ASHIK CHIRAYIL SHIBU Applicant v. THE MINISTER OF, 2023 FC 148

Date: 20230131 Docket: IMM-465-23 Citation: 2023 FC 148 Toronto, Ontario, January 31, 2023 PRESENT: Madam Justice Go BETWEEN:ASHIK CHIRAYIL SHIBUApplicantandTHE MINISTER OF PUBLIC SAFETY ANDEMERGENCY PREPAREDNESSANDTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondents ORDER AND REASONS [1] Mr. Ashik Chirayil Shibu [Applicant] seeks a stay of his removal to India, scheduled for February 6, 2023, until the finaldetermination of his application for leave and for judicial review [ALJR] of a decision dated October 27, 2022 by a Minister’s Delegate[MD] of the Canada Border Services Agency [CBSA] issuing the Applicant an exclusion order pursuant to

section 228 of theImmigration and Refugee Protection Regulations, SOR/2002-227 [IRPR] [Exclusion Order]. [2] Having considered the material filed by the parties and submissions by counsel, I am dismissing the application for a stay. Iarrived at this decision notwithstanding Applicant’s counsel’s able submission and the unfortunate situation that the Applicant findshimself in. I. Context [3] The Applicant, a citizen of India, entered Canada on a study permit on August 8, 2021.

The Applicant was enrolled in a two-year full time studies program at the Cambrian College due for completion on April 23, 2023. [4] The Applicant was issued a study permit valid until September 30, 2022. The Applicant applied to extend his study permitwith a restoration of status request from inside Canada on October 5, 2022. [5] As the Cambrian College required the Applicant to provide a copy of an extended study permit to continue studies beyondSeptember 30, 2022, the Applicant attempted to apply for a study permit by flag-poling at a port of entry [POE] on three occasions.

Thefirst attempt was on October 25, 2022 at the Niagara Bridge POE and again on the same day at the Kingston-Lewiston POE. TheApplicant was allowed to re-enter Canada each time but was advised that the POE could not process his study permit application. [6] On October 26, 2022, the Applicant flag-poled at the Sarnia Blue Water Bridge POE to apply for a study permit. The officerat the Sarnia POE refused to issue the Applicant a study permit and instead issued a report under

section 44 of the Immigration andRefugee Protection Act, SC 2001, c 27, finding him inadmissible to Canada. The Applicant was asked to return to the Sarnia POE onOctober 27, 2022, which he did, and was issued the Exclusion Order. [7] Upon issuing the Exclusion Order, the MD confiscated the Applicant’s passport. The Applicant then appeared to report atthe CBSA on January 13, 2023 at a call-in interview. The Applicant verbally requested a deferral of his removal pending disposition ofthe ALJR.

The Applicant alleges that he informed the CBSA officer that should he return to India pursuant to the Exclusion Order, hisstudies would be interrupted with only four months left, and he would be prevented from getting a study permit to return to Canada tofinish the remaining four months of his program. The Officer denied the Applicant’s deferral request. II.

Issues and Legal Test for Obtaining a Stay [8] The only issue is whether a stay of removal should be granted in these circumstances. [9] 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, 38 DLR (4th) 321 [Manitoba], RJR-MacDonald v Canada (Attorney General), (SCC), [1994] 1 SCR 311, 111 DLR (4th) 385 [RJR-MacDonald], and R vCanadian Broadcasting Corp, 2018 SCC 5, which is the test to be applied to stays of removal: Toth v Canada (Minister of Employmentand Immigration) (1988), (FCA), 86 NR 302, 11 ACWS (3d) 440 (FCA). [10] A stay of removal is warranted only if all three elements of the test are satisfied, namely: (

i) the underlying application forjudicial review 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.

[ 11 ] The application of this test is highly-contextual and fact-dependent. As the Supreme Court of Canada explained, “[u]ltimately, the question is whether granting the injunction would be just and equitable in all the circumstances of the case” : Google Inc v Equustek Solutions Inc , 2017 SCC 34 at para 1 . III. Analysis A. Serious Issue [ 12 ] The Applicant submits that he exited Canada on October 26, 2022 solely for the purpose of returning to Canada to obtain a study permit.

The Applicant did not contravene the legislative provisions by violating the terms of his original entry, by overstaying in Canada or by engaging in unauthorized work or studies; rather, the Applicant was making an application for a study permit and was seeking to enter as a student. [ 13 ] The Applicant challenges the inadmissibility report and Exclusion Order on several grounds. I will only address the main arguments raised by the Applicant. [ 14 ] First, the Applicant asserts the MD failed to consider the exemption under paragraph 190(3) (

f) of the IRPR , when the Applicant previously held a study permit in Canada and exited Canada to flag-pole solely for the purpose of obtaining a permit. The Applicant refers to his first two attempts of flag-poling and notes that each time he was allowed to re-enter Canada.

The Applicant further asserts that in issuing him the Exclusion Order, the MD did not refer to his previous successful re-entries. [ 15 ] I note however that, according to the Applicant, the officer at the Kingston-Lewiston POE granted him entry into Canada stating that he was on maintained status, and that he could remain in Canada until a decision was made on his application. In fact, the Applicant was not on maintained status, and the officer at Kingston-Lewiston may have granted the Applicant re-entry based on inaccurate information. [ 16 ] The Respondent submits that paragraph 190(3) (

f) of the IRPR does not apply to the Applicant. At the time of the Applicant’s attempt to re-enter Canada, he did not hold a temporary resident visa, he was not authorized to stay in Canada and did not have an approved application. The Respondent points out that there is limited evidence with regard to the Applicant’s first two attempts of flag- poling and what, if anything, the CBSA officer had advised the Applicant.

The Respondent concedes that while the MD did issue an Exclusion Order against the Applicant, the MD also allowed the Applicant to re-enter Canada, which may raise a question about the effect of the Exclusion Order. [ 17 ] This Court has dealt with the effect of paragraph 190(3) (f).

In two of these cases, Brito v Canada (Minister of Citizenship and Immigration) , 2003 FC 1379 and Sui v Canada (Minister of Public Safety and Emergency Preparedness) , 2006 FC 1314 [ Sui ], the Court confirmed that this provision does not require a foreign national to have a temporary resident visa if they are seeking to enter and remain in Canada solely for the purposes set out in the provision.

However, in both cases, the applicant had applied to extend their status in Canada prior to the expiry of status, and as such retained their status at the time they sought to enter Canada pursuant to subsection 183(5) of the IRPR . [ 18 ] Thus, I must agree with the Respondent that since the Applicant missed the time for filing an extension of his study permit and rather had to apply for a restoration of his status under subsection 182(1) of the IRPR , paragraph 190(3) (

f) does not assist the Applicant. The Court in Sui clarified that an applicant only retains their status pending an application to extend their existing status, but not when that status has already expired: Sui at para 32 . [ 19 ] Second, the Applicant submits that the MD erred in law in refusing the Applicant’s re-entry by failing to assess the Applicant’s case and breached procedural fairness for failing to offer a rationale for the decision. [ 20 ] The Respondent included a copy of the Case

Summary provided by the CBSA. The Case

Summary included the examination notes on the Global Case Management System [GCMS], which stated in part: In GCMS the [Applicant] had applied for a study permit 5 days after his original study permit had expired and he was seeking entry without a valid TRV. When asking why he let the study permit expire the [Applicant] stated things with his studies were going well and that he forgot to apply for an extension.

The [Applicant] also stated that he realized only 5 days prior to the study permit expiring that he needed to renew it and got stuck filling out the applicant and couldn’t get forms he needed in time. [The Applicant] stated he [sic] his family resides back in India and has no family currently living in Canada. [The Applicant] stated he lives with a friend from India and friends he had met here. [The Applicant] did not apply for restoration of status and did not have implied status as he did not apply for an extension prior to his study permit expiring on September 30 th 2022. [The Applicant] was counselled a report would be written against him for not having a valid TRV and that a Minister’s Delegate would be reviewing it. [ 21 ] Based on the GCMS notes, it would appear that the Applicant was given an opportunity to explain his circumstances before the CBSA officer sent the report to the MD for assessment, thus undermining the Applicant’s procedural fairness argument.

I notice that the GCMS notes indicate that the Applicant did not submit a restoration application, when the evidence appears to suggest otherwise. Notwithstanding that apparent error, the officer’s conclusion that the Applicant did not have a valid temporary resident visa at the time and did not have implied/maintained status was amply supported by the evidence. [ 22 ] I acknowledge that had the Applicant simply stayed in Canada while waiting for his application to be restored, he would not have been found inadmissible. However, for whatever reasons, the Applicant decided to flag-pole at POEs three times.

Each time he did

so was considered a new entry to Canada. I agree that the CBSA officer at Sarnia POE did have the discretion to allow the Applicant tore-enter, but their refusal to exercise their discretion in the Applicant’s favour did not constitute any legal error. This is so even if theyhad considered the Applicant’s pending application for the restoration of his status. [23] Based on all of the above, I find the Applicant has not established that there are serious issues arising from the underlyingALJR. B.

Irreparable Harm [24] Irreparable harm refers to harm which cannot be compensated in money; it is the nature rather than the magnitude of theharm, which is to be examined: RJR MacDonald, at p. 135. 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 harms that are demonstrated in regard to any personsdirectly affected by the removal, and who will be remaining in Canada: Tesoro v Canada (Minister of Citizenship and Immigration),2005 FCA 148. [25] The law requires that irreparable harm be established based on evidence, not assertions or speculation: Atwal v Canada(Citizenship and 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 (C.A.) at para 12. [26] Even though I find the Applicant has not raised any serious issue, I will nevertheless consider whether there is irreparableharm in effecting the Applicant’s removal. [27] According to CBSA officer Kyle Kirk’s interview notes included in the Applicant’s motion record, the Applicant was asked ifhe fears returning to India for any reason. The Applicant replied in the negative.

The Applicant stated that he “just wants a better life inCanada”. Officer Kirk afforded the Applicant some time to think about whether he may claim asylum from India. After considering for30 minutes, the Applicant stated he would not be claiming asylum at this time. [28] Also, as reflected in the GCMS notes, the Applicant’s family is in India and he has no family in Canada.

While I acknowledgethat the Applicant will not be able to complete his studies after having invested in his education over the last year and a half, I agree withthe Respondent that the Applicant has not demonstrated any long-term impact as a result of the issuance of the Exclusion Order. [29] As it now stands, even if I were to grant the stay, the Applicant would still not be able to continue with his studies as his studypermit is expired.

With the Exclusion Order in place, the Applicant may also not be able to restore his study permit, in light ofImmigration, Refugees and Citizenship Canada’s Eligibility Requirements for Restoration of Status, which requires an applicant to“remain in Canada until a decision is made”. [30] In the context of this case, given my findings on serious issues, I also reject the Applicant’s submission that potentialmootness of the underlying judicial review application resulting from their removal would amount to irreparable harm. [31] In sum, I find the Applicant has not established irreparable harm. C.

Balance of Convenience [32] In light of my findings above, the balance of convenience favours the Respondent. [33] As a final note, I want to reiterate my sympathy for the Applicant, who lost his status due to some unfortunate circumstances,and not due to any unauthorized activities on his part. Should the Applicant decide to apply for a new study permit in order to carry outfurther studies in Canada, I hope his application would be given the due consideration it deserves.

ORDER in IMM-465-23 THIS COURT ORDERS that: the application for a stay of removal pending the determination of the Applicants’ application forjudicial review is dismissed. "Avvy Yao-Yao Go" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-465-23

STYLE OF CAUSE: ASHIK CHIRAYIL SHIBU v THE MINISTER OF PUBLIC SAFETY AND, EMERGENCY PREPAREDNESS, AND, THE MINISTER FOR CETIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD VIA VIDEOCONFERENCE DATE OF HEARING: January 31, 2023 ORDER AND reasons: GO J. DATED: January 31, 2023 APPEARANCES : Veena G Gupta For The Applicant Laoura Christodoulides For The Respondents SOLICITORS OF RECORD : Veena G Gupta Nanda & Lawyers Professional Corporation Mississauga, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondents