in August 2016).

The new court condition evidence and his rehabilitative efforts are the basis for his secondreconsideration of the Danger Opinion that he submitted in a letter from his counsel on January 23, 2018. [15] Mr. Barre essentially argues that the refusal to defer the removal order while he has not received a second reconsideration wouldcause him to suffer irreparable harm. Mr. Barre argues that the enforcement officer did not appropriately take into account that he wasraising new issues that could impact the overall decision to remove him. [16] In response the Respondent argues that Mr.

Barre had opportunities to raise the new evidence earlier and up to the time of thedenial of his reconsideration request in February 2017. The Respondent also argues that the enforcement officer’s decision noted that hewas taking into consideration the submissions and the immigration file of Mr. Barre. As such the decision not to defer removal shouldstand. [17] I am mindful that irreparable harm must be proved and must not be based on mere speculation (see, e.g., Montenegro v Canada(Minister of Public Safety and Emergency Preparedness), 2016 FC 609 at para 12).

Yet, irreparable harm is about the future and thefuture can never be predicted with certainty. In the context of a motion for stay of removal, it is unrealistic to require proof of certainty ofharm. [18] Under the circumstances, I am of the view that Mr. Barre has shown irreparable harm.

I am persuaded by the arguments of Mr.Barre that based on a review of the enforcement officer’s decision he did not fully appreciate the nature or impact of the new evidence.While the decision notes that the enforcement officer reviewed the entire file as well as the submissions on the face of the record theinformation presented by Mr. Barre appears compelling. [19] We do not know for sure what will happen to Mr. Barre in Somalia. There has not been any material before the Court to show thathe will face personalized risks if returned to Somalia.

An applicant seeking a stay of removal must establish a personalized risk of harmon the basis of clear and convincing evidence. Risks that are generalized and experienced by the local population do not support an orderfor a stay of removal (Eliash v Canada (Minister of Citizenship and Immigration), 2014 FC 1162). I find on the evidence that Mr. Barrehas demonstrated a likelihood of a personal risk of harm that is more than mere speculation. At the same time the general conditions ofSomalia and the effect on the general population cannot be ignored. [20] I am persuaded by the argument of Mr.

Barre that a danger opinion needs to be viewed in light of timely information. For this herelies on (Ragupathy v Canada (Minister of Public Safety and Emergency Preparedness), 2006 FC 1370). I am also persuaded by Mr.Barre’s argument that there is not a requirement to demonstrate that one will be at risk more than the general population as set out in(Galvez Padilla v Canada (Minister of Citizenship and Immigration), 2013 FC 247). [21] An additional argument of Mr. Barre was that a denial of the stay may amount to mootness of the underlying application.

In thisregard, the Federal Court of Appeal has repeatedly stated that the potential mootness of the underlying application does not, in and ofitself, constitute irreparable harm (El Ouardi v Canada (Solicitor General), 2005 FCA 42 at para 8; Baron, above, at para 50, Canada(Minister of Public Safety and Emergency Preparedness) v Shpati, 2011 FCA 286 at paras 35-39, [2012] 2 FCR 133; Lewis v Canada(Minister of Public Safety and Emergency Preparedness), 2017 FCA 130 at paras 56-57). I would not give effect to this alleged harmindependently of Mr.

Barre’s other submissions. [22] In the result, and taking a holistic view of the harms alleged, I conclude that Mr. Barre has shown that irreparable harm is likely tooccur if a stay of removal is not granted.

C. Balance of Convenience [ 23 ] At this last stage of the RJR test, prejudice to the Applicant must be balanced against prejudice to the Respondent who is prevented from enforcing the law. It has sometimes been said that " “[w]here the Court is satisfied that a serious issue and irreparable harm have been established, the balance of convenience will flow with the Applicant” " ( Mauricette v Canada (Minister of Public Safety and Emergency Preparedness) , 2008 FC 420 at para 48 ). Nevertheless, balance of convenience is not a purely formal criterion.

The conduct of the applicant, for example where the applicant has a significant criminal record or has a history of evading immigration authorities, may strengthen the interest of the state in enforcing the removal. [ 24 ] The Court must decide which of the two parties will suffer the greater harm from the granting of the stay order, Mr. Barre or the Respondent. Mr. Barre has no family connections and he will likely be identified as a foreigner if he is returned.

He also will be facing conditions that are harsh to say the least. [ 25 ] On the other hand, the Court must look at the public interest in the proper administration of the immigration system and the enforcement of removal orders. The prompt enforcement of removal orders is evident from a reading of s 48(2) of IRPA . The balance of convenience favours removal where an individual is being removed on the basis of serious criminality.

In Mohamed v Canada (Minister of Citizenship and Immigration) , 2012 FCA 112 the Federal Court of Appeal found that the balance of convenience favours the Minister where the person facing removal has been convicted of criminal offences and found to be a danger to the public. [ 26 ] The Danger Opinion is the basis upon which the Respondent is seeking removal. When reviewing the record which highlights the extensive criminal record of Mr. Barre I am persuaded that the balance of convenience favours Mr.

Barre in this case due to the recent evidence of his rehabilitation and the country condition evidence. [ 27 ] In conclusion, the three RJR criteria have been met by Mr. Barre. The motion for stay is granted. ORDER in IMM-3295-18 THIS COURT’S ORDER is that the motion for a stay of the removal of the applicant is granted. "Paul Favel" Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-3295-18 STYLE OF CAUSE: ABSHIR BARRE v MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: TORONTO, Ontario DATE OF HEARING: JULY 23, 2018 order AND reasons: FAVEL J.

DATED: JULY 24, 2018 APPEARANCES : Benjamin Liston For The Applicant Alison Engel-Yan For The Respondent SOLICITORS OF RECORD :

Refugee Law Office Legal Aid Ontario Toronto, Ontario For The Applicant Attorney General of Canada Ottawa, Ontario For The Respondent