2019 FC, 2019 FC 1095

Date: 20190823 Docket: IMM-5076-19 Citation: 2019 FC 1095 Ottawa, Ontario, August 23, 2019 PRESENT: The Honourable Mr. Justice Roy BETWEEN:ABDILAHI AHMED ELMIApplicantandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] Mr. Elmi seeks a judicial stay following the refusal of an administrative deferral of removal [ADR] on August 13, 2019. Mr.

Elmi’sremoval is scheduled to take place between August 21 and August 28, 2019. [2] In order to succeed, an applicant on a motion for a stay of execution of a valid removal order must satisfy the tri-partite test for aninterlocutory injunction (RJR-MacDonald Inc. v Canada (Attorney General), (SCC), [1994] 1 SCR 311[RJR-MacDonald Inc.] and Toth v Canada (Minister of Employment and Immigration), (1988) 86 NR 302, (FCA)): 1. Is there a serious issue to consider in the underlying application? 2. Will there be irreparable harm if the stay is not granted? 3. Does the balance of convenience favour the applicant? If Mr.

Elmi fails on any of the test’s three prongs, his motion before this Court will be denied. In fact, he fails each of the prongs in thiscase and the motion will be dismissed. [3] The respondent is right that the underlying application for judicial review is defective. It is difficult to decipher what decision theleave application seeks to challenge and, more importantly, on what basis.

The leave application seems to suggest that the intent is tochallenge the "“danger opinion”", issued on June 25, 2019, and the ADR refusal of August 13, yet it is acknowledged by the applicantthat he is out of time to file an application to challenge the danger opinion on judicial review. The applicant speculates that an extensionof time will be granted, thus being capable of establishing, among other elements, that his claim has some merit and he can explainreasonably the delay (Lee v Canada (Correctional Service), 2017 FCA 228). There is no indication how that can be achieved.

If theapplicant seeks to challenge both the "“danger opinion”" and the ADR, he is then in violation of rule 10(2)(

b) of the Federal CourtsCitizenship, Immigration and Refugee Protection Rules (SOR/93-22), as he is seeking to challenge two decisions in one application,which is not permitted. [4] There is no clarity either on the remedy sought as the application for leave and judicial review speaks only of an "“order temporarilydelaying the execution of the removal order” for the two applications". One is left with the impression that the applicant challenges thedanger opinion only with a view to having the deportation deferred.

There is no specific relief sought with respect to the danger opinionin the application filed on August 16, 2019. Nevertheless, in view of the explanation supplied by counsel for the applicant, and given thesignificance for the individual of a removal order, I would not dispose of the stay motion on that narrow basis of an irregularity of aprocedural nature. There are more serious defects that go to the heart of the motion.

Serious Issue [5] In spite of the confusion in the leave application, which is only one-page long, the motion appears to focus on the ADR refusal as theapplicant claims that the refusal is unreasonable in view of the evidence, together with the assessment of the risks facing the applicant ifhe returns to Somalia being itself unreasonable. As for the danger posed to the public in Canada, that appears to be left unchallenged. Ihave already pointed out that the remedy sought on judicial review focuses exclusively on obtaining a deferral of the removal order, thesame remedy sought on the motion before the Court.

There is not even an attempt in the leave application to explain how the deferral’srefusal and the risk assessment could be unreasonable. That finds an echo in the written and oral submissions addressing the threebranches of the test for the judicial deferral. [6] The submissions are equally deficient in that they completely lack in required specificity.

The burden on an applicant for a stay likethe one before the Court is to show that there is a serious issue to be considered in the judicial review application in that there is alikelihood of success (Wang v Canada (Minister of Citizenship and Immigration), 2001 FCT 148 , [2001] 3 FC 682, 204 FTR 5[Wang]; Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81, [2010] 2 FCR 311 [Baron]). Merelydeclaring that there is a serious issue takes the applicant nowhere near where he must be. In fact, that is far from the Wang test.

Thematter of the decision being unreasonable makes the issue a frivolous and vexatious one because there is no way of ascertaining what theserious issue is. Declaring, as the applicant does, that the refusal is unreasonable is not advancing a serious issue. In Baron, the Court ofAppeal wrote:

[67] While I agree entirely with my colleague’s approach to the “serious issue” prong of the tripartite test in the context of amotion to stay a removal order, I would add the following. In determining whether a serious issue exists so as to warrant thegranting of a stay of removal, the Judge hearing the motion should clearly have in mind, first of all, that the discretion todefer the removal of a person subject to an enforceable removal order is limited, as explained in Simoes, above, and,particularly, in Wang, above.

Second, the Judge should also have in mind that the standard of review of an enforcementofficer’s decision is that of reasonableness. Thus, for an applicant to succeed on a judicial review challenge of such adecision, he or she must be able to put forward quite a strong case. In my view, the appellants herein clearly did not havesuch a case to put forward. In sum, an applicant must show how the decision is unreasonable, taking into account that the officer has a limited discretion. [7] Mr. Elmi suggests further in his submissions on his stay motion that his removal from Canada to Somalia would infringe

section 7 ofthe Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK),1982, c 11 [the Charter], the issue having been addressed in the danger opinion. Nothing more is said. Thus, that too suffers from thesame lack of specificity. That contention is no more than stated, without providing any argument, let alone an argument raising thematter to an issue likely to succeed. Either way, the test cannot be met without a demonstration of likelihood of success.

As the SupremeCourt found in RJR-MacDonald Inc., the judge "“""must make a preliminary assessment of the merits of the claim”" (p. 337) so that thejudge will be satisfied that the underlying application is neither frivolous nor vexatious. Stating an issue will not do. It must be shownthat it is serious. That was not done in this case. Irreparable harm [8] On the issue of irreparable harm, the only argument offered is that the judicial review application would become moot if theapplicant is removed from Canada. This does not constitute irreparable harm.

The Federal Court of Appeal in Canada (Public Safety andEmergency Preparedness) v Shpati, 2011 FCA 286, [2012] 2 FCR 133 [Shpati], paras 29-30, found that mootness of a judicial reviewapplication (in the Shpati case, the judicial review application was concerned with a pre-removal risk assessment) is not a barrier toremoval. There is on this record no evidence of any other alleged harm, let alone of irreparable harm, other than, generally speaking, theinherent consequences of deportation.

Irreparable harm must be demonstrated through clear and convincing evidence (Atwal v Canada(Minister of Citizenship and Immigration), 2004 FCA 427, 330 NR 300). There is none. Balance of convenience [9] Finally, the balance of convenience favours the respondent. The public interest in law enforcement is not to be neglected and it is tobe assessed in comparison to other considerations. Here the balance is squarely on the side of the public interest in having IRPAenforced.

First, the discretion of the officer tasked with removing the applicant is very limited (s. 48 of the Immigration and RefugeeProtection Act, S.C. 2001, c. 27 [IRPA], which provides that the removal order is to be enforced as soon as possible; Simoes v Canada(Minister of Citizenship and Immigration), (FC), 187 FTR 219, para 12; Baron, paras 49 à 51).

Section 48 constitutesthe expression of the public policy as enacted by Parliament. The officer can defer the execution of the removal order; there is nodiscretion to cancel the order. In other words, it is not so much whether the person will be removed and rather when this will happen.Indeed the reasons for deferring are themselves limited and none are invoked in this case. Second, Mr. Elmi has been found to be adanger to the public in Canada in view of his inadmissibility on grounds of serious criminality. The applicant is a habitual criminal withmore than 50 convictions on his record, many involving violence.

Indeed there are more charges pending for which a trial is scheduledfor October 2019. Third, the so-called "“danger opinion”" (it is the Minister’s opinion issued pursuant to para 115(2)(

a) of IRPA) runsfor more than 25 pages and provides a global assessment in order to allow for an exception to the principle of non-refoulement, includinga risk assessment if the applicant is removed to his country of nationality. At best, it is said to be unreasonable or constituting a violationof

section 7 of the Charter, without any explanation. Fourth, the danger opinion is clear-eyed in that it acknowledges that the transitionto Somalia will pose a challenge to the applicant and even weighs compassionate and humanitarian considerations. It was not counteredby this applicant.

Finally, there is no serious issue to consider in the underlying application and there is no evidence of irreparable harm.The Court must agree that the balance of convenience falls in favour of the public interest in the applicant being removed in view of therecord before the Court. [10] The Court adds that not only did the respondent note that the judicial review application was dearly deficient, but there were strongallegations that the applicant did not come to this Court with clean hands, given statements made on the record that may have beenuntrue or misleading.

Since the stay motion did not meet any of the three branches of the test, it is not necessary to comment further onthe possible application of the "“clean hands doctrine”". Conclusion [11] Given the remedy sought, the applicant has to show the existence of a serious issue in the underlying application such that there is alikelihood of success. Merely raising an issue does not make it a serious one. Without an articulation of the argument, the applicant didnot even meet the lower threshold of the application being neither frivolous nor vexatious.

Furthermore, there was no irreparable harmshown by clear and convincing evidence. The only argument advanced by the applicant is that his removal would render hisapplication(

s) moot. The Federal Court of Appeal has disposed of the argument in Shpati, but also in Baron (para 50). As the FederalCourt of Appeal has said, "“(g)eneral assertions cannot establish irreparable harm. They essentially prove nothing”" (Gateway CityChurch v Canada (National Revenue), 2013 FCA 126, 445 NR 360, para 15). Finally, on this record, the balance of convenience favoursthe Minister. The motion for a stay must be dismissed. ORDER in IMM-5076-19

ORDER in IMM-5076-19 THIS COURT ORDERS that : 1 . The motion for a stay of the execution of the removal order, scheduled to take place between August 21 and August 28, 2019, is dismissed. “Yvan Roy” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: imm-5076-19 STYLE OF CAUSE: ABDILAHI AHMED ELMI v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: BY teleconference between OTTAWA, ONTARIO and edmonton, alberta DATE OF HEARING: august 22, 2019 ORDER AND REASONS: ROY J.

DATED: august 23, 2019 APPEARANCES : Idowu Ohioze For The Applicant Galina Bining For The Respondent SOLICITORS OF RECORD : Andrew Law Office Barristers & Solicitors Edmonton, Alberta For The Applicant Attorney General of Canada Edmonton, Alberta For The Respondent