CHANDRAKANT PATEL Applicant v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2018 FC 882

Date: 20180831 Docket: IMM-4276-18 Citation: 2018 FC 882 Montréal, Quebec, August 31, 2018 PRESENT: The Honourable Mr. Justice Gascon BETWEEN: CHANDRAKANT PATEL Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent ORDER UPON MOTION on behalf of the Applicant, Mr.

Chandrakant Patel, for an order staying the execution of his removal to India,scheduled to take place on August 31, 2018 in the evening, pending the final disposition of his application for leave to commencejudicial review proceedings of a decision of a Canada Border Services Agency Enforcement Officer [Officer], dated August 29, 2018,which refused to defer Mr. Patel’s removal; AND UPON reviewing and considering the motion materials filed by both parties and hearing from their counsel via teleconference onAugust 31, 2018; AND UPON noting that, in Mr.

Patel’s motion record, the underlying application for leave and judicial review refers to the “direction toreport” dated August 8, 2018, and not to the Officer’s decision refusing to defer his removal.

Since a direction to report is nothing morethan an informational communication to explain when and where the removal order against an applicant is to be executed, it is not areviewable decision, and an application to review such a decision would not constitute a valid underlying application able to support astay motion (Fitt v Canada (Minister of Citizenship and Immigration), 2017 FC 614 at para 6; Bergman v Canada (Public Safety andEmergency Preparedness), 2010 FC 1129 at para 18). However, in light of Mr.

Patel’s written and oral submissions, I am ready toconsider that, for the purpose of this stay motion, the decision effectively underlying Mr. Patel’s application for leave and judicial reviewis the Officer’s decision; AND UPON considering that a stay of removal is an extraordinary equitable relief requiring special and compelling circumstances(Canada (Minister of Citizenship and Immigration) v Harkat, 2006 FCA 215 at para 10), and for which the requirements are as follows: 1. Mr.

Patel must meet the tripartite test articulated by the Supreme Court in RJR-MacDonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR 311 [RJR-MacDonald] for the issuance of interlocutory injunctions or stays, and applied to staysof removal by the Federal Court of Appeal in Toth v Canada (Minister of Employment and Immigration) (1988), (FCA), 86 NR 302 (FCA) [Toth]. 2.

This test requires him to demonstrate that: (1) there is a serious issue to be tried; (2) he would suffer irreparable harm if no orderwas granted and his removal was not stayed; and (3) the balance of convenience favours the granting of the order and the stayingof his removal (R v Canadian Broadcasting Corporation, 2018 SCC 5 , 2018 SCC5 at para 12). 3. The test is conjunctive and all three elements of the test must be met in order for Mr. Patel to be granted relief (Janssen Inc vAbbvie Corporation, 2014 FCA 112 [Janssen] at para 19).

None of the branches can be seen as an "“optional extra”" (Janssen atpara 19), and the "“failure of any of the three elements of the test is fatal”" (Canada (Citizenship and Immigration) v Ishaq, 2015FCA 212 at para 15). 4.

As the underlying application for leave and judicial review is deemed to concern the refusal to defer by the Officer, the Court mustconsider that granting a stay is one of the situations addressed in Wang v Canada (Minister of Citizenship and Immigration), 2001FCT 148 [Wang] at para 11 and its progeny, where a favourable decision on the interlocutory application effectively grants therelief sought in the underlying judicial review application.

In these circumstances, the question of whether a serious issue arisesdoes not merely require that the underlying application be found "“not frivolous or vexatious”"; instead, an elevated and morestringent standard for the establishment of a serious issue applies, pursuant to which Mr. Patel must show a likelihood of success inhis underlying request for leave and judicial review of the deferral decision (Baron v Canada (Public Safety and EmergencyPreparedness), 2009 FCA 81 [Baron] at para 66; Fox v Canada (Citizenship and Immigration), 2009 FCA 346 at para 21). 5.

The scope of an enforcement officer’s discretion under subsection 48(2) of the Immigration and Refugee Protection Act, SC 2001,c 27 [IRPA] is limited, as the officer is required by the law to enforce the removal order as soon as possible.

An officer’s discretionis reserved for those applications where failure to defer will expose the applicant to a risk of death, extreme sanctions or inhumanetreatment (Atawnah v Canada (Public Safety and Emergency Preparedness), 2016 FCA 144 at paras 13-15; Canada (Minister ofPublic Safety and Emergency Preparedness) v Shpati, 2011 FCA 286 [Shpati] at para 43; Baron at para 51; Wang at para 48).

6 . Furthermore, the standard of review applicable to a decision not to defer removal is reasonableness, meaning that the Court will only interfere with such a decision if it falls outside the range of possible, acceptable outcomes which are defensible on the facts and the law or if it otherwise lacks transparency, intelligibility and justification ( Lewis v Canada (Public Safety and Emergency Preparedness) , 2017 FCA 130 [ Lewis ] at para 42 ; Baron at para 25 ). 7 . In light of the foregoing and considering that the standard of review of the Officer’s decision is that of reasonableness, Mr.

Patel must put forward a strong case in order for his stay motion to prevail ( Baron at para 67 ); AND UPON finding t hat Mr. Patel’s stay motion should be dismissed as, for the following reasons and on a balance of probabilities, I find that he has not met the tripartite Toth test. However sympathetic Mr. Patel’s situation may look, the record before me does not meet the strict requirements developed by the courts to grant the exceptional injunctive relief sought: Serious issue 1 . First, I am not convinced that Mr.

Patel has a realistic likelihood of success in his underlying application for leave and judicial review of the Officer’s deferral decision. 2 . In his request for deferral, Mr. Patel had submitted four reasons to the Officer: (1) his establishment in Canada; (2) the separation from his sister and family; (3) the risk to his life in India; and (4) his pending application for permanent residence on humanitarian and compassionate [H&C] grounds. In the decision , the Officer carefully considered each of the arguments advanced by Mr. Patel and reviewed the evidence he provided (or noted the absence thereof).

In the end, the Officer was not convinced that Mr. Patel’s circumstances were so exceptional as to warrant a deferral. The Officer notably analysed in detail the evidence adduced by Mr. Patel on his employment and business investments in Canada, but noted the absence of evidence on any inability to obtain employment in India and to relocate there. The Officer also thoroughly assessed the impact of the removal on Mr. Patel himself as well as on his sister and her family, but found no exceptional circumstances in the emotional stress that the removal process would inevitably cause. 3 .

Turning to the allegations of risk to Mr. Patel’s life in India, the Officer highlighted the absence of any information on his alleged " “fear to life” " and observed that, in refusing Mr. Patel’s claim for refugee protection and in rejecting his Pre-Removal Risk Assessment [PRRA] application, the Canadian immigration authorities had already concluded that Mr. Patel would not face a risk to his life if removed to India. Finally, the Officer considered Mr.

Patel’s pending H&C application but pointed out that its processing would continue after his removal and that the existence of such an application did not pose an impediment to removal. 4 . In sum, the Officer reviewed Mr. Patel’s arguments in detail and rejected them. All of the Officer’s findings are supported by the language of the IRPA and by the evidence on the record, and they constitute reasonable

interpretations by the Officer. None of the arguments raised by Mr. Patel are sufficient to establish that the Officer’s decision does not fall within the range of possible, acceptable outcomes which are defensible in respect of the facts and law ( Dunsmuir v New Brunswick , 2008 SCC 9 at para 47 ) and, indeed, I conclude that the Officer’s findings are reasonable. In my view, Mr. Patel is not likely to succeed in his underlying application, as his allegations of reviewable errors are answered on the face of the Officer’s reasons.

These reasons provide the justification, transparency and intelligibility required of a reasonable decision, and the resultant determination is in accordance with the limited discretion of enforcement officers in the deferral of removal orders. There is no serious issue to be tried here. Irreparable harm 5 . Second, I also find that Mr. Patel has not provided the required evidence to establish a likelihood that he will suffer irreparable harm between now and the time his application for judicial review is finally disposed of, in the event that he is returned from Canada to India. Mr.

Patel had to demonstrate, through clear, convincing and non-speculative evidence, that there is a likelihood of irreparable such that the extraordinary remedy of a stay of removal is warranted ( Atwal v Canada (Minister of Citizenship and Immigration) , 2004 FCA 427 [ Atwal ] at para 14 ). However, he has failed to do so. 6 . Irreparable harm refers to the nature of the harm suffered rather than its magnitude. It is harm which " “either cannot be quantified in monetary terms or which cannot be cured” " ( RJR-MacDonald at 341). 7 . Irreparable harm is a very strict test.

In the context of stays of removal, it implies a serious likelihood of jeopardy to the applicant’s (or his or her family’

s) life, security or safety. It requires clear, convincing and non-speculative evidence going beyond the inherent consequences of deportation ( Palka v Canada (Public Safety and Emergency Preparedness) , 2008 FCA 165 [ Palka ] at para 12 ; Selliah v Canada (Minister of Citizenship and Immigration) , 2004 FCA 261 [ Selliah ] at para 13 ). 8 . The Federal Court of Appeal has frequently insisted on the attributes and quality of the evidence needed to establish irreparable harm in the context of injunctive relief.

Irreparable harm must flow from clear and non-speculative evidence ( AstraZeneca Canada Inc v Apotex Inc , 2011 FC 505 at para 56 , aff’d 2011 FCA 211 ; Aventis Pharma SA v Novopharm Ltd , 2005 FC 815 at paras 59- 61 , aff’d 2005 FCA 390 ). Simply claiming that irreparable harm is possible is not enough: " “[i]t is not sufficient to demonstrate that irreparable harm is ‘likely’ to be suffered” " ( United States Steel Corporation v Canada (Attorney General) , 2010 FCA 200 [ US Steel ] at para 7 ).

There must be evidence that the moving party will suffer irreparable harm if the injunction or the stay is denied ( US Steel at para 7 ; Centre Ice Ltd v National Hockey League (1994), 53 CPR (3d) 34 (FCA) at 52) . In addition, the evidence must be more than a series of possibilities, speculations, or hypothetical or general assertions ( Gateway City Church v Canada (National Revenue) , 2013 FCA 126 [ Gateway City Church ] at paras 15-16 ).

" Assumptions, hypotheticals and arguable assertions unsupported by evidence carry no weight ( " Glooscap Heritage Society v Canada (National Revenue) , 2012 FCA 255 [ Glooscap ] at para 31 ) " . " Quite the contrary, there needs to " “be evidence at a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result unless a stay is granted” " ( Gateway City Church at para 16 , citing Glooscap at para 31 ).

9. In this case, Mr. Patel essentially contends that irreparable harm results from the separation from his family (and the loss of hisemotional and moral support); the loss of the emotional and moral guidance he provides to his sister and her family in Canada; theloss of his employment and investments; and the risk to his life in India. I do have some sympathy for Mr. Patel given that he nolonger has family in India and that he has established his life in Canada for the last 15 years; however, I cannot find that thearguments and evidence submitted by Mr.

Patel are enough to meet the high threshold of irreparable harm established by FederalCourt of Appeal and the Supreme Court in the context of stays of removal. 10. Regarding his alleged risk of persecution, harm and violence in India, Mr. Patel essentially contends that his irreparable harm onthis front stems from the risk allegations which he unsuccessfully made in his refugee claim, in his initial H&C application and inhis PRRA application, and which were not found convincing by the Canadian immigration authorities. No other evidence has beenprovided by Mr. Patel.

I must discard these allegations of risk to his life as a Muslim as his claims on that front were rejected threetimes by the Canadian immigration authorities and were already found to lack persuasive evidence. This risk cannot form a basissupporting irreparable harm now (Shpati at paras 41-42; Appu v Canada (Public Safety and Emergency Preparedness), 2010 FC780 at paras 59-61; Ellero v Canada (Public Safety and Emergency Preparedness), 2008 FC 1364 at para 49). 11.

It is also well established that denying a stay of removal while an H&C application is pending, does not, unless a decision isimminent, amount to irreparable harm as the H&C application will continue to be processed and, if positive, the applicant may beallowed to return to Canada (Palka at paras 13-15). As the Federal Court of Appeal stated in Baron, at paras 87-88, "“H&Capplications are not intended to obstruct a valid removal order”". In this case, there is no evidence indicating that the decision onMr. Patel’s new H&C application is imminent. 12.

Regarding his loss of employment and his business investments, Mr. Patel must certainly be commended for his employmentrecord and business initiatives since he arrived in Canada. However, financial or economic hardship such as loss of employmentdoes not, in and of itself, establish irreparable harm. In addition, no evidence has been adduced to demonstrate that Mr. Patel couldnot find work in India. Again, Mr. Patel’s allegations on this front fall short of the requirement of irreparable harm. 13. The most compelling element of irreparable harm put forward by Mr. Patel is the effect of the removal on Mr.

Patel’s personalsituation and the loss of the emotional and moral support he receives from his family. Mr. Patel claims that the removal willseparate him from the sole family members he has left and will also result in the loss of the emotional and moral guidance hehimself offers to his sister and her family. 14. Mr. Patel relies on Tesoro v Canada (Minister of Citizenship and Immigration), 2005 FCA 148 [Tesoro] in submitting thatirreparable harm may include harm to family members and separation.

In Tesoro, the Federal Court of Appeal indeed found thatirreparable harm "“may include family separation”" when it results in consequences that are more than the "“usual consequencesof deportation”", and result in a "“serious impact”" on the emotional and psychological well-being or educational prospects orhealth of an applicant or his or her spouse or children (Tesoro at paras 33, 35). However, in the case of Mr. Patel, I must concludethat the evidence falls well short of the mark and does not meet the onus of clear and non-speculative evidence of irreparable harm.While I am sympathetic to Mr.

Patel’s personal situation and acknowledge that the removal will be difficult for him, I cannot find,in light of the case law by which I am bound, that Mr. Patel has established irreparable harm due his family separation. 15. It is trite law that there will "“inevitably be some hardship associated with being required to leave Canada”" (Kanthasamy vCanada (Citizenship and Immigration), 2015 SCC 61 at para 23).

In Melo v Canada (Minister of Citizenship and Immigration),(2000), (FC), 188 FTR 39 at para 21, this Court held that: "“if the phrase ‘irreparable harm’ is to have anymeaning at all, it must refer to some prejudice beyond that which is inherent in the notion of the deportation itself. To be deportedis to lose your job, to be separated from familiar faces and places. It is accompanied by enforced separation and heartbreak”". 16. The evidence adduced by Mr. Patel does not go beyond that as far as the loss of his emotional and moral support is concerned. 17.

With respect to the impact on his sister and her family, I observe that Mr. Patel is not the parent of the children he mentions, andthat they have family support in Canada beyond him. I find that no convincing evidence has been provided demonstrating that theneeds and short-term interests of these children would not be taken care of in the interim period between Mr. Patel’s removal andthe time his underlying application for judicial review is finally disposed of. Nor is there evidence that Mr. Patel cannot maintainsome contacts with his family during that period, or that Mr.

Patel could not provide emotional and moral guidance and support tohis sister and her family from a distance. 18. This is not to say that Mr. Patel’s family will not miss his presence and support if he is removed. I accept that. However, separationfrom family members and friends is a normal though unfortunate consequence of deportation, and such separation does not, in andof itself, amount to harm that goes beyond the inconvenience and regrettable effects of deportation (Palka at para 12; Tesoro atparas 33-35). 19. I understand that Mr.

Patel’s family and his relatives are here in Canada and not in India, that he has been residing with his sisterand her family for the past 15 years, and that they play a major role in his life as well as receive emotional and moral guidancefrom him. But, in order to accept this evidence as being enough to meet the threshold of irreparable harm, I would have to turn ablind eye on the case law and the precedents developed by the courts. This, I cannot do. If I were to do so, I would not be fulfillingthe role devolved to this Court on extraordinary injunctive reliefs and stay applications like this one.

Balance of convenience 20. Finally, the public interest favours having removal orders promptly enforced as scheduled. It is part of the Minister’s statutoryduty to apply the IRPA (Selliah at paras 21-22; Atwal at para 19). Staying a removal is an extraordinary equitable relief and section48 of the IRPA requires the enforcement of removal orders as soon as possible. It is not simply a "“question of administrativeconvenience, but implicates the integrity and fairness of, and public confidence in, Canada’s system of immigration control”"(Selliah at para 22).

21 . In addition, the fact that a person seeking a stay order has had the benefit of unsuccessful processes within the Canadian immigration system can be taken into account when deciding that the balance of convenience favours the enforcement of the law by the Minister ( Selliah at paras 21-22 ). This is clearly the situation here as Mr. Patel has been able to file a refugee claim, a first H&C application and a PRRA application, which were all denied. There is no reason to delay his removal further. 22 . In the circumstances of this case, the inconvenience to be suffered by Mr.

Patel as a result of his removal from Canada is not sufficient to outweigh the public interest in executing the removal orders; AND UPON concluding that the conditions of the Toth test for the issuance of a stay are thus not met and that there are no exceptional circumstances justifying the intervention of the Court and the exercise of my discretion to grant the relief sought; THIS COURT ORDERS that the motion for a stay of the removal of Mr. Chandrakant Patel is dismissed, without costs. "Denis Gascon" Judge