TILAL HABIB ABDALLA ALI Applicant v. THE MINISTER OF IMMIGRATION, REFUGEES, AND CITIZENSHIP, 2023 FC 550

Date: 20230414 Docket: IMM-4121-23 Citation: 2023 FC 550 Toronto, Ontario, April 14, 2023 PRESENT: Madam Justice Go BETWEEN: TILAL HABIB ABDALLA ALI Applicant and THE MINISTER OF IMMIGRATION, REFUGEES, AND CITIZENSHIP Respondent and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Added Respondent in Motion ORDER AND REASONS [ 1 ] Mr. Tilal Habib Abdalla Ali [Applicant] seeks a stay of removal to Sudan scheduled for April 18, 2023.

The motion for stay is brought as interlocutory relief to an Application for Leave and for Judicial Review [ALJR] of a decision dated March 14, 2023 rejecting the Applicant’s Pre-Removal Risk Assessment [PRRA] Application [Decision]. [ 2 ] Having considered the material filed by the parties, and having heard the submissions of counsel for the parties, I am dismissing the Applicant’s motion for a stay of his removal. I. Context [ 3 ] The Applicant, a citizen of Sudan, was granted Convention Refugee status in Canada by the Refugee Protection Division [RPD] on March 22, 2001.

The Applicant states that his refugee claim was based on his fear of persecution and torture by the former government of Omar al-Bashir for his refusal to be recruited into the military. [ 4 ] Cessation proceedings were initiated against the Applicant after he took several trips to Sudan. The Applicant lost his Convention refugee and permanent resident status by an RPD decision dated February 28, 2022 [Cessation Decision].

On March 21, 2023, the Federal Court dismissed the Applicant’s judicial review application of the Cessation Decision. [ 5 ] Following the receipt of a PRRA notice on November 14, 2022, the Applicant submitted a PRRA form on November 21, 2022, along with several medical documents concerning his health. The Applicant was self-represented in the PRRA application. [ 6 ] In the PRRA form, the Applicant specified Sudan as the country where he will be at risk, stating that it is “very risk” there. In addition, the Applicant mentioned medical grounds as reasons why he cannot return to his home country.

The Officer rejected the Applicant’s PRRA application based on insufficient evidence. II. Preliminary Issues [ 7 ] Through counsel, the Applicant filed new evidence to support his ALJR. The Applicant asks the Court to consider the new evidence as part of the motion record. The Applicant argues that the new evidence is submitted to assist the Court in having a better understanding of the Applicant’s circumstances and is relevant to a proper determination of this motion.

As such, the Applicant submits the new evidence falls under the exceptions laid down in Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency , 2012 FCA 22 [ Access Copyright ]. [ 8 ] Access Copyright sets out three exceptions to the general rule that a judicial review application is to be determined based on the record that was before the decision-maker.

These are: (1) affidavits that provide general background in circumstances when that information might assist the reviewing court in understanding the issues relevant to the judicial review; (2) affidavits bringing to the attention of the reviewing court procedural defects that cannot be found in the decision-maker’s record; and (3) affidavits highlighting the complete absence of evidence before the administrative decision-maker: Access Copyright at para 20 . [ 9 ] In this case, the new evidence that the Applicant seeks to introduce includes documents relating to his prior refugee claim and the cessation hearing, as well as identity documents.

The Applicant also submits as new evidence an excerpt from the Immigration, Refugees and Citizenship Canada Manual concerning PRRA applications [IRCC Manual]. [ 10 ] Interestingly, the Respondent also filed new evidence as part of their motion record. The Respondent’s materials included the Decision in its entirety, and it indicated that the Applicant provided to the Officer a copy of his Application Record from his judicial review of the Cessation Decision [Application Record].

The Respondent also submitted the updated IRCC Manual with respect to the processing of PRRA applications that came into effect in 2013, with a new webpage link containing the policy, procedures and guidance used by IRCC staff.

[11] For the purpose of this motion, I agree to consider the new evidence submitted by both parties on the basis that they fall within theexceptions as set out in Access Copyright. III.

Issues and Legal Test for Obtaining a Stay [12] The only issue is whether a stay of removal should be granted in these circumstances. [13] In order to obtain a stay, the Applicant 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). [14] 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. [15] 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. IV. Analysis A.

Serious Issue [16] The Applicant argues that the Officer’s reasoning in the Decision was inadequate or incomplete. The Applicant submits that theOfficer is under a clear duty to provide adequate reasons of how they conducted the risk assessment under sections 96 and 97 of theImmigration and Refugee Protection Act, SC 2001, c 27 [IRPA].

The Applicant submits that the Officer failed to show how theyconsidered the overall prospective risk based on sections 96 and 97 of the IRPA, which is multi-faceted and broader. [17] The Applicant further argues that the Officer failed to conduct their own independent research, and unreasonably relied on theevidence provided by the then self-represented Applicant. [18] I reject the Applicant’s arguments. [19] Let me begin by emphasizing that the Applicant has come before the Court asking for an extraordinary relief based on anincomplete record, most notably an incomplete version of the Decision, while pleading that the Officer failed to discharge their duty.

TheApplicant has not provided any explanation why he has submitted an incomplete version of the Decision as part of the stay motion,which has the effect of misleading the Court. [20] In the Decision, the Officer noted the Application Record the Applicant submitted. The Officer also noted that most of thedocuments and articles describing the situation in Sudan focused on the state of the country after the coup and military takeover thatoccurred on October 25, 2021.

Further, the Officer acknowledged the current political instability created by the coup, military takeoverand ongoing protests, but found that the Applicant did not establish with any specificity what risk he would personally face because ofhis current situation. [21] I acknowledge counsel’s argument that as a self-represented litigant, the Applicant may not be able to provide the necessary countrycondition evidence to support his application. However, in this case, the Applicant did provide a copy of the Application Record, whichwas prepared with assistance from counsel.

As the Respondent points out, the Application Record contained a number of articles anddocuments regarding the country conditions in Sudan, including an

article about forced conscription, which formed the basis of theApplicant’s initial refugee claim. [22] I also agree with the Respondent that while a PRRA officer does have a duty to conduct independent research, the onus is still onthe Applicant to define the alleged risk: Faiz v Canada (Public Safety and Emergency Preparedness), 2009 FC 833 at para 15. [23] In this case, the Applicant did not identify the specific risks he will face in Sudan, nor did he connect the country condition evidenceto his personal circumstances in his PRRA application.

As such, I find that no serious issue arises based on the Officer’s failure toconsult further country condition reports in their evaluation. B. Irreparable Harm [24] 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. [25] 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 v

Canada (Minister of Citizenship and Immigration), (FCA), [1999] 4 FC 206 (CA) at para 12. [26] 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. [27] I have considered the Applicant’s health conditions, but find that the Applicant has not adduced sufficient and non-speculativeevidence that would constitute irreparable harm.

The Applicant provided several reports dated 2014 and one dated 2019 as part of hisPRRA application, as well as a list of his current prescriptions. The Applicant did not make any submissions before the Officer as to howhe would suffer as a result of these medical conditions should he be returned to Sudan. No such evidence was provided to this Court forthe stay motion either. [28] As the Applicant has failed to provide clear and convincing evidence demonstrating irreparable harm, I find that the Applicant hasfailed to meet the second prong of the tripartite test. C.

Balance of Convenience [29] In light of the above, the balance of convenience favours the Respondent. ORDER in IMM-4121-23 THIS COURT ORDERS that the application for a stay of removal pending the determination of the Applicant’s application forjudicial review is dismissed. "Avvy Yao-Yao Go" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-4121-23 STYLE OF CAUSE: TILAL HABIB ABDALLA ALI v THE MINISTER OF IMMIGRATION,REFUGEES, AND CITIZENSHIP AND THE MINISTER OF PUBLIC SAFETYAND EMERGENCY PREPAREDNESS PLACE OF HEARING: HELD VIA VIDEOCONFERENCE DATE OF HEARING: April 14, 2023 ORDER AND REASONS: GO J.

DATED: April 14, 2023 APPEARANCES: Oltion Toro For The Applicant Nicole Paduraru For The RespondentS SOLICITORS OF RECORD:

Oltion Toro Lewis & Associates Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The RespondentS