VIJAYKUMAR POLOJU Applicant v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, 2023 FC 387

Date: 20230321 Docket: IMM-3529-23 Citation: 2023 FC 387 Toronto, Ontario, March 21, 2023 PRESENT: Madam Justice Go BETWEEN:VIJAYKUMAR POLOJUApplicantandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] Mr.

Vijaykumar Poloju [Applicant] seeks a stay of his removal to India, scheduled for March 23, 2023 until the final determination ofhis application for leave and for judicial review of a decision dated March 13, 2023 by an Inland Enforcement Officer [Officer] denyingthe Applicant’s request to defer the execution of a removal order [Decision]. [2] Having considered the material filed by the parties, and having heard the submissions of counsel for the parties, I am dismissing theapplication for a stay. I. Context [3] The Applicant is Hindu. He has been in a long-term relationship with his girlfriend, who is Muslim.

He alleges that her family, whostrongly opposed their relationship, assaulted him when he and his girlfriend tried to get married on May 2, 2019. [4] The Applicant entered Canada on June 27, 2019 and filed a refugee claim on October 21, 2019. His claim was refused by the RefugeeProtection Division [RPD] on February 8, 2021. His appeal to the Refugee Appeal Division [RAD] was dismissed on July 8, 2021 basedon the existence of a viable internal flight alternative [IFA].

His further leave application to the Court was dismissed on June 28, 2022. [5] The Applicant was served with a Direction to Report on January 25, 2023 and submitted a deferral request on February 2, 2023. Inassessing the deferral request, the Officer considered the Applicant’s submissions of risks but found that a deferral is not appropriate inthe circumstances of this case. 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 Applicant must meet the tripartite test articulated by the Supreme Court of Canada in Manitoba (AttorneyGeneral) v Metropolitan Stores (MTS) Ltd, (SCC), [1987] 1 SCR 110, 38 DLR (4th) 321 [Manitoba], RJR-MacDonald vCanada (Attorney General), (SCC), [1994] 1 SCR 311, 111 DLR (4th) 385 [RJR-MacDonald], and R v CanadianBroadcasting Corp, 2018 SCC 5, which is the test to be applied to stays of removal: Toth v Canada (Minister of Employment andImmigration) (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. [10] 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 Applicant needs 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 [Wang]; Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81,[2010] 2 FCR 311 at para 67; and Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at para 43. [11] 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 p. 135.

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 harms that are demonstrated in regard to any personsdirectly affected by the removal, and who will be remaining in Canada: Tesoro v Canada (Minister of Citizenship and Immigration),2005 FCA 148.

[12] 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 (C.A.) at para 12. III. Analysis [13] In the Decision, the Officer reviewed the risk of the Applicant and determined that the same risk was previously assessed andrefused by the RPD and RAD, with leave denied at the Federal Court.

The Officer referred to the RPD and RAD decisions in support oftheir conclusion. [14] The Applicant submits that the Officer erred in their determination, as the RPD and RAD did not have the opportunity to assess theApplicant’s current risk. The Applicant asserts that at the time of the Applicant’s RPD and RAD claim, there was limited evidence ofviolence against relationships involving a Hindu man and Muslim woman.

However, due to the changing circumstances in India, theApplicant submits that there is risk to his life if he returns to India that was not present at the time of the RPD and RAD decisions.Specifically, the Applicant submitted several newspaper articles to the Officer concerning violence against Hindu man/Muslim womancouples in India to support his position. [15] The Respondent submits that the Applicant’s argument that the Officer ignored the “new risk” is a collateral attack on the Court’sdecision dismissing his application for leave and judicial of the RAD decision [ALJR-RAD].

The Respondent presents to the Court acopy of the Applicant’s materials in support of his ALJR-RAD, which included newspaper articles that the Respondent submits weresubstantially similar to those the Applicant presented to the Officer. The Respondent submits that the Applicant made similar argumentswith respect to the RAD decision which were rejected by this Court. [16] The Applicant, on the other hand, argues this is not a collateral attack on the RAD and Court decisions.

The Applicant accepts thefindings of the RAD that there was insufficient objective evidence at the time of the hearing about such communal attacks. However, theApplicant submits that there was new evidence before the Officer, which is the same type of evidence that the RAD previously foundwas missing.

The Officer erred by not deferring the removal until the Applicant is eligible for a Pre-Removal Risk Assessment [PRRA]application on April 22, 2023, when he would receive a full risk assessment. [17] Having reviewed the materials, I agree with the Respondent that the Applicant has not established any serious issue. [18] The Applicant submitted to the Officer that there has been “increasing attacks on Hindu men and Muslim women couple [sic] andgrowing persecution against interfaith relationships” over the past two years.

The Applicant argued there are “multiple cases, where aHindu male has been murdered, beaten, and threatened by either family or the general public for being in a relationship with a Muslimfemale.” I note that the vast majority of the cases cited in the articles submitted by the Applicant involved deadly attacks on Hindu menby the family of the Muslim women. One

article reported a mob attack on a Hindu man travelling in his two-wheeler with a Muslimwoman. There was also one

article describing right-wing Hindu groups working to prevent marriages between Indian Hindus andMuslims, resulting in violence and death threats against such couples. [19] In his previous application for leave to judicially review the RAD decision, the Applicant argued that the RAD erred in determiningthat the Applicant would not be at risk by finding that only evidence of violence against Hindu man/Muslim woman couples are casesperpetrated by the woman’s family.

The Applicant submitted that this finding “is in error because there was some evidence of suchviolence that was perpetrated by actors who were not the woman’s family. There is an example of community members attacking aMuslim woman and there is an example of a Hindu man who was arrested for eloping with a Muslim woman.” [20] The Applicant is essentially making a similar argument with respect to the Decision.

While this may not amount to a collateral attackon the RAD and Court decisions, I agree with the Respondent that the Applicant is essentially relying on evidence that is substantiallysimilar to what he presented to the RPD and RAD, and which has been assessed by these two bodies and the Court as insufficient tosupport his assertion of a “serious risk.” As such, I find no error in the Officer’s reliance on these previous decisions to conclude that thealleged risk is the same risk that was previously assessed and refused. [21] I also agree with the Respondent that the Officer reasonably assessed the medical evidence, which did not reveal any urgent needsthat require attention nor any treatments identified that require the Applicant to remain in Canada. [22] Finally, I am also not persuaded by the Applicant’s arguments that the Officer erred by contesting he has an ongoing relationshipwith his girlfriend, and that he had provided insufficient evidence of hardship resulting from his removal.

My review of the Decisionsuggests that the Officer accepted that the Applicant has an ongoing relationship with his girlfriend. Further, I find no reviewable errorconcerning the Officer’s hardship analysis in light of the evidence the Applicant submitted. [23] As such, I conclude that the Applicant has not met the first prong of the tripartite test. On this basis alone, I must dismiss the motion. [24] In any event, I find the Applicant has not established irreparable harm should he be removed.

There is considerable overlap betweenthe evidence and arguments with respect to serious issues and those relating to irreparable harm, both in terms of the risks as well asevidence with respect to his mental health. [25] As noted in Odusina v Canada (Public Safety and Emergency Preparedness), 2022 Can LII 85630: Where an applicant’s allegations of risk have been previously assessed and rejected, those same allegations cannot serve toestablish irreparable harm in a stay motion (Roh v Canada (Public Safety and Emergency Preparedness), 2011 FC 1273 atpara 48). [26] I also do not find the loss of eligibility for a PRRA, in the context of this case, constitutes irreparable harm.

[ 27 ] In view of my above findings, the balance of convenience thus lies with the Respondent. ORDER in IMM-3529-23 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-3529-23 STYLE OF CAUSE: VIJAYKUMAR POLOJU v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: HELD VIA VIDEOCONFERENCE DATE OF HEARING: March 21, 2023 ORDER AND reasons: GO J.

DATED: March 21, 2023 APPEARANCES : Dov Maierovitz For The Applicant Jake Boughs For The Respondent SOLICITORS OF RECORD : Dov Maierovitz EME Professional Corp Thornhill, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent