GLORIA STELLA MATIZ LUGO, JUAN DAVID PINZON MATIZ, v. SARA PINZON MATIZ (MINOR), 2023 FC 394

Date: 20230321 Docket: IMM-4217-22 Citation: 2023 FC 394 Toronto, Ontario, March 21, 2023 PRESENT: Madam Justice Go BETWEEN:GLORIA STELLA MATIZ LUGO, JUAN DAVID PINZON MATIZ, AND SARA PINZON MATIZ (MINOR)ApplicantsandTHE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCYPREPAREDNESS ORDER AND REASONS [1] Ms. Gloria Stella Matiz Lugo and her two children, Juan David Pinzon Matiz and Sara Pinzon Matiz [together, the “Applicants”] seeka stay of removal to Colombia scheduled for April 1, 2023.

The motion for stay is brought as interlocutory relief to an underlyingapplication for leave and for Judicial Review [ALJR] of a Refugee Protection Division [RPD] decision dated April 20, 2022 rejecting theApplicants’ claim [Decision]. By an order dated March 2, 2023, Justice McDonald granted the ALJR and set a hearing date for May 31,2023. [2] Having considered the material filed by the parties, and having heard the submissions of counsel for the parties, I am granting theApplicants’ motion for a stay of their removal. I.

Context [3] The Applicants’ claim for refugee protection was based on a fear of harm and forced recruitment from the National Liberation Army[ELN], a guerilla organization operating in Colombia. The Applicants alleged that Juan David was approached and threatened by theELN on four occasions in an effort to forcibly recruit him while he was a university student from February to April 2019. Juan Davidtraveled to the United States [US] for about one week in May 2019. Upon return to Colombia, Juan David moved to different residencesto avoid detection by the ELN.

Realizing that he could not continue to hide indefinitely and fearing for his life if located by the ELN,Juan David fled Colombia in September 2019 and submitted his claim in Canada in October 2019. [4] Ms. Gloria Lugo fled after the ELN approached her and threatened to recruit Sara, the Minor Applicant, if she failed to provide JuanDavid’s location. [5] The RPD refused the Applicants’ claims on credibility grounds. 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 [Manitoba], RJR-MacDonald v Canada (AttorneyGeneral), (SCC), [1994] 1 SCR 311 [RJR-MacDonald], and R v Canadian Broadcasting Corp, 2018 SCC 5, which isthe 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). [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. III.

Analysis [10] The Applicants submit that the RPD committed several reviewable errors in its credibility analysis, including but not limited to: Drawing a negative credibility inference on the basis that Juan David continued attending university despite the escalating threatshe received in March and April 2019, and failing to consider Juan David’s reasonable explanation for his decision to continueattending school for fear of reprisals from ELN if he fled;

Drawing a negative credibility inference from Juan David’s return to Colombia in May 2019 and failing to consider his evidencethat he hoped to resolve the issues and that he remained in hiding while in Colombia; and Finding that Juan David’s failure to seek protection in the US undermined his credibility when the jurisprudence states thatclaimants should not be prejudiced for failing to seek protection in countries through which they are only transiting. [11] The Applicants further submit that given that this Court has granted leave for judicial review, they have necessarily established aserious issue for the purpose of the tripartite test. [12] I agree. [13] As Justice McHaffie stated in Singh v Canada (Citizenship and Immigration), 2021 FC 1445, the existence of a serious issue mustbe determined with reference to the underlying application for leave for judicial review in which the stay motion is brought: at para 36.As leave has been granted in the underlying ALJR of this motion, and since Applicants must only show that the issues raised in theunderlying ALJR are not frivolous or vexatious, I find that the serious issue threshold is met: Koca v Canada (Minister of Public Safetyand Emergency Preparedness), 2009 FC 473 at para 14. [14] Further, as the Court noted in Canada (Public Safety and Emergency Preparedness) v Smith, 2019 FC 1454 at para 41: [41] The jurisprudence has established that the test to establish a serious issue is generally relatively low, being neitherfrivolous nor vexatious, but must have some chance of success at the judicial review stage (Mejia v Canada (Citizenship andImmigration), 2009 FC 658 at para 18, [2009] FCJ No 824 (QL)).

The test for serious issue is lower for the purpose of astay motion than the standard of an “arguable case” for the purpose of leave for judicial review (Adetunji v Canada(Minister of Citizenship and Immigration), 2012 FC 708 at para 40, [2012] FCJ No 698).

In the present case, the partiesagree that if the stay is granted leave for judicial review should also be granted and the hearing of the Application forJudicial Review should be expedited. [Emphasis added] [15] The Respondent does not dispute that there is a serious issue. [16] I conclude that the Applicants have met the first prong of the test. [17] The Respondent submits that irreparable harm is a very strict test and is more substantial and more serious than personalinconvenience, citing Melo v Canada (Minister of Citizenship and Immigration) (2000), (FC), 188 FTR 39 at paras20-21 and Radji v Canada (Minister of Citizenship and Immigration), 2007 FC 100 at para 40. [18] The Respondent disputes the Applicants’ claim that they would face a risk to their lives from the ELN in Colombia, on the basis thatthese risks have already been reasonably considered.

The Respondent submits as there is “no serious flaw in the RPD’s analysis, thisCourt should defer to the findings of the panel.” [19] The Respondent relies on the RPD’s findings to argue that the evidence submitted by the Applicants does not establish irreparableharm, noting the Applicants’ delay in leaving Colombia, inconsistences in the evidence, Juan David’s failure to make a refugee claim inthe US, and the Applicants’ failure to establish ongoing threats. [20] With respect, I find that the Respondent’s submission lacks logic in light of their concession on serious issue, and in light of thisCourt’s order to grant leave for judicial review, signaling the Court’s reservation about the RPD’s findings.

The Respondent cannot, onthe one hand, acknowledge that there is serious issue with respect to the RPD’s findings, and on the other, assert that the merits of thesefindings are not in question. [21] Instead, I agree with the Applicants that the errors alleged in the “serious issue” branch relate directly to the RPD’s assessment ofrisk to the Applicants’ lives. [22] I therefore find considerable overlap between the evidence and arguments with respect to serious issue and those relating toirreparable harm: Figurado v Canada (Solicitor General), 2005 FC 347, Roman v Canada (Citizenship and Immigration), , and Matthew v Canada (Citizenship and Immigration), 2022 FC 924 at para 14.

I reject the Respondent’s submission that the risksalleged by the Applicant are “speculative”, relying on the same RPD Decision that the Court has already agreed to review. [23] I conclude that the Applicants have met the second prong of the tripartite test. [24] In the third branch of the test, balance of convenience, I acknowledge that there is public interest in enforcing removal orders in anefficient, expeditious and fair manner, as the Respondent submits.

However, balancing all of the circumstances in this case, including thefact that the application for judicial review will be heard in just over two months, I find that the harm of removing the Applicants at thispoint is greater than the harm caused by delaying the removal until the underlying application is resolved. [25] Finally, the Applicants ask for the style of cause to be amended to add the Minister of Public Safety and Emergency Preparedness asa party to the application for judicial review. The Respondent does not oppose to the Applicants’ request. I will so order.

ORDER in IMM-4217-22 THIS COURT ORDERS that 1. The application for a stay of removal pending the determination of the Applicant’s application for judicial review is granted.

2 . The style of cause is amended to include the Minister of Public Safety and Emergency Preparedness as a party to the application for judicial review. "Avvy Yao-Yao Go" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-4217-22 STYLE OF CAUSE: GLORIA STELLA MATIZ LUGO, JUAN DAVID PINZON MATIZ, AND SARA PINZON MATIZ (MINOR) v THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND 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 : Tyler Goettl For The Applicant Clare Gover For The Respondent SOLICITORS OF RECORD : Tyler Goettl Barrister and Solicitor Burlington, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent