2023 FC, 2023 FC 1723

Date: 20231219 Docket: IMM-5323-23 Citation: 2023 FC 1723 Ottawa, Ontario, December 19, 2023 PRESENT: The Honourable Mr. Justice Roy BETWEEN:BINAYDEEP PARMARApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent ORDER AND REASONS [1] Mr.

Parmar, the Applicant, comes to this Court in extremis as his departure from Canada to his country of nationality, India, is to takeplace tomorrow, December 20, 2023. [2] He seeks a stay from the order of removal pending the outcome of his leave application challenging the refusal of a temporaryresidence permit [TRP]. [3] A stay motion is governed by the well-known tripartite test enunciated in RJR --MacDonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR 311, followed in immigration cases since at least Toth v Canada (Minister of Employment andImmigration), (1988), (FCA), 86 NR 302 (FCA), and refined on the serious issue prong by cases like Wang v Canada(Minister of Citizenship and Immigration), 2001 FCT 148, [2001] 3 FC 682, and Baron v Canada (Public Safety and EmergencyPreparedness), 2009 FCA 81, [2010] 2 FCR 311.

The three prongs of the test must be met for a stay to be granted. They are: 1. Is there a serious issue to be determined in the underlying proceeding, usually a judicial review application? 2. Will the applicant suffer irreparable harm if the stay is not granted? 3. Does the balance of convenience favour the applicant? [4] Having reviewed the record presented by the Applicant and heard the able submissions of the parties, I have concluded that the staycannot be granted. In my view, none of the prongs have been satisfied.

It will suffice to focus in this case on the second prong, theexistence of irreparable harm if the stay is not granted. [5] I am familiar with some case law out of this Court which seems to suggest that the test for irreparable harm in the context ofimmigration matters is not as stringent as it may seem. I am afraid that there is binding case law from the Court of Appeal that cannot beignored. The Court of Appeal, some twenty years ago, stressed that the stay of removal constitutes an extraordinary remedy (Atwal vCanada (Minister of Citizenship and Immigration), 2004 FCA 427). It remains such.

There is binding authority in the Federal Court ofAppeal which does not leave much room for deviation. The requirements for a stay to be granted have been helpfully summarized byJustice Denis Gascon in Lima v Canada (Public Safety and Emergency Preparedness) . [6] The test for irreparable harm is very strict; it refers to the nature of the harm, not its magnitude.

As has been found repeatedly by theCourt of Appeal, it requires clear, convincing and non-speculative evidence that goes beyond consequences inherent in a removal fromCanada (Tesoro v Canada (Minister of Citizenship and Immigration), 2005 FCA 148, [2005] 4 FCR 210; Palka v Canada (Public Safetyand Emergency Preparedness), 2008 FCA 165). [7] The quality of the evidence required contributes greatly to the stringency of the test. Thus, as stated, the demonstration of irreparableharm will flow from evidence that is clear and non-speculative.

That is because it does not suffice that there is a possibility of harm, evenif irreparable. The requirement is that the irreparable harm be likely to occur (United States Steel Corporation v Canada (AttorneyGeneral), 2010 FCA 200). The evidence is said to establish that the harm will be suffered without a stay. [8] It follows that a series of possibilities, speculations or hypothetical or general assertions will not do.

In Gateway City Church vCanada (National Revenue), 2013 FCA 126, 445 NR 360 [Gateway City Church], the requirements are expressed in a colourful anddirect manner: [14] Such a general assertion is insufficient to establish irreparable harm: Holy Alpha and Omega Church of Toronto v.Canada (Attorney General), 2009 FCA 265 at paragraph 22.

That sort of general assertion can be made in every case.Accepting it as sufficient evidence of irreparable harm would unduly undercut the power Parliament has given to theMinister to protect the public interest in appropriate circumstances by publishing her notice and revoking a registration evenbefore the determination of the objection and later appeal. [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 – notdemonstrate 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 . See also Canada (Attorney General) v Oshkosh Defense Canada Inc , 2018 FCA 102 at para 25 ; Western Oilfield Equipment Rentals Ltd v M-I LLC , 2020 FCA 3 . [ 9 ] Paragraphs 15 and 16 from Gateway City Church have been referred to some 119 times in the last ten years. The binding nature of the decision cannot be doubted.

As is stated at paragraph 18 of Gateway City Church , " “(i)irreparable harm must be demonstrated, not just asserted. Demonstration is achieved by supplying particular information that empowers the Court to find the existence of harm that cannot be repaired later” " (my emphasis). [ 10 ] The relevant facts in the case at bar are relatively straightforward. Having been allowed in Canada on a study permit in 2016 in a college in the Toronto area, the Applicant never left.

He claims that his plan was to make himself eligible for a Post-Graduate Work Permit [PGWP] upon completion of his diploma as a Computer Systems Technician which would be followed, after gaining work experience for one year, by an application for permanent residence under the Canadian Experience Class. [ 11 ] However, to quality for the PGWP, the diploma had to be completed as a full-time student: he failed a requisite course in his program on more than one occasion. Thus, he had to seek an exemption to qualify.

Furthermore, the Applicant was convicted of having the care and control of a vehicle while impaired, an offence under the Criminal Code . Being prohibited from driving a car for one year as the probation order required, he breached that condition twice, thus gathering two more convictions. [ 12 ] Nevertheless, he filed for a temporary residence permit in June 2021; the application was denied in April 2023.

That decision has been made the subject of a judicial review application, which remains pending. [ 13 ] In an attempt to be granted a stay of his removal, the Applicant claims to be at risk in India because his brother, a resident of the United States since 2018, has been granted refugee status in that country as a political activist.

The Applicant’s application for a judicial review in Canada would become moot if he is removed from Canada in spite of the fact, he claims, that he may face retribution because of his brother’s activities if he were to return to India. [ 14 ] The Applicant has already benefited in 2022 from a pre-removal risk assessment [PRRA]. It was denied and the Applicant did not seek a judicial review after the PRRA was denied.

But he now argues that there exists a new risk: his brother’s refugee status is now alleged to be the source of some risk if returned to India because his brother would still be active from within the US with a political group in the Punjab. Being aware of his brother’s activities from the United States, the Applicant says that there would be intentions of people adverse to his brother to target him instead of his brother if he were to return to India. [ 15 ] The Applicant has never raised the risk posed by his brother’s political activities despite the fact he has been in the US seeking asylum.

It seems that the interest in him would be new since the PRRA decision. As for the TRP submissions, the officer reviewing them considered the Applicant’s criminal inadmissibility, the hardship alleged to await him in India and the general lack of compelling grounds to warrant the issuance of a TRP. [ 16 ] On the irreparable harm front, I have come to the conclusion that the binding case law from the Court of Appeal prevents any conclusion that harm has been established beyond a mere possibility.

The fact that the Applicant’s brother has been granted asylum in the US does not translate into significant evidence that the Applicant is at risk in India. [ 17 ] I have reviewed the information provided by the Applicant. It simply never rises to the level required. Harm simply asserted is not demonstrated. The evidence must be at a convincing level of particularity demonstrating a real probability of unavoidable harm. Indeed, the brother’s activities were known at the time the Applicant had a PRRA pending.

This is hardly a new risk and, at any rate, it does not have the required granularity. [ 18 ] As for the TRP, it can hardly qualify, by itself, as irreparable harm. The Court of Appeal has found in Baron v Canada (Public Safety and Emergency Preparedness) , 2009 FCA 81 , [2010] 2 FCR 311, that a pending H&C application does not stop the removal.

Similarly, in Canada (Minister of Public Safety and Emergency Preparedness) v Shpati , 2011 FCA 286 , [2012] 2 FCR 133, the Court of Appeal concluded that the potential mootness of a pending PRRA litigation did not warrant deferral of removal, a matter much more significant than a temporary residence permit, although it may be appropriate in some circumstances. Justice of Appeal Evans put it thus, at paragraph 35: [35] In my view, the answer to this question is no.

If it were otherwise, deferral would be virtually automatic whenever an individual facing removal had instituted judicial review proceedings in respect of a negative PRRA. This would be tantamount to implying a statutory stay in addition to those expressly prescribed by the IRPA, and would thus be contrary to the statutory scheme. [ 19 ] It follows that the motion for a stay of the removal order is dismissed as there is not present the requirement of the particular information that would allow the Court to find the evidence of harm.

The evidence must be at a convincing level of particularity so that a real probability of harm, which cannot be avoided, will result without a stay being granted.

ORDER in IMM-5323-23 THIS COURT ORDERS: The motion for a stay of the removal order to be executed on December 20, 2023, is dismissed. "Yvan Roy" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5323-23 STYLE OF CAUSE: BINAYDEEP PARMAR v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD BY VIDEOCONFERENCE DATE OF HEARING: December 19, 2023 ORDER AND reasons: ROY J. DATED: december 19, 2023 APPEARANCES : Sarah Mikhail For The Applicant Prathima Prashad For The Respondent SOLICITORS OF RECORD : Smith Immigration Law Barristers and Solicitors Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent