Selvin Edgardo PAZ MEJIA Applicant v. MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, 2023 FC 433

Date: 20230328 Docket: IMM-3828-23 Citation: 2023 FC 433 Ottawa, Ontario, March 28, 2023 PRESENT: The Honourable Justice Fuhrer BETWEEN:Selvin Edgardo PAZ MEJIAApplicantandMINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS I.

Overview [1] The Applicant brings this motion for an order staying his removal from Canada to Honduras scheduled for March 29, 2023 at 5:15pm, until the Court determines the Application for Leave and Judicial Review [ALJR] filed on March 22, 2023, and, if the Court grantsleave, until the Court finally decides the judicial review. [2] The underlying ALJR alternatively seeks an order in the nature of mandamus requiring the Canada Border Services Agency [CBSA]to render a decision on the Applicant’s request to defer removal, or an order in the nature of certiorari quashing the decision to deny hisdeferral request, depending on whether the CBSA would render a decision before the hearing of this motion. [3] The Inland Enforcement Officer [Officer] of the CBSA denied the Applicant’s request on March 23, 2023 [Decision].

TheRespondent’s responding motion record contains a copy of the Decision. [4] Having considered the parties’ written material and heard their oral submissions on March 28, 2023 via videoconference, I find thatthe Applicant has met the applicable test for a stay of removal described below. For the reasons that follow, I therefore grant theApplicant’s motion. II. Background [5] The Applicant is a citizen of Honduras with a complex immigration history in Canada as gleaned from the

summary in the Decision,and from the following related decisions of this Court: Mejia v Canada (Public Safety and Emergency Preparedness), (FC); Mejia v Canada (Citizenship and Immigration), (FC) [Mejia 2019 No. 2]; and Mejia v Canada(Citizenship and Immigration), 2022 FC 1032. [6] The Applicant fears harm in the form of extortion and threats from Mara 18 gang members [Maras].

While the Refugee ProtectionDivision [RPD] of the Immigration and Refugee Board of Canada [IRB] expressed credibility concerns in its rejection of the Applicant’sclaim for protection, the Refugee Appeal Division [RAD] of the IRB found the Applicant truthful in his submissions. The RADnonetheless upheld the RPD’s decision and dismissed the appeal, finding the Applicant failed to establish (

i) a nexus to

section 96 of theImmigration and Refugee Protection Act, SC 2001, c 27 [IRPA], and (ii) that he faced a personalized risk not faced everywhere inHonduras by a substantial proportion of the population, especially business owners, further to

section 97 of the IRPA. The Applicant’sapplication for leave and judicial review of the RAD decision was dismissed. [7] The Applicant’s subsequent applications for a pre-removal risk assessment [PRRA] and permanent residence on humanitarian andcompassionate [H&C] grounds were rejected (including on redetermination of the initial PRRA decision), and this Court dismissedjudicial review applications of those decisions (2022 FC 1032, above). [8] While the previous applications for leave and judicial review were pending, the Applicant sought a deferral of removal that wasdenied.

He also filed an application for leave and judicial review of the denied deferral request. Next, he brought two motions to stayremoval to Honduras, one until the PRRA judicial review application was determined and the other until the judicial review of thedeferral denial was decided. The motion based on the latter was dismissed ( (FC), above), while the motion basedon the former was granted ( (FC), above), notwithstanding that the Applicant had failed to comply with a removalorder.

Justice Diner explained why in his view the stay was warranted despite the non-compliance. [9] In January 2023, the Applicant pled guilty to dangerously operating a motor vehicle and was given a conditional discharge with twoyears’ probation. He was served with a Direction to Report on March 10, 2023 and he promptly requested deferral. The new informationpresented in the deferral request includes: (

i) lack of investigation by police following denunciations against the Maras filed by theApplicant and a cousin; (ii) recently learned information about the murder of an extended family member at the hands of the Maras in2016; (iii) continued threats by Maras against family members and neighbours in Honduras by reason of the Maras seeking theApplicant’s whereabouts; and (iv) continued deterioration in country conditions in Honduras, one of the most violent countries in theworld, especially with respect to gang impunity and police corruption. The Applicant also outlined his serious medical conditions and

ongoing treatments. [10] The Officer found the new evidence supported that the Applicant and others he knows may have been victims of crime in light ofthe extortion and death threats by unknown Maras. In the Officer’s view, however, a lack of progress in the investigation does notestablish a lack of state protection.

The Officer found that the criminal activities described by the Applicant, his family and colleagueswere insufficiently personal on a Convention ground and were of a generalized nature. [11] Regarding the Applicant’s health condition, the Officer noted that there was no documentation to indicate that the Applicant was inneed of emergency medical or psychiatric care or that it is medically unsafe for him to travel.

Further, there was insufficient evidencethat medication or medical care would be unavailable to the Applicant upon return to Honduras. [12] Based on these facts, it falls to the Court to consider, in the context of this motion, whether the Officer reasonably considered thenew developments raised by the Applicant in the latest deferral request, and any other new circumstances brought to the Court’sattention. III.

Test for Stay of Removal [13] To succeed on a motion to stay removal, an applicant must establish that (1) there is a serious issue to be tried (that is, theunderlying ALJR raises a serious issue), (2) the applicant would suffer irreparable harm if the stay were not granted, and (3) the balanceof convenience favours granting the stay [Toth test]: Manitoba (A.G.) v Metropolitan Stores Ltd., (SCC), [1987] 1 SCR110; RJR-MacDonald v Canada (Attorney General), (SCC), [1994] 1 SCR 311 [RJR-MacDonald]; and Toth v Canada(Minister of Employment and Immigration) (1988) 86 NR 302 (FCA), (FCA) [Toth]. [14] The Toth test is conjunctive, meaning that, to be entitled to relief, an applicant must satisfy all three elements of the test: JanssenInc. v Abbvie Corporation, 2014 FCA 112 at para 14. [15] Although generally the threshold for establishing a serious issue is low, in the sense that the Applicant’s case must not be frivolousor vexatious (RJR-MacDonald, above at page 337), on a stay motion arising from a refusal to defer an applicant’s removal the thresholdis elevated because the stay, if granted, effectively grants the relief sought in the underlying judicial review application: Wang v Canada(Minister of Citizenship and Immigration), 2001 FCT 148, [2001] F.C.J.

No. 295 (T.D.) [Wang] at paras 8-11. [16] In determining whether a serious issue exists in a case such as this, the Court must consider that the discretion to defer the removalof a person is limited, and that standard of review of an enforcement officer’s decision is that of reasonableness, with the result that anapplicant must put forward quite a strong case, especially in light of the elevated threshold: Baron v Canada (Minister of Public Safetyand Emergency Preparedness), 2009 FCA 81 [Baron] at para 67; Lewis v Canada (Public Safety and Emergency Preparedness), 2017FCA 130 at paras 43, 54; Abu Aldabat v Canada (Citizenship and Immigration), 2021 FC 277 at para 25. [17] Further, a stay motion generally is “not the appropriate forum to reargue [potential] harms that have been adequately assessed byprevious decision-makers”: Medina Cerrato v Canada (Public Safety and Emergency Preparedness), 2018 FC 1231 at para 23;Ramachandran v Canada (Public Safety and Emergency Preparedness), (FC) at para 8. [18] In the end, a stay is an extraordinary remedy that requires an applicant to demonstrate special and compelling circumstanceswarranting judicial intervention: Harkat v Canada (Minister of Citizenship and Immigration), 2006 FCA 215 [Harkat] at para 10.

Thefundamental question is whether the granting of injunctive relief would be just and equitable in the context-specific circumstances of thecase: Google Inc. v Equustek Solutions Inc., 2017 SCC 34 at para 25. IV.

Analysis [19] I am persuaded that the Applicant has established a serious issue on the elevated standard described in Wang and Baron. [20] Despite the limited discretion to defer reposed in enforcement officers, the Federal Court of Appeal guides that they “may deferremoval when the failure to defer will expose the person seeking deferral to a risk of serious personal harm”: Peter v Canada (PublicSafety and Emergency Preparedness), 2016 FCA 51 [Peter] at para 7.

Although the Federal Court of Appeal cautions in Peter (para 7)against officers conducting a full risk analysis, the Court clarifies that “officers are to consider and assess the risk-related evidence inorder to decide whether deferring removal is warranted in order to allow a full assessment of risk.” In my view, this is not what theOfficer did. [21] Instead, the Officer accepted the Applicant’s new evidence from family and neighbours of ongoing harassment and threats from theMaras, seeking the whereabouts of the Applicant years after he had left the country.

As the Applicant pointed out at the hearing, this isthe first time an administrative decision maker has accepted evidence of ongoing threats after the Applicant left Honduras and no longerwas a small business owner there (he had operated an internet café when he was threatened and attacked by Maras), in contrast to theassessment of his claims and risk based on events he experienced in Honduras. [22] The Officer then inexplicably discounted the new evidence by indicating that “appropriate decision making bodies have determinedthat the [sic] this is not a basis upon which a person can gain refugee protection.” In doing so, the Officer failed to consider whether theongoing threats years later pose a risk of serious personal harm to the Applicant, beyond the generalized risk found by the previousdecision makers on less evidence in earlier proceedings, and thus warrant a new full assessment of the risk.

The United Nations HighCommissioner for Refugees eligibility guidelines contain a risk profile for those targeted specifically, as opposed to indiscriminatelysuch as small business owners generally: Mejia 2019 No. 2, above at numbered para 12. As Justice Pentney recently observed, “case law… emphasizes the importance of not conflating the initial reason for the threat (e.g. that the person owns a business or is perceived to berich) with the risks they face once they are targeted” [citations omitted]: Guzman De Pena v Canada (Citizenship and Immigration),

2023 FC 213 at para 23. [23] Further, I note that the Officer’s finding regarding a lack of investigative progress not being indicative of lack of state protection ispremised in part on the H&C decision which the Officer quoted in the Decision.

The H&C officer noted that the evidence of pastcomplaints demonstrated a willingness of authorities to receive them, that there was little objective evidence regarding the outcome ofthe complaints, and that the Applicant left Honduras after filing his last report. [24] Although the Officer considered the Applicant’s new evidence comprised of police reports demonstrating little progress in theinvestigations, and while the Officer is presumed to have considered the Applicant’s new evidence of country conditions in 2022 (afterthe H&C decision issued) to the effect that 95% of crimes in Honduras go unpunished because of insufficient resources to investigateresulting in widespread impunity, it is illogical in my view to expect a claimant to risk their life to seek ineffective protection simply todemonstrate its ineffectiveness: AB v Canada (Citizenship and Immigration), 2019 FC 1339 at para 20. [25] I also find that Officer was not “actually alert and sensitive” to the Applicant’s submissions regarding his medical situation: Canada(Citizenship and Immigration) v Mason, 2021 FCA 156 at para 34, citing Canada (Minister of Citizenship and Immigration) v Vavilov,2019 SCC 65 at paras 127-128.

The Officer considered the Applicant’s medical needs from the standpoint of whether they wouldimpede his ability to travel and whether he could access healthcare in Honduras. The Officer unreasonably failed, however, to addressthe Applicant’s submission that that his precarious health would compel him to reside in urban areas to access necessary healthcare.

Theargument not considered by the Officer is that this in turn would expose him to a greater threat risk from the Maras, according to thecountry conditions evidence that the Maras have a stronger presence in urban areas. [26] Turning next to the issue of irreparable harm, I am satisfied that the Applicant has met this element of the Toth test. [27] Noting first that there is potential for overlap in the Court’s analysis of the first and second parts of the Toth test, I find that theApplicant has shown a sufficiently strong case cumulatively on the first element of the test to lower the threshold on the second element:Bell Media Inc v GoldTV.Biz, 2019 FC 1432 at para 56, citing Bell Canada v 1326030 Ontario Inc (iTVBox.net), 2016 FC 612 at para30. [28] Second, I note that in determining irreparable harm, the Court must consider the nature of the harm, not the magnitude.

If the harmis such that it cannot be quantified in monetary terms or cured, then “the only issue to be decided is whether a refusal to grant reliefcould so adversely affect the applicants’ own interests that the harm could not be remedied if the eventual decision on the merits does notaccord with the result of the interlocutory application”: Harkat, above at para 13. [29] Although there is a degree of uncertainty regarding the harm the Applicant would face from the Maras were he to return toHonduras, I find based on a balance of probabilities that there is a greater likelihood than not that refusal to grant relief sought herewould expose the Applicant to the harm described in Harkat. [30] Having regard to my determinations on the first two parts of the Toth test, I find that the balance of convenience favours theApplicant. [31] I add that while I am mindful of the Applicant’s previous non-compliance with removal, I agree with the comments of Justice Dinerin Mejia 2019 No. 2, above at numbered para 12, and find them apt here. [32] Further, I have considered the Applicant’s more recent criminal charges involving dangerous operation of a motor vehicle, to whichhe pled guilty, but for which he received a conditional discharge with two years’ probation.

In the Reasons for Sentence, the sentencingjudge commented on the need for the sentence to be proportionate to the gravity of the offence and the degree of responsibility of theoffender, in the context of the Applicant’s diagnosis for substance abuse and anxiety, for which he has sought treatment, as well as theApplicant’s physical health issues. In that vein, I agree with the Applicant that removal of the Applicant, on the basis of these criminalcharges alone, would be a disproportionate response: Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 ,[2002] 1 SCR 3. V.

Conclusion [33] I find that the Applicant has demonstrated special and compelling circumstances warranting judicial intervention. I therefore grantthe motion for a stay of removal from Canada to Honduras until this Court determines the ALJR, and, if the Court grants leave, until theCourt finally decides the judicial review. ORDER in IMM-3828-23 THIS COURT ORDERS that: 1. The Applicant’s motion is granted. 2. The Applicant’s removal is stayed until this Court determines his Application for Leave and Judicial Review, and if granted, untilthe Court finally decides the judicial review. "Janet M. Fuhrer" Judge

FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-3828-23 STYLE OF CAUSE: SELVIN EDGARDO PAZ MEJIA v MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: HELD VIA VIDEOCONFERENCE DATE OF HEARING: March 28, 2023 ORDER AND reasons: FUHRER J. DATED: March 28, 2023 APPEARANCES : Benjamin Liston For The Applicant Jazmeen Fix For The Respondent SOLICITORS OF RECORD : Benjamin Liston Refugee Law Office Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent