CRISTIAN ALDAI RIVERA LEON SARAI CARLA BELLO MALAGON IKER ALDHAIR RIVERA BELLO Applicants v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2023 FC 699

Date: 20230520 Dockets: IMM-3499-23 IMM-6179-23 Citation: 2023 FC 699 Ottawa, Ontario, May 20, 2023 PRESENT: Madam Justice Go Docket: IMM-3499-23 BETWEEN: CRISTIAN ALDAI RIVERA LEON SARAI CARLA BELLO MALAGON IKER ALDHAIR RIVERA BELLO Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent Docket: IMM-6179-23 AND BETWEEN: CRISTIAN ALDAI RIVERA LEON SARAI CARLA BELLO MALAGON IKER ALDHAIR RIVERA BELLO Applicants and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent ORDER AND REASONS [ 1 ] Mr. Cristian Aldai Rivera Leon, Ms.

Sarai Carla Bello Malagon and their child, Iker [together, the “Applicants”] seek a stay of removal to Mexico, scheduled for May 22, 2023, until the final determination of the applications for leave and for judicial review of either one of the following two decisions: (

i) a decision dated February 21, 2023 by the Refugee Protection Division [RPD] finding that the Applicants are not Convention Refugees and are not persons in need of protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act , SC 2001, c 27 [ IRPA ] and that their claims have no credible basis [RPD Decision], and/or (ii) a decision of an Inland Enforcement Officer [Officer] at the Canada Border Services Agency [CBSA] dated May 15, 2023 refusing the Applicants’ request to defer their removal from Canada [Deferral Decision] until this Court has considered the RPD Decision. [ 2 ] Having considered the materials filed by the parties, and having heard the submissions of counsel for the parties, I am granting the Applicants’ motions for a stay of their removal.

I. Context [ 3 ] The Applicants are citizens of Mexico. They allege that they were forced to leave their country after being targeted by corrupt members of the local police as a result of Mr. Leon’s successful enterprise as an optometrist. The Applicants claim that their house was burglarized and their belongings stolen, including their identity documents, Mr. Leon’s work equipment and documents showing his earnings. The Applicants claim that when they reported the burglary to the police, the police asked for a bribe that they could not pay. A few days later, the Applicants allege a black car approached Ms.

Bello Malagon, and tried to kidnap Iker. [ 4 ] Fearing for their lives and safety, the Applicants left their hometown on February 16, 2022. They arrived in Canada on February 19, 2022 and made a refugee claim. [ 5 ] The CBSA interviewed the Applicants at the Port of Entry [POE declarations], with the assistance of an interpreter. The Applicants subsequently completed their Basis of Claim [BOC] forms including the narrative on their own, using an app-based translation tool.

The Applicants were self-represented at the RPD hearing. [ 6 ] The RPD member concluded that the Applicants had no credible basis pursuant to subsection 107(2) of the IRPA , citing, among other things, the discrepancies and omissions in the Applicants’ POE declarations and BOC forms. [ 7 ] On April 25, 2023, the Applicants were called in by the CSBA for a removal interview. Based on the tickets purchased by the Applicants, the Officer issued a departure letter on May 4, 2023. The Applicants submitted a request for deferral of removal on May 9, 2023, and received the Deferral Decision on May 15, 2023.

II.

Issues and Legal Test for Obtaining a Stay [8] The only issue is whether a stay of removal should be granted in these circumstances. [9] 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). [10] 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. [11] 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. [12] While in many cases, the threshold for the serious issue branch of the test is not high, in cases where the stay is requested followinga refusal to defer removal, a higher threshold applies.

The Applicants need to demonstrate a “likelihood of success” or “quite a strongcase” in regard to the underlying application for leave and judicial review: Wang v Canada (Minister of Citizenship and Immigration),2001 FCT 148 , [2001] 3 FC 682; Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 atpara 67. III. Analysis A. Serious Issue [13] With respect to the RPD Decision, the Applicants submitted that: a. The RPD Member’s findings that there is no credible basis for the claim are unreasonable; b.

The Applicants’ rights to procedural fairness were breached when they were not given the opportunity to provide further evidenceand were denied the opportunity to make further submissions; and c. The RPD Member’s findings regarding the Applicants’ credibility are unreasonable. [14] At this stage, the Applicants need only demonstrate that they have a fairly arguable case. In light of the information before me, Ifind that the issues raised by the Applicants with respect to the reasonableness of the RPD Decision and the alleged breach of proceduralfairness are neither frivolous nor vexatious.

As such, I find the Applicants have met the first prong of the test. [15] In light of my above finding, I need not address the Applicants’ submissions with respect to the Deferral Decision. B. Irreparable Harm [16] 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. [17] 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. [18] 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. [19] There is considerable overlap between the evidence and arguments with respect to serious issues and those relating to irreparableharm.

Having found that the Applicants have established a serious issue with respect to the RPD’s rejection of the Applicants’ allegationsof risk, I find that the Applicants have also established that they would face irreparable harm in Mexico that is not compensable indamages in view of the evidence. [20] I acknowledge the Respondent’s submission that by the will of Parliament, the Applicants do not have a right of appeal to theRefugee Appeal Division pursuant to paragraph 110(2)(

c) of IRPA, and there is no statutory stay pending the underlying application forleave challenging the RPD Decision. However, the Applicants lost their right to appeal due to the RPD Member’s finding that theApplicants’ claims have no credible basis, a finding that is now being challenged based on grounds that I have already found not to be

frivolous nor vexatious. [21] I find that Isik v Canada (Citizenship and Immigration), (FC), cited by the Respondent, is distinguishable on thefacts. [22] In the context of this case, including the serious issue that the RDP Decision was possibly made in breach of the requirements ofprocedural fairness, I also find that the potential mootness of the underlying application for judicial review of the RPD Decision amountsto irreparable harm: SKGO v Canada (Citizenship and Immigration), 2023 FC 83 at paras 21-22. C.

Balance of Convenience [23] In the third branch of the test, the Court has to consider where the balance of convenience lies, taking into consideration the publicinterest to be weighed together with the interests of private litigants: Manitoba at paras 34, 38. [24] While I acknowledge the public interest in ensuring removals are carried out as quickly as possible, in a case like this, the harm tothe Applicants in effecting the removal is far greater than the harm caused by delaying the removal.

Considering that the Applicants donot have any criminal record in Canada, nor any negative immigration history, and considering the irreparable harm that may be causedby the removal, the balance of convenience favours the Applicants. [25] In light of all of the above, I therefore grant the stay motion pending a final determination of both the applications for leave and forjudicial review of the RPD Decision and the Deferral Decision. ORDER in IMM-3499-23 & IMM-6179-23 THIS COURT ORDERS that 1.

The Applicants’ motions are granted and their removal is stayed pending the determination of the Applicants’ applications forleave and, if leave is granted, pending the determination of their applications for judicial review. 2. The style of cause in relation to the application for leave for judicial review of the RPD decision is corrected to name the Ministerof Citizenship and Immigration as the proper Respondent.

"Avvy Yao-Yao Go" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-3499-23 STYLE OF CAUSE: CRISTIAN ALDAI RIVERA LEON, SARAI CARLA BELLO MALAGON, IKERALDHAIR RIVERA BELLO v THE MINISTER OF CITIZENSHIP ANDIMMIGRATION AND DOCKET: IMM-6179-23 STYLE OF CAUSE: CRISTIAN ALDAI RIVERA LEON, SARAI CARLA BELLO MALAGON, IKERALDHAIR RIVERA BELLO v THE MINISTER OF PUBLIC SAFETY ANDEMERGENCY PREPAREDNESS PLACE OF HEARING: HELD VIA VIDEOCONFERENCE DATE OF HEARING: May 19, 2023 ORDER AND REASONS: GO J. DATED: May 20, 2023

APPEARANCES : Bjorna Shkurti For The Applicants Maria Green For The Respondent SOLICITORS OF RECORD : Bjorna Shkurti Caron & Partners LLP Calgary, Alberta For The Applicants Attorney General of Canada Calgary, Alberta For The Respondent