2019 FC, 2019 FC 1098

Date: 20190823 Docket: IMM-5154-19 Citation: 2019 FC 1098 Ottawa, Ontario, August 23, 2019 PRESENT: The Honourable Mr. Justice Roy BETWEEN:JANA LACHOVAApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent ORDER AND REASONS [1] Jana Lachova seeks a judicial stay of a removal order to be executed on August 26, 2019, following the refusal of a deferral by anInland Enforcement Officer.

The applicant has challenged the refusal through an application for leave and judicial review pursuant tosection 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. [2] The applicant was born in Slovakia and she is a citizen of that country. She came to Canada in 1999 on a visitor’s visa and never left.According to the decision to refuse the administrative deferral of the removal order, on August 8, 2019, Ms.

Lachova remained in thiscountry without status until June 6, 2018 when she attended the office of the Canada Border Services Agency (CBSA); she stated that shehad overstayed her status in Canada. Two weeks later, on June 21, 2018, she made an application for permanent residence based onhumanitarian and compassionate grounds. That application is pending. [3] An exclusion order was issued on August 28, 2018 and a series of pre-removal interviews ensued, leading to a direction to report forremoval from Canada on August 26, 2019 a month ago. [4] Ms.

Lachova’s attempt at getting an administrative deferral is essentially based on the medical condition of her 12-year old son. Itappears that he suffers from recurrent epistaxis (bleeding from the nose); the information comes from a four-line note, from a medicaldoctor, issued 5 days after the decision to deny the deferral. The note was not before the decision maker when the decision was made.

Itis less than likely that such evidence would be admissible on judicial review as it comes after the decision to be reviewed has been issued(Bernard v Canada (Revenue Agency), 2015 FCA 263, 479 NR 189). [5] The motion record before the Court also contains an October 2014 report from a psychologist concerning the child’s attention deficithyperactivity disorder (ADHD). The more recent information on file made available by the applicant consists of an Individual EducationPlan in a school where he is in a regular class with resource assistance.

There is no other information on the child other than he is aCanadian citizen. Thus, on this motion record, not a word on the family situation and no details on the condition itself are offered. TheInland Enforcement Officer noted in his decision the paucity of information, saying "“that little information has been provided bycounsel with respect to this child’s medical condition or treatment he may require”". Thus, the assertion made by counsel that themedical needs cannot be met if the child is to leave with his mother cannot be substantiated in the view of the decision maker.

Themedical note of August 13, 2019 does not change the situation. Indeed, as noted by the Officer, as a Canadian citizen the child may comeand go, leave Canada and return, as he pleases. [6] In order to be successful before the Court, Ms. Lachova must satisfy the Court of the three branches of the test for the issuance of aninterlocutory remedy such as a stay (RJR-MacDonald Inc. v Canada (Attorney General), (SCC), [1994] 1 SCR 311 andToth 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? An applicant will fail if one of the three prongs is not satisfied. [7] The applicant contends that "“the underlying application might succeed on its merits … given the tangible evidence that waspresented to the CBSA Officer”". She argues that the failure to take into account the merits of the deferral application makes thenegative decision frivolous and vexatious (memorandum of fact and law, para 9). [8] The applicant seeks to satisfy the wrong test.

The serious issue, when the matter is the refusal of a deferral, is not that the underlyingapplication might succeed.

It is rather that there is a likelihood of success following a close examination of the merits of the underlyingjudicial review application (Wang v Canada (Minister of Citizenship and Immigration), 2001 FCT 148 , [2001] 3 FC 682, 204FTR 5, as endorsed in Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81, [2010] 2 FCR 311[Baron], para 66). [9] The Baron Court of Appeal went on to state that the standard of review being reasonableness, the close examination of the merits ofthe underlying application requires that reasonableness be accounted for, which in turn means that "“"he or she must be able to put

forward quite a strong case " ” " (para 67). Clearly, such is not the case here. [ 10 ] The irreparable harm prong did not fare any better. The binding authorities of the Federal Court of Appeal require that the applicant demonstrate irreparable harm through clear and convincing evidence ( Atwal v Canada (Minister of Citizenship and Immigration), 2004 FCA 427 , 330 NR 300 ): " “ " Irreparable harm must constitute more than a series of possibilities " ” " (para 14). That continued to find echo in the jurisprudence through the years. In Gateway City Church v.

Canada (National Revenue) , 2013 FCA 126 , 445 NR 360 , the Court states: [15] General assertions cannot establish irreparable harm. They essentially prove nothing: It is all too easy for those seeking a stay in a case like this to enumerate problems, call them serious, and then, when describing the harm that might result, to use broad, expressive terms that essentially just assert – not demonstrate to the Court’s satisfaction – that the harm is irreparable. ( Stoney First Nation v.

Shotclose, 2011 FCA 232 at paragraph 48 .) Accordingly, “[a]ssumptions speculations, hypotheticals and arguable assertions, unsupported by evidence, carry no weight”: Glooscap Heritage Society v. Minister of National Revenue , 2012 FCA 255 at paragraph 31 . [16] Instead, “there must be evidence at a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result unless a stay is granted”: Glooscap, supra at paragraph 31. See also Dywidag Systems International, Canada, Ltd. v. Garford Pty Ltd. , 2010 FCA 232 at paragraph 14 ; Canada (Attorney General) v.

Canada (Information Commissioner) , 2001 FCA 25 , 268 N.R. 328 at paragraph 12 ; Laperrière v. D. & A. MacLeod Company Ltd. , 2010 FCA 84 at paragraph 17 . [ 11 ] This case never rises beyond generalities; it is without any granularity in view of the evidence offered by the applicant. The applicant chose to offer very little evidence, such that there is nothing other than some vague possibility which cannot satisfy the irreparable harm criterion. No irreparable harm has been shown on this record. [ 12 ] It follows that the motion for a stay of the removal order to be executed on August 26, 2019 must be dismissed.

ORDER in IMM-5154-19 THIS COURT ORDERS that : 1 . The motion for a stay of the removal order to be executed on August 26, 2019, is dismissed. “Yvan Roy” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5154-19 STYLE OF CAUSE: JANA LACHOVA v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: BY TELECONFERENCE BETWEEN OTTAWA, ONTARIO, mississauga, ontario AND toronto, ontario DATE OF HEARING: AUGUST 23, 2019 ORDER AND REASONS: ROY J.

DATED: august 23, 2019 APPEARANCES : Peter Chmiel For The Applicant Veronica Cham For The Respondent SOLICITORS OF RECORD : Barrister & Solicitor Mississauga, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent