ZIBUSISO MELUSI MHLANGA Applicant v. MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, 2019 FC 76

Date: 20190118 Docket: IMM-330-19 Citation: 2019 FC 76 Ottawa, Ontario, January 18, 2019 PRESENT: Mr. Justice Grammond BETWEEN: ZIBUSISO MELUSI MHLANGA Applicant and MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent ORDER AND REASONS [ 1 ] Mr. Mhlanga brings a motion for a stay of his removal from Canada scheduled for January 22, 2019. Earlier this month, an enforcement officer refused his verbal application for administrative deferral. The motion for a stay of removal was heard earlier today by telephone conference. I am denying the motion, because Mr.

Mhlanga did not provide the enforcement officer with any grounds or evidence supporting his application for deferral. [ 2 ] Mr. Mhlanga is a citizen of Zimbabwe. He came to Canada on July 20, 2017, and claimed refugee protection on September 14, 2017, alleging that his life was at risk in Zimbabwe by reason of the illegal activities of his estranged spouse and her new partner. His claim was refused by the RPD on December 22, 2017, and by the RAD on September 25, 2018.

He did not seek judicial review of this decision. [ 3 ] On December 17, 2018, an enforcement officer of the Canadian Border Services Agency [CBSA] met Mr. Mhlanga and informed him that CBSA would enforce the departure order and remove him on January 22, 2019. On January 8, 2019, Mr. Mhalanga attended the CBSA offices and verbally asked the same enforcement officer to defer the removal. According to the officer, who swore an affidavit to that effect, Mr. Mhalanga did not provide any documentation or submissions in support of his request.

Thus, the officer immediately denied the request. [ 4 ] In order to obtain a stay of his removal from this Court, Mr. Mhalanga must first show that there are strong grounds to argue that the enforcement officer’s decision was unreasonable: Baron v Canada (Minister of Public Safety and Emergency Preparedness) , 2009 FCA 81 at paras 66-67 [ Baron ] . He has not overcome this first hurdle. [ 5 ] Requests for administrative deferral of a person’s removal from Canada are typically made in writing and supported by evidence.

An applicant has the burden of proving the reasons why his or her removal should be deferred: Petrovych v Canada (Public Safety and Emergency Preparedness) , 2009 FC 110 at paras 28-29 . As the enforcement officer’s discretion to defer removal is narrow, strong reasons are required: Baron ; Newman v Canada (Public Safety and Emergency Preparedness) , 2016 FC 888 . [ 6 ] In this case, Mr. Mhlanga has not provided any evidence to this Court regarding the grounds on which he asked the enforcement officer to defer his removal.

I would add that counsel cannot, at the hearing, attempt to provide details regarding what Mr. Mhlanga said to the officer. That should have been described in Mr. Mhlanga’s affidavit. I am thus left with the evidence of the officer, who says that Mr. Mhlanga did not offer any submissions or supporting materials. The officer was thus bound to deny the request. [ 7 ] Mr. Mhlanga also argues that the officer was required to provide written reasons for her refusal of his request. Enforcement officers must give reasons when they deny a request for deferral.

Where a request is made verbally and is not supported by any evidence, however, it would be a futile exercise to require the officer to give written reasons. [ 8 ] I would also add that the lack of detail in Mr. Mhlanga’s affidavit, when compared to the affidavit evidence of the CBSA officer, does not create a “factual issue” that could only be resolved through oral testimony. In applications and motions, the rule is that evidence is provided through affidavits. It was incumbent on Mr. Mhlanga to provide sufficient evidence. He did not do so. [ 9 ] In those circumstances, Mr.

Mhlanga’s application for judicial review of the enforcement officer’s decision does not raise any serious issue. Accordingly, the motion for a stay of removal must be dismissed. ORDER in IMM-330-19 THIS COURT ORDERS that

1. The motion for a stay of removal is dismissed. “Sébastien Grammond” Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-330-19 STYLE OF CAUSE: ZIBUSISO MELUSI MHLANGA v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: January 18, 2019 ORDER AND REASONS: GRAMMOND J. DATED: January 18, 2019 APPEARANCES : Idowu Ohioze For The Applicant Camille N. Audain For The Respondent SOLICITORS OF RECORD : Andrew Law Barristers, Solicitors and Notaries Edmonton, Alberta For The Applicant Attorney General of Canada Ottawa, Ontario For The Respondent