2023 FC, 2023 FC 1091

Date: 20230810 Docket: IMM-4834-23 Citation: 2023 FC 1091 Ottawa, Ontario, August 10, 2023 PRESENT: The Honourable Mr. Justice Zinn BETWEEN:FABIO GOMEZ ORTIZ MONICA DAMARIS TIBACUY SAMACA ANDERSON DAVID GOMEZ TIBACUY JUSTIN DUVAN GOMEZ TIBACUYCHAROL ELIF GOMEZ TIBACUYApplicantsandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent ORDER AND REASONS [1] The Applicants are seeking a temporary stay of their removal from Canada to Colombia, scheduled for August 11, 2023.

If granted,the stay would be in effect until the final determination of their application for leave and judicial review of a negative decision of theRefugee Protection Division [RPD]. [2] The test to be applied in this motion is well established: Toth v. Canada (Minister of Employment and Immigration), (1988) (FCA), 86 NR 302 (FCA). The Applicants must establish: (

i) a serious issue is raised by the underlying application forjudicial review; (ii) irreparable harm would result from removal in the period between now and when the application is disposed of; and(iii) the balance of convenience favours granting the stay. [3] The Applicants claimed they required protection from paramilitary groups in Colombia. Specifically they alleged that the principalapplicant [Fabio] had a history of being targeted by them and most recently they sought to recruit his son [Anderson]. [4] The determinative issue for the RPD was whether the Applicants had an internal flight alternative [IFA].

It found that they had anIFA in either Santa Marta/Barranquilla or Cartagena. [5] They submit that the decision raises a serious issue as to whether the RPD reasonably assessed the second prong of the IFA test:whether it is reasonable for the Applicants to relocate to the IFA. They submit that Anderson submitted medical evidence that he sufferssuicidal ideation and is at risk of suicide if returned to Colombia and the RPD failed to reasonably assess this evidence.

Specifically, theysay that it was unreasonable for the RPD to conclude that the Applicants can access mental health support in the proposed IFAs, and"“that the challenges associated with healthcare coverage do not make the proposed IFA unreasonable.”" [6] The threshold for establishing a serious issue is very low – lower that that required for leave to review being granted.

For thepurposes of this motion, I will accept, without deciding, that the Applicants have met that requirement and have established that there is aserious issue raised in the underlying application for leave and judicial review. [7] Irreparable harm is established on clear, convincing, and non-speculative evidence that they will suffer irreparable harm between nowand the time their application for leave and for judicial review is finally disposed of.

This burden rests on the Applicants. [8] They submit that they have shown that there is a serious issue in the underlying application for leave and judicial review and that"“[r]eturning them to Colombia where they would face the risks they fear before their application has been reviewed in the judicialreview process constitutes irreparable harm.”" [9] They cite and rely on the decisions in Thalang v Canada (Citizenship and Immigration), 2007 FC 743 at para 23, Resulaj v Canada(Minister of Citizenship and Immigration), 2003 FC 1168 at para 5, and Koca v Canada (Public Safety and Emergency Preparedness),2009 FC 473 at para 28.

They submit that these authorities establish that where a Pre-Removal Risk Assessment [PRAA] decision isbeing challenged that removal to the country where the applicant fears harm prior to an assessment of the legality of decision denyingprotection constitutes irreparable harm. [10] In my view, the present circumstances are quite different from the above authorities. If an applicant establishes that there is a seriousissue raised in a PRRA decision, then it can be said that the entire risk assessment is questionable.

The decision here that underlies themotion is not a PRRA decision, but a decision of the RPD on a claim for protection. The RPD found that the Applicants had an IFA inColombia.

Even if that decision is ultimately found to be unreasonable, the Applicants must still establish to the Court that they willsuffer irreparable harm if the stay is not granted. [11] They rely on the medical report submitted to argue that Anderson is at a "“real risk of suicide.”" It states, with regards to Anderson: A history of suicidal thoughts, self-harm, young age, male gender, and feelings of fear, powerlessness and helplessness areall high risk factors for suicide.

It is my opinion that Anderson will be at a high risk of becoming actively suicidal if he andhis family are forced to return to Colombia. [12] However, I agree with the Respondent that the report does not address treatment should Anderson become "“actively suicidal.”" I

further agree with the Respondent that unlike the report’s author, the RPD did examine treatment options available in Colombia. The Applicants have failed to address why those options are not available or would not address any issues Anderson may have on return. [ 13 ] For these reasons, the Applicants have failed to establish irreparable harm should the stay not be granted. [ 14 ] It is not necessary to examine whether the Applicants have established that the balance of convenience favours them. Had they established irreparable harm, I would have found that the balance of convenience did favour them.

ORDER THIS COURT ORDERS that this motion for a stay of removal is dismissed. "Russel W. Zinn" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-4834-23 STYLE OF CAUSE: FABIO GOMEZ ORTIZ, MONICA DAMARIS TIBACUY SAMACA, ANDERSON DAVID GOMEZ TIBACUY, JUSTIN DUVAN GOMEZ TIBACUY, CHAROL ELIF GOMEZ TIBACUY v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD BY VIDEOCONFERENCE DATE OF HEARING: August 9, 2023 ORDER AND REASONS: ZINN J. DATED: august 10, 2023 APPEARANCES : Jack C. Martin For The Applicants John Loncar For The Respondent SOLICITORS OF RECORD : Jack C.

Martin Barrister and Solicitor Toronto, Ontario For The Applicants Attorney General of Canada Toronto, Ontario For The Respondent