2018 FC, 2018 FC 1146

Date: 20181114 Docket: IMM-4492-18 Citation: 2018 FC 1146 Toronto, Ontario, November 14, 2018 PRESENT: The Honourable Mr. Justice Zinn BETWEEN:ABIOLA OLUWASAYO OKEApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent ORDER AND REASONS [1] The Applicant is bi-sexual and a citizen of both Nigeria and South Africa.

Underlying this motion is his application for leave andjudicial review of a negative Pre-Removal Risk Assessment [PRRA] decision dated June 13, 2018, and received by the Applicant onAugust 29, 2018. [2] I have read and considered the evidence and the submissions contained in the motion and application records filed by the parties, andthe oral submissions of counsel at the Court in Toronto, Ontario, on Tuesday, November 13, 2018.

Having considered and applied theconjunctive tri-partite test in Toth v Canada (Minister of Employment and Immigration) (1988) (FCA), 86 NR 302(FCA), I have determined that this motion must be dismissed. [3] I find that the Applicant has established that there is at least one issue in the underlying application that is neither frivolous norvexatious; namely whether the officer engaged in a selective reading of the evidence or ignored evidence that was contrary to hisfindings. [4] I do not find that the Applicant has established on clear and convincing evidence that he is likely to suffer irreparable harm if thisstay is not granted.

He alleges that he will suffer harm if returned to South Africa because of homophobia and xenophobia in thatcountry. [5] The applicant lived in South Africa for 15 years prior to coming to Canada and he has offered but little evidence of any harm hesuffered. His refugee claim was dismissed by both the Refugee Protection Division [RPD] and the Refugee Appeal Division [RAD]. His application for leave to review the RAD decision was denied by this Court.

Although his claim was dismissed on the merits basedon credibility, both the RPD and the RAD found that he would have an Internal Flight Alternative [IFA] in either Johannesburg orCapetown. The officer found that as well. [6] While the record before the Court contains evidence that xenophobia is on the upswing in Johannesburg, but the evidence that hewould be personally targeted there because of his Nigerian nationality is slim. The evidence in the record is that Capetown is tolerant ofhis sexuality and there is no evidence that xenophobia is significant in that city.

In any event, I agree with the Respondent that therecord shows that the Applicant could seek and would likely obtain state protection. Accordingly, there is no likelihood of risk of harmon either ground established. [7] It is further alleged that irreparable harm will arise if he is unable to continue to care for the autistic adult now in his care. First, I amnot satisfied that he is irreplaceable and thus the harm is not irreparable.

Second, I am not persuaded that the harm to this person meetsthe test of irreparable harm to the Applicant, as is required by the jurisprudence. [8] Having had the benefit of many of the processes in place in Canada’s refugee determination system, I am of the view that the balanceof convenience rests with the Respondent. [9] For these reason, the motion cannot succeed. ORDER in IMM-4492-18 THIS COURT ORDERS that the motion for a stay of the execution of the removal of the Applicant from Canada scheduled forNovember 15, 2018, is dismissed. “Russel W. Zinn” Judge FEDERAL COURT SOLICITORS OF RECORD

DOCKET: IMM-4492-18 STYLE OF CAUSE: ABIOLA OLUWASAYO OKE v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: November 13, 2018 ORDER AND REASONS: ZINN J. DATED: November 14, 2018 APPEARANCES : Richard Wazana For The Applicant David Cranton For The Respondent SOLICITORS OF RECORD : WAZANALAW Barrister and Solicitor Toronto, Ontario For The Applicant Attorney General of Canada For The Respondent