2019 FC, 2019 FC 1488

Date: 20191122 Docket: IMM-4698-19 Citation: 2019 FC 1488 Ottawa, Ontario, November 22, 2019 PRESENT: The Honourable Mr. Justice Roy BETWEEN: ISAAC NOSAKHARE OKUNDAYE PRECIOUS IROGHAMA OKUNDAYE REX-PETER OGIE OKUNDAYE RIONA-ESTHER AISOSA OKUNDAYE RAY-PAUL OSAGIE OKUNDAYE RYAN-ISAACS OGHASA OKUNDAYE Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent ORDER AND REASONS [ 1 ] This is a very peculiar motion for a stay of the execution of a removal order after some stays have already been granted.

The notice of motion speaks of a stay to be issued " “pending final determination of the merits of the application for leave and judicial review of the first refusal of deferral in this case” " . [ 2 ] A brief overview of the facts generated in support of the stay may be useful in understanding as much as can be the factual situation in this case. A departure order was issued on September 1 st , 2017, which became a deportation order on April 21, 2019. It appears that there have been already two previous requests for deferral of the removal.

First, in order to permit children to complete their 2018-19 school year; such deferral was granted. Second, a new deferral was sought in order to obtain the medical record from a hospital in Philadelphia, Pennsylvania, with respect to the treatment of one of the applicants in October 2016. That deferral was also granted, but only until July 16, 2019 in order for the medical documentation to be dealt with by the authorities. [ 3 ] These applicants have been in Canada since August 2017, having spent the previous ten months in the United States.

Their refugee protection claim was denied by the Refugee Protection Division and the Refugee Appeal Division. An application for leave and judicial review was also refused by this Court in February of 2019. The applicants have now submitted an application for permanent residence on humanitarian and compassionate grounds (March 2019). As can be seen, these applicants have known since September 1 st , 2017, when the departure order was issued, that they were in jeopardy of being removed from Canada.

Yet, they claimed in the latest attempt to defer their removal that their youngest son had suffered a seizure on the flight between Nigeria and the US in October 2016, which they claim would justify a deferral in 2019 because of the child’s condition. However, it appears that the only medical evidence was that of the treatment the child received after his arrival in Philadelphia.

As of August 2019, " “there was no evidence of any medical follow-up regarding Ray-Paul over the past two years in Canada” " (order of Justice Kane, August 7, 2019). [ 4 ] A motion for a judicial stay of the removal order set to be executed on August 8, 2019 came before this Court. The Court (order of Justice Kane, August 7, 2019) noted more than once in a 9-page order that it had no jurisdiction to entertain the motion for a judicial stay as the applicants sought to challenge a notification of removal from Canada.

There is ample case law in this Court that such notice is not an instrument that can be made the subject of a judicial review. That was the only document, dated July 24, 2019, that was on file: a challenge to a notification. The applicants had made an application for leave and for judicial review of that document which is, as said previously, only a notification that cannot be the subject of a judicial review application ( Tran v Canada (Minister of Citizenship and Immigration ), 2005 FC 394 ; Bergman v Canada (Minister of Public Safety and Emergency Preparedness ), 2010 FC 337 ).

The Court, at paragraph 7 of its order, faced a dilemma on August 7, 2019. It was put in the following words. I quote paragraph 7 of the reasons: [7] The Court could dismiss the Application for two reasons. First, it is deficient. Despite that the Applicants are represented by Counsel who would be aware of the jurisprudence that has established that a Notification for Removal is not a decision falling within the meaning of

section 18.1 of the Federal Courts Act and is not subject to judicial review, the Applicants pursued the motion on this basis. Second, if the Officer’s refusal to grant the third deferral request is viewed as the underlying decision, the Applicants’ Notice of Application for Leave and for Judicial Review requires an amendment and the Applicants must clearly meet all three parts of the test for a stay of their removal pending the determination of the amended Application. The Applicants have not provided clear, non-speculative evidence of irreparable harm.

However, this is due, at least in small part, to the need for the medical records to be obtained from the hospital in Philadelphia. The records may shed light on whether there is any risk to Ray-Paul to fly and what other precautions, if any, may be necessary to pursue to permit removal. [ 5 ] Basically, there was no evidence that could relate to irreparable harm in the three prong test that applies in stay cases, being the health condition of one of the applicants. That is the reason why the Court, on August 7, 2019, concluded that " “it is in the interests of

justice to permit a very short stay of removal to permit the Applicants to obtain the medical records from the hospital in Philadelphia,which should then be provided to the Officer to determine if there remains any concern about Ray-Paul travelling to Nigeria by air”"(para 8). Accordingly, the Court ordered a stay of removal until September 16, 2019. In effect, a stay was granted but for a limited periodof time. That constituted in effect the third stay. [6] That takes us to now. The following information can be gleaned from the affidavit filed by the principal applicant on November 15,2019.

It appears that in spite of the removal order being stayed until September 16, 2019, nothing happened in the days following. TheCanada Border Security Agency [CBSA] did not try to remove the applicants at that date or thereafter. It appears that the applicantsreceived the record coming from the United States on October 15. The principal applicant submitted those records the following day.The principal applicant was to meet with a CBSA officer on November 6. It is on that date that a new removal order was delivered to theprincipal applicant.

It seems that the notification of removal from Canada precedes the analysis of the medical report, which, at any rate,occurred on November 11, 2019. [7] That medical assessment is unequivocal. There is nothing on the record being made available to suggest that the child cannot travel.Here is the

summary of the medical opinion which has not been challenged in these proceedings: In

summary, the medical brief provided for review indicates that Ray-Paul Okundaye experienced a brief (lastingapproximately 10 seconds) uncomplicated febrile seizure on October 10, 2016 at the age of 30-months old. An underlyingcause for the fever (and seizure-like activity) was identified: Blood smears conducted at the time came back positive forMalaria and the patient was appropriately treated for his infection. There was no objective evidence to support anyongoing/recurrent seizure-like activity or epilepsy. As succinctly stated in Dr. K.

Kinsner’s letter dated October 15, 2019,“No further investigation/treatments are required” in this case. Thus, based on the additional file information provided inthis case, it still remains my professional opinion that there is no contraindication to commercial air travel at this time. It isalso my professional opinion that no specific medical requirements are needed at this time for commercial air travel.

Withthat being said, given that Ray-Paul is a minor, travel with a family member (ideally a parent or appointed guardian) isrecommended. [8] The applicants made a request, by email, on November 12, for a deferral of the removal until the school year has been completed,with the specific request that the removal be executed after June 30, 2020. The request for deferral was denied, with the removal of theapplicants scheduled for November 25, 2019.

As far as the enforcement officer is concerned, a period of about three weeks before theholiday recess will not be difficult to overcome for children of a young age and the obligation created by

section 48 of Immigration andRefugee Protection Act, S.C. 2001, c 27 [the Act] is to remove from the country people subjected to deportation as soon as possible. Decision [9] For a variety of reasons, this motion for a judicial stay of the removal order to be executed on November 25, 2019 cannot be granted.First, there is not on file an application for authorization and judicial review of the refusal to defer.

All that we find is an application forjudicial review in file IMM-4698-19 which is identical to the application for leave and for judicial review in file IMM-4003-19,including that the application seeks leave of the Court to commence an application for judicial review of the decision made by NicholasPlouffe, Inland Officer, Canada Border Services Agency dated June 19, 2019. In the case at hand, the Inland officer is Guy Le Gras andthe decision to refuse the administrative deferral is dated November 14, 2019.

As a matter of fact, the said application for authorizationfor judicial review in file IMM-4003-19 was wholly discontinued on August 26, 2019. Second, it appears that the pending judicialreview application is still with respect to some notification of removal which, as indicated by Kane J. in her order of August 7, does notconfer on this Court jurisdiction to entertain a stay of the execution of a removal order. That would suffice to dispose of the stay motion. [10] Third, this discontinuance is also relevant to the existence of a serious issue in this case.

The serious issue identified by theapplicants is found in their memorandum of fact and law. They write, at paragraph 9: 9. The Applicants submit that delivering another notification of removal before receipt of the decision in Court file IMM-4003-19 is both unreasonable and unfair to the Applicants. The Applicants have patiently waited on their pendingapplication before this court with a legitimate expectation that a determination will be made. … The applicants would have had to wait for a long time for a determination of a discontinued application.

That being the applicants’contention with respect to a serious issue there is no need to continue any further. That is because, in the motions for judicial stays, thetest applicable is the tripartite test recognized in RJR-MacDonald Inc. v Canada (Attorney General), (SCC), [1994] 1SCR 311 and Toth v Canada (Minister of Employment and Immigration), (1988) 86 NR 302, (FCA), that requires thatthe three prongs of the test be satisfied on the balance of probability.

They are: 1. that there be a serious issue to try in the underlying judicial review application; 2. there must be irreparable ham that will ensue if the stay is not granted; 3. the balance of convenience must favor the applicants. [11] By claiming that the serous issue is the lack of a decision in file IMM-4003-19, which has been made the subject of adiscontinuance, the serious issue prong cannot be satisfied.

In effect, the first problem is that, as confirmed at the hearing of the staymotion, the only underlying judicial review application is still about the notification of removal, a matter over which this Court lacksjurisdiction.

Even when considering the merits of the stay motion, there cannot be a serious issue because there is no decision withrespect to file IMM-4003-19 that can be expected since that application has been discontinued. [12] As for the irreparable harm, it refers to the "“final resolution of the applicants’ pending application of July 15, 2019”", making apassing allusion to the best interests of the child applicants who would be leaving before the school year is over. There is no evidence

whatsoever that is offered by the applicants, barely an assertion. The irreparable harm alleged is at best speculative. What is required isthat the applicants provide clear, convincing and unspeculative evidence of the irreparable harm they will suffer if returned to Nigeria(Canada (Attorney General) v Oshkosh Defense Canada Inc., 2018 FCA 102, at para 25; Lima v Canada (Public Safety and EmergencyPreparedness), ). There is no such evidence in this case.

Should also be mentioned that the applicants, in theirfactum, refer to their child being subject to seizure, which, on this record, is not accurate; the allegation that he was medically unfit toundertake a long distance flight is not supported by any evidence. [13] The case of Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81, [2010] 2 FCR 311 is bindingauthority on this Court that the jurisdiction of the deferral officer is merely to decide when, and not whether, there will be removal. Thatis a discretionary power, which requires deference on the part of the Court.

Without evidence of the irreparable harm, the applicants haveno way of claiming validly to some form of harm, let alone irreparable harm. [14] On account of the balance of convenience, the applicants do not refer to the clear requirement of

section 48 of the Act to effect theremoval from Canada "“immediately or the order must be enforced as soon as possible”" (subsection 48(2) of the Act). Public interest asenunciated by Parliament at subsection 48(2) must be taken into account. Furthermore, these applicants have already been granteddeferrals, the latest one on account of a lack of information which, when disclosed, would not have justified a stay of execution of theremoval order this August. [15] Accordingly, the request for a stay of removal can only be rejected. The Court does not have the jurisdiction to review a notificationof removal.

Furthermore, even considering the merits, none of the three branches of the test applicable for stays is met in this case. ORDER in IMM-4698-19 THIS COURT ORDERS that: 1.

The motion for a stay of the execution of the removal order is dismissed. “Yvan Roy” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-4698-19STYLE OF CAUSE: ISAAC NOSAKHARE OKUNDAYE ET AL v THE MINISTER OFCITIZENSHIP AND IMMIGRATIONPLACE OF HEARING: BY teleconference between OTTAWA, ONTARIO and WINNIPEG, MANITOBADATE OF HEARING: NOVEMBER 20, 2019ORDER AND REASONS: ROY J.DATED: november 22, 2019 APPEARANCES: Jean-Rene Dominique Kwilu (articling student) For The ApplicantS David Grohmueller For The Respondent SOLICITORS OF RECORD: Nkana Bassi Legal Services Barristers & Solicitors Winnipeg, Manitoba For The ApplicantS Attorney General of Canada Winnipeg, Manitoba For The Respondent