RAMZAN GAFOOR, SAVITRI GAFOOR v. AMIR GAFOOR, 2019 FC 893

Date: 20190704 Docket: IMM-3970-19 Citation: 2019 FC 893 Ottawa, Ontario, July 4, 2019 PRESENT: Mr. Justice McHaffie BETWEEN: RAMZAN GAFOOR, SAVITRI GAFOOR and AMIR GAFOOR Applicants and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent ORDER AND REASONS I. Overview [ 1 ] The Applicants, Mr. Ramzan Gafoor, Ms. Savitri Gafoor and their adult son Mr. Amir Gafoor, filed a request with the Canada Border Services Agency [CBSA] for deferral of their removal to Guyana pending the disposition of their outstanding request to remain in Canada on humanitarian and compassionate [H&C] grounds.

An Enforcement Officer of the CBSA refused the deferral request, confirming that the Applicants are expected to report for removal on July 6, 2019 as previously scheduled.

The Applicants now seek from this Court an order staying the removal pending the disposition of their application for leave and judicial review of the Enforcement Officer’s decision and, ultimately, the H&C application. [ 2 ] The situation of the Applicants, and that of the other member of their immediate family, a fourteen-year-old daughter who is a Canadian citizen and who is not named herein, is sympathetic and it is clear that the removal will have adverse consequences on the family.

However, I am unable to conclude that their situation meets the criteria established for a stay of removal where a request for deferral has been refused. In particular, as set out in further detail below, the Applicants have not identified any issues on which it can be said that they have a " “quite strong case” " that the Enforcement Officer’s deferral decision was unreasonable. Nor have the Applicants demonstrated irreparable harm that goes beyond the hardship and impacts that are inherent in removal from Canada.

The Applicants’ motion will therefore be dismissed. [ 3 ] This application and motion were originally filed before the Enforcement Officer’s decision on the deferral request was made. As originally framed, the application sought an order of mandamus requiring a decision or, in the alternative, an order quashing any issued refusal of the deferral request. Subsequent to the filing of both parties’ motion records, on the afternoon prior to the hearing, the Enforcement Officer issued the decision refusing the deferral request.

As the removal date is imminent, the motion proceeded as scheduled, with both parties making oral submissions with respect to the deferral decision as issued by the Enforcement Officer and the appropriateness of a stay in the context of that decision. While the last minute nature of the decision on the deferral request arose largely due to the timing of the request itself, counsel for both parties should be commended on the manner in which they quickly responded to the decision upon issuance and presented thorough arguments regarding the decision and the requested stay on short notice. II.

Background [ 4 ] The Applicants left Guyana in 2003, and were granted refugee protection in Canada in 2004, becoming permanent residents in 2006. [ 5 ] After being granted refugee protection, Mr. Ramzan Gafoor made a number of trips back to Guyana over a 13-year period, some of which lasted many months and occurred as often as four to five times per year. In 2016, the Minister of Citizenship and Immigration made an application to the Immigration and Refugee Board [IRB] for cessation of the Applicants’ refugee protection pursuant to

section 108 of the Immigration and Refugee Protection Act , SC 2001, c 27 [ IRPA ], on the basis that Mr. Gafoor had voluntarily re-availed himself of the protection of Guyana (section 108(1)(a)) and/or had voluntarily become re-established in Guyana (section 108(1)(d)). The Minister’s application was allowed on January 9, 2019, and the Applicants’ claim for refugee protection was rejected. [ 6 ] The Applicants filed an H&C application that is dated February 26, 2019, although it appears not to have been received by the Minister until March 1, 2019.

That H&C application has not been determined and remains outstanding. In the interim, on February 28, 2019, a departure order was issued to the Applicants. After a pre-removal interview, a direction to report for removal scheduled for July 6, 2019 was issued on May 28, 2019. [ 7 ] Several weeks later, and shortly before the scheduled removal date, the Applicants submitted a request for deferral of the removal to the CBSA.

That request consisted of two packages of information: a lengthy initial submission apparently sent first on June 21, 2019 and resent owing to technical difficulties on June 24, 2019; and a second submission sent on June 26, 2019. In the initial submission, the Applicants identified the basis for the request as being the outstanding H&C application and the best interests of the 14-year-old daughter. Information was also provided regarding the anticipated harm to Amir Gafoor, who has lived in Canada since he was 8 years old, and has completed three years of a university degree in computer science.

In the second submission, additional information was provided regarding the tight family relationships in the Gafoor family, including Ms. Gafoor’s siblings who live in Canada, and the emotional hardship that would be suffered if the Applicants were to be returned to Guyana. Reference was also made briefly to the risk

that Mr. Gafoor faced from his brother in Guyana, whose violence against Mr. Gafoor had continued during return trips to Guyana. [8] On June 26, 2019, the Applicants filed an application for leave and judicial review in connection with their deferral request.

As thedeferral request had not yet been decided—and indeed had only just been filed with the CBSA—the application for leave and judicialreview sought an order for mandamus compelling a decision or alternatively an order quashing any decision refusing of the deferralrequest. [9] The following day, the Applicants filed their motion for a stay of the removal pending disposition of the application for judicialreview.

The motion was scheduled to be heard on the afternoon of July 3, 2019, in advance of the July 6, 2019 removal date. [10] On the afternoon of July 2, 2019, the day before the hearing and less than a week from receipt of the complete deferral request, theEnforcement Officer rendered a decision on the deferral request. [11] In the deferral decision, the Enforcement Officer acknowledged that the H&C application has been in process for four months andremained outstanding, but noted that the H&C application does not give rise to a statutory stay of removal, and could and would continueto be processed on its merits in the event of removal.

Since the current processing time for H&C applications is approximately 32months, the Enforcement Officer noted that there was insufficient evidence to demonstrate that a decision on the application wasimminent or overdue. [12] The Enforcement Officer gave consideration to the H&C factors raised in the deferral request, while noting that they did not havethe delegated authority or expertise to assess the merits of the application. Consideration was given to the best interests of the children,including both Amir Gafoor and the 14-year-old daughter.

In particular, the Enforcement Officer considered the "“best short-terminterests”" of the two children, including the impact of removal on them and factors such as the availability of education in Guyana.While acknowledging that the removal would have an impact, the Enforcement Officer could not conclude in the short term that thechildren would face detrimental harm beyond mere speculation. [13] The Enforcement Officer also concluded that there was insufficient evidence of an inability to reintegrate into Guyanese society,find employment, or maintain contact with family in Canada; and insufficient compelling and objective evidence of risk from Mr.Gafoor’s brother to warrant a deferral of removal.

III.

Test for a Stay After Refusal of a Deferral Request [14] The extraordinary equitable relief of a stay of removal will only be granted when an applicant has demonstrated that they meet eachbranch of the established three-part test described in Toth v Canada (Employment and Immigration) (1988), (FCA),86 NR 302 (FCA) [Toth], namely that (1) there is a serious issue raised on the underlying application; (2) irreparable harm will besuffered if the stay of removal is not granted; and (3) the balance of convenience favours granting the stay. [15] Where, as here, a request for deferral has been refused and a stay is sought pending an application for leave and judicial review ofthat refusal, the issuance of the stay itself will effectively give the applicant the remedy it seeks on the application, as the stay willeffectively defer the removal.

As a result, the requirement for a "“serious issue”" is assessed differently, and a stay will only be granted ifon a "“good hard look”" at the issues, the applicant has put forward "“quite a strong case”": Baron v Canada (Public Safety andEmergency Preparedness), 2009 FCA 81 [Baron] at para 67, adopting the reasoning in Wang v Canada (Minister of Citizenship andImmigration), 2001 FCT 148 [Wang] at paras 8-10. [16] In making this assessment, consideration must be given both to the limited discretion available to an enforcement officer to defer aremoval order, and to the reasonableness standard on which such exercise of discretion will be reviewed: Baron at paras 49-51 and 67,adopting Wang at 43-50 and Simoes v Canada (Minister of Citizenship and Immigration) (2000), (FC), 7 Imm LR(3d) 141 (FCTD) at para 12.

The Federal Court of Appeal in Baron also underscored that the assessment of irreparable harm must gobeyond the hardship and disruption of family life that is the unfortunate consequence of a removal order: Baron at para 69. IV. Analysis [17] The Applicants have raised a number of concerns regarding the Enforcement Officer’s decision, and presented a number of adverseimpacts arising from removal that they identify as constituting irreparable harm. However, applying the three-part test from Toth in themanner required by Baron, I find that the Applicants have not met either of the first two branches of the test.

It follows that the requestedstay cannot be granted. A. Serious Issue [18] The Applicants raise three primary issues with the Enforcement Officer’s decision that they contend raise a serious issue.

Withoutintending to prejudge the application for leave, which will be decided on the different "“arguable case”" standard, or any resultingapplication for judicial review, I conclude that based on a "“good hard look”", the Applicants do not raise "“quite a strong case”" withrespect to any of these issues. [19] The Applicants first argue that it was an error for the Enforcement Officer to conclude that the Gafoors’ H&C application was not"“imminent or overdue”" without also assessing whether the application was filed in a timely manner.

Relying on Bhagat v Canada(Public Safety and Emergency Preparedness), 2009 FC 45 [Bhagat] at para 18, the Applicants contend that failing to consider that theH&C application was timely, in the sense of being filed promptly after the Applicants became eligible to apply, raises a serious issue. [20] Chief Justice Paul Crampton addressed a similar argument in his recent decision in Forde v Canada (Public Safety and Emergency

Preparedness) , 2018 FC 1029 [ Forde ].

As in the present case, the enforcement officer in Forde concluded that there was insufficient evidence to demonstrate that the underlying decision on the applicant’s application (in that case, a spousal sponsorship rather than an H&C application) was " “imminent.” " The Chief Justice noted the limited duration of a deferral that a removal officer has the discretion to grant, and concluded with reference to Baron and other cases that " “a removals officer is not entitled to defer removal where a decision on an outstanding application is unlikely to be imminent” " : Forde at paras 40-41 .

Notably, in Forde , the Chief Justice considered the untimeliness of Mr.

Forde’s application as being an additional factor precluding relief, separate from the indeterminate or non-imminent status of that application: Forde at para 44 . [ 21 ] The Enforcement Officer in the present case referred to the approximately 32-month processing time for an H&C application, and concluded that the decision on the Gafoors’ application was not " “imminent or overdue.” " In light of the decisions in Baron and Forde , both decided after Bhagat , the Applicants cannot be said to have quite a strong case that the Enforcement Officer’s analysis of the status of the H&C application rendered the deferral decision unreasonable. [ 22 ] The Applicants’ second argument is that the Enforcement Officer did not adequately consider the impact of removal on, and the best interests of, the Gafoors’ 14-year-old daughter.

The Applicants note that as there has been no determination on the H&C application, there has been no opportunity to assess the H&C factors, including the best interests of the child.

They reference Vaseekaran v Canada (Citizenship and Immigration) , 2004 FC 913 [ Vaseekaran ] at para 15 , in which Justice John O’Keefe concluded that whether the officer erred in failing to defer pending an assessment of the best interests of a child through the H&C application process raised a serious issue. [ 23 ] As the Respondent pointed out, Vaseekaran was decided prior to the Federal Court of Appeal’s decisions in Baron and Lewis v Canada (Public Safety and Emergency Preparedness) , 2017 FCA 130 [ Lewis ].

In Baron , the Court of Appeal stated that " “an enforcement officer has no obligation to substantially review the children’s best interest before executing a removal order” " : Baron at para 57 .

Subsequently, in the wake of the Supreme Court of Canada’s decision in Kanthasamy v Canada (Citizenship and Immigration) , 2015 SCC 61 [ Kanthasamy ], and with consideration to other decisions of this Court, the Court of Appeal in Lewis recognized that an enforcement officer may in the appropriate case be required to engaged in a " “truncated” " consideration of the short-term best interests of children, but was not entitled to engage in a " “full-blown analysis” " of the best interests of the children: Lewis at paras 57-61 .

It can therefore no longer be said, as it was in Vaseekaran , that failing to defer a removal pending an assessment of the best interests of a child through the H&C application process raises a serious issue in and of itself. [ 24 ] Lewis also post-dates Tshimwenzi v Canada (Citizenship and Immigration) , 2016 FC 1029 , cited by the Applicants.

The comments in that case regarding the impact of Kanthasamy and the need to assess the best interests of children “with a great deal of attention” must therefore be considered in light of Lewis and the specific context of deferral decisions. [ 25 ] In the present case, the Enforcement Officer specifically considered the “best short-term interests of children”, which is the obligation imposed by Lewis .

The Applicants argue that in doing so, the Enforcement Officer failed to consider material evidence that was put forward on the request for a deferral, including evidence regarding the risk of the daughter being bullied or facing corporal punishment in schooling and the lack of mental health infrastructure in Guyana should such issues result in mental health concerns; the evidence of anxiety and somatic reactions the daughter suffered when she lived in Guyana; and the impact on the daughter’s wellbeing of being exposed to the violent family dispute. [ 26 ] I am satisfied that the Enforcement Officer’s decision satisfies the requirements of Lewis to conduct a truncated consideration of the short-term interests of the children.

It is important to recall in this regard that the discretion of the Enforcement Officer to defer is limited to short-term deferrals, given the context of subsection 48(2) of the IRPA : Forde at paras 40-43 . I agree with the Respondent that the issues raised by the Applicants primarily relate to the longer-term best interests of the children and therefore goes beyond what must be considered by a removal officer.

In addition, some of the evidence, such as that pertaining to the absence of available mental health services in the event that the daughter is bullied at school upon return and that this in turn results in mental health issues, lies in the realm of speculation.

This is so regardless of the underlying merit in concerns about the adverse impacts of bullying. [ 27 ] Thus while the Enforcement Officer did not refer specifically to some of the arguments and evidence put forward by the Applicants on the issue of the best interests of the children, I am not satisfied that the Applicants have established quite a strong case that the Enforcement Officer’s truncated consideration of the short-term interests of the children was unreasonable.

This is particularly so in the context of a decision made by the Enforcement Officer in the short time frame dictated by the timing of the deferral request. An applicant cannot inappropriately benefit from making lengthy submissions requesting a deferral decision shortly before the removal date and then overly scrutinize the resulting decision for failing to reference each argument and piece of evidence put forward. [ 28 ] Third, the Applicants contend that the Enforcement Officer unreasonably concluded that there was insufficient evidence of risk to Mr. Gafoor from his brother to warrant a deferral.

The Applicants highlighted a number of statements and photographs in the evidence demonstrating the violent conflict, and referred to a conclusion in the Refugee Protection Division’s decision on cessation that the violent criminality from which he sought refugee protection had not ceased to exist. [ 29 ] The Enforcement Officer was clearly alive to the asserted risk to Mr. Gafoor even though, as the Respondent notes, this was only raised by the Applicants as a subsidiary issue in the second set of submissions on the deferral request.

The Enforcement Officer reviewed the evidence on this issue and concluded that there was insufficient compelling and objective evidence of the risk to warrant a deferral, or to conclude that Mr. Gafoor or his family would likely face persecution, threat of torture, or risk to their lives on return to Guyana. This finding was made in the significant context of Mr.

Gafoor having lost his convention refugee status by having voluntarily re-availed himself of the protection of Guyana and re-established himself there. [ 30 ] To disturb that factual finding, a reviewing court would have to reassess or reweigh the evidence, which it can only do where the finding of fact was unreasonable, i.e. , was made in a perverse or capricious manner or without regard to the material: Federal Courts Act , RSC 1985, c F-7, s. 18.1(4) ( d ); Canada (Citizenship and Immigration) v Toledo , 2013 FCA 226 at paras 40-41 .

Again, the Applicants have not established that they have quite a strong case that the Enforcement Officer’s finding of fact regarding risk to Mr. Gafoor was perverse or capricious or made without regard to the material.

[31] As the Applicants have failed to establish that they have quite a strong case on the underlying application for judicial review of theEnforcement Officer’s decision. It follows that the motion for a stay pending that application for judicial review must be dismissed. B. Irreparable Harm [32] I also find that the Applicants have not demonstrated that irreparable harm, in the sense described in the case law, would result ifthe requested stay is not granted and the removal order is enforced.

The harm asserted by the Applicants is in some cases speculative,and in other cases falls within the description of harm or hardship that is an inherent consequence of a removal order. Neither constitutesdemonstrated irreparable harm sufficient to grant a stay. [33] In assessing irreparable harm, I am again guided by the Federal Court of Appeal’s decision in Baron, as well as that Court’s earlierdecisions in Atwal v Canada (Minister of Citizenship and Immigration), 2004 FCA 427 [Atwal] and Palka v Canada (Public Safety andEmergency Preparedness), 2008 FCA 165 [Palka].

Those cases set out the principles that evidence of irreparable harm must be morethan just speculative or a “series of possibilities,” and that it must go beyond the “normal hardships attendant on deportation fromCanada”: Atwal at para 14; Palka at para 12; Baron at para 69. Evidence of irreparable harm must demonstrate a “serious likelihood ofjeopardy”, a description first set out in Kerrutt v. Canada (Minister of Employment and Immigration) (1992), 53 FTR 93 (FCTD) andadopted frequently by this Court since then.

At the same time, I appreciate that as the Applicants submit, the test for irreparable harm isnot one of absolute certainty. [34] As noted above, the Applicants raise concerns about the potential that their daughter will face bullying and corporal punishment inthe Guyanese school system, providing evidence of instances in which she had been subject to each when in school in Guyana in grades 2and 3. I agree that an imminent threat of physical or psychological harm to an applicant, or to a minor likely to accompany an applicant toa country of removal, can constitute irreparable harm.

However, on balance I do not consider either the generalized evidence that somecorporal punishment is still used in schools in Guyana or the particular evidence that the daughter was bullied by one child and punishedby one teacher when in school five or six years ago to amount to non-speculative evidence of a serious likelihood of jeopardy. [35] Similarly, the evidence put forward from a psychotherapist and psychoanalyst suffers from a number of the same concernsdescribed in Palka at para 17, including pertaining primarily to stresses and feelings inherent in the enforcement of the IRPA.

This doesnot amount to clear evidence of irreparable harm arising from the removal. [36] The other arguments regarding irreparable harm provided by the Applicants are also examples of harm or hardship inherent in theremoval process.

Although the return to Guyana and the separation of the Applicants and their daughter from other important familymembers will undeniably have real impacts, the Federal Court of Appeal has been clear and consistent in establishing that such impactsare the “kinds of hardship typically occasioned by removal” that cannot constitute irreparable harm: Ghanaseharan v Canada (Ministerof Citizenship and Immigration), 2004 FCA 261 at paras 13-15; Baron at para 69; Atwal at paras 16-17.

The older cases cited by theApplicants, including Harry v Canada (Minister of Citizenship and Immigration (2000), (FC), 195 FTR 221;Martinez v Canada (Minister of Citizenship and Immigration), 2003 FC 1341; and Iskander v Canada (Minister of Citizenship andImmigration), 2002 FCT 235, must be approached with caution in the face of the more recent statements from the Court of Appeal thatfocus the approach to assessing irreparable harm. [37] The potential for losing the benefit of the judicial review of the deferral decision cannot itself constitute irreparable harm.

Were itotherwise, irreparable harm would essentially be shown in all cases involving refusal of deferral requests. Indeed, the relationshipbetween the stay request and the requested deferral is the reason for the heightened consideration on the stay motion of the issues raisedon the application. In any case, the Court of Appeal in Baron concluded that a request for deferral pending the disposition of an H&Capplication is not rendered moot by the refusal of a stay: Baron at paras 27-28, 38-43. [38] The impact of removal on the Applicants’ H&C application also cannot be considered irreparable harm.

The Court of Appeal inPalka reaffirmed that the existence of an H&C application does not itself constitute irreparable harm: Palka at paras 13-15. I do notconsider that the Applicants’ reference to statistical information regarding the relative rates of success of H&C applications for thosewho have and have not been removed from Canada changes the conclusion in Palka.

Particularly when no additional statistical orsubstantive analysis is presented as to the basis on which such applications are granted or refused, such information cannot displace thegeneral principle that each H&C application can and will be decided on its merits, regardless of the location of the applicant.

JusticeRussell Zinn of this Court has addressed these arguments previously, noting in Stewart v Canada (Public Safety and EmergencyPreparedness) (August 29, 2008, IMM-3570-08) that if undue regard is given to the location of the applicant outside Canada on theH&C application, the applicant can seek judicial review of that outcome; and in Brown v Canada (Public Safety and EmergencyPreparedness), (FC) that “[t]he statistics offered by the applicant as to the reduced number of applications approvedwhen an applicant is removed simply do not establish the causal connection she suggests”.

I therefore cannot agree with the Applicantsthat the removal will render their H&C application nugatory or that this constitutes irreparable harm. [39] Lastly, I agree with the Respondent that the impact on Amir Gafoor’s schooling cannot be considered irreparable harm. TheApplicants have not established from a factual perspective that the years of study that he has undertaken to date will be lost, particularlygiven the availability of university-level computer science programs in Guyana.

In any event, such impacts are of a nature inherent toremoval from Canada. [40] I therefore conclude that the Applicants have not established that they will suffer irreparable harm if a stay is not granted. C.

Balance of Convenience [41] While it is not necessary to address the balance of convenience, I conclude by noting that given the absence of irreparable harm tothe Applicants and the importance of implementing the obligation set out in subsection 48(2) of the IRPA to enforce removal orders “assoon as possible”, the balance appears to lie in favour of not granting the stay in these circumstances: Atwal at para 19.

[ 42 ] The Applicants’ motion for a stay pending its application for judicial review of the Enforcement Officer’s deferral decision is therefore dismissed. ORDER IN IMM-3970-19 THIS COURT ORDERS that 1 . The Applicants’ motion for a stay of removal pending this application for judicial review is dismissed. “Nicholas McHaffie” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-3970-19 STYLE OF CAUSE: RAMZAN GAFOOR, SAVITRI GAFOOR and AMIR GAFOOR v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: TORONTO, Ontario DATE OF HEARING: July 3, 2019 ORDER AND REASONS: MCHAFFIE J.

DATED: JULY 4, 2019 APPEARANCES : Farah Saleem Chris Reid For The Applicant Amina Riaz For The Respondent SOLICITORS OF RECORD : Jackman & Associates Barristers and Solicitors Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent