2018 FC, 2018 FC 1247

Date: 20181211 Docket: IMM-5625-18 Citation: 2018 FC 1247 Toronto, Ontario, December 11, 2018 PRESENT: The Honourable Madam Justice Walker BETWEEN: ENRIQUE FERNANDEZ PEREIRA MARILENE PEREIRA SILVA BIANCA FERNANDEZ PEREIRA LARISSA FERNANDEZ PEREIRA Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondents ORDER AND REASONS [ 1 ] The Applicants bring a motion for a stay of their removal from Canada to Spain scheduled for today, December 11, 2018.

The stay is sought pending the determination of the Applicants’ request for leave and judicial review of the refusal of their application for permanent residence on humanitarian and compassionate (H&

C) grounds (Decision). The following are my reasons for dismissing the motion. I. Background [ 2 ] By way of brief factual background, the Applicants are a family of four: Enrique Fernandez Pereira (father); Marilene Pereira Silva (mother); Bianca Fernandez Pereira (daughter); and, Larissa Fernandez Pereira (daughter). The Applicants are citizens of Brazil and Spain. The family left Brazil in 2006 and moved to Spain where Mr. Fernandez had citizenship. The Applicants arrived in Canada as visitors in 2012 (Mr. Fernandez) and 2013 and 2014 (the other members of the family).

Their visitor status expired, an extension was refused and an exclusion order was issued on June 23, 2017. [ 3 ] The Applicants first applied for permanent residence on H&C grounds in 2015. The application was refused on May 19, 2016. The Applicants applied for a Pre-removal risk assessment and for permanent residence on H&C grounds in 2017. Both applications were refused.

On November 15, 2018, the Applicants submitted applications to this Court for leave and judicial review of the two decisions. [ 4 ] On November 7, 2018, a Direction to Report was issued to the Applicants for removal later today to Madrid, Spain. The Applicants then brought this motion for a stay of removal in reliance on their request for leave and judicial review of the refusal of their H&C application. II.

The Decision [ 5 ] The Decision is dated May 31, 2018 and was communicated to the Applicants on October 31, 2018. [ 6 ] The Applicants challenge the Decision on the basis that the senior immigration officer (Officer) erred in considering the Applicants’ relevant H&C considerations in light of the purpose of subsection 25(1) of the Immigration and Refugee Protection Act , SC 2001, c 27 (IRPA). The Applicants cite the factors set out by the Supreme Court of Canada (SCC) in Kanthasamy v Canada (Citizenship and Immigration) , 2015 SCC 61 at para 40 .

In particular, the Applicants argue that the Officer failed to properly consider the best interests of the child (BIOC), Larissa, who is 18 and is currently enrolled in one Grade 12 correspondence course in Canada in furtherance of her high school education. The Applicants characterize the Officer’s BIOC analysis as perfunctory and state that the Officer did not assess the impact of a move at this time on Larissa’s education and future. [ 7 ] The Applicants also argue that the Officer failed to take into account the prospering business established by Mr.

Fernandez in Canada and the discrimination faced by the family in Spain as immigrants from Brazil. III. Analysis

[8] A stay is an exceptional, equitable remedy. The statutory basis for a stay of removal is found in

section 18.2 of the Federal CourtsAct, RSC 1985, c F-7, which provides that this Court may make interim orders pending the final disposition of an application for judicialreview. In considering a request for a stay, the Court applies the same test as for interlocutory injunctions.

The Supreme Court of Canada(SCC) recently restated the test as follows: At the first stage, the application judge is to undertake a preliminary investigation of the merits to decide whether theapplicant demonstrates a “serious question to be tried”, in the sense that the application is neither frivolous nor vexatious.The applicant must then, at the second stage, convince the court that it will suffer irreparable harm if an injunction isrefused.

Finally, the third stage of the test requires an assessment of the balance of convenience, in order to identify the partywhich would suffer greater harm from the granting or refusal of the interlocutory injunction, pending a decision on themerits. (R v Canadian Broadcasting Corp, 2018 SCC 5 at para 12 (CBC) references omitted.) [9] This three-pronged test is well-known. It was set out in earlier decisions of the SCC (Manitoba (Attorney General) v MetropolitanStores Ltd, (SCC), [1987] 1 SCR 110; RJR — MacDonald Inc v Canada (Attorney General), (SCC),[1994] 1 SCR 311 (RJR)).

The test has been applied in the immigration context in Toth v Canada (Employment and Immigration), (FCA) and in many subsequent decisions of this Court. The test is conjunctive, meaning that an applicant must satisfy allthree elements. The application of the test in each case is highly contextual and fact-dependent. A. Serious Issue [10] In RJR, the SCC stated that the "“serious question to be tried”" criterion is a relatively low threshold.

In order to establish theexistence of a serious issue in the underlying application for judicial review, an applicant need only show that the application is neitherfrivolous nor vexatious (CBC at para 12; Koca v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FC 473 at para14). [11] The Applicants submit that they have raised a serious issue regarding the Officer’s consideration in the Decision of the bestinterests of Larissa specifically and, more generally, the Applicants’ H&C circumstances.

They argue that the Officer did not take intoaccount Larissa’s age and the fact that she was, at the time of the Decision, in her final year of secondary education. The Applicants alsoargue that the Officer failed to take into account Larissa’s negative experiences in both Brazil and Spain and the fact that she has spentalmost all of her teenage years in Canada. Finally, the Applicants submit that the Officer, in stating that there was insufficient evidencethat Larissa would be unable to adjust to another international move, did not apply the correct test.

The test was whether a move in themiddle of her school year was in Larissa’s best interest. [12] In the context of a motion for a stay of removal, the usual practice is to refrain from making detailed comments on the merits of theunderlying application in order to preserve the freedom of the judge who will hear the merits. For this reason and in light of the urgencyof this motion, I will state only that the issues raised by the Applicants regarding the Officer’s consideration of Larissa’s best interestscannot be characterized as frivolous.

Therefore, I find that the Applicants have raised a serious issue in their application for judicialreview of the Decision. I make no comment regarding the Officer’s discussion of the Applicants’ establishment in Canada or theconditions faced by the Applicants upon any removal to Spain. B. Irreparable Harm [13] The second element of the test relates to irreparable harm. The onus is on the Applicants to demonstrate through clear andconvincing evidence that irreparable harm will occur if the stay of removal is not granted.

Irreparable harm must consist of more than aseries of possibilities and cannot be based on assertions and speculation (Atwal v Canada (Minister of Citizenship and Immigration),2004 FCA 427; Sittapalam v Canada (Minister of Citizenship and Immigration), 2010 FC 562). [14] The Applicants’ submissions regarding irreparable harm rely largely on the issues they have identified in respect of the Decision. Intheir written submissions, the Applicants submit that the most significant harm of any removal will be suffered by Larissa as she wouldbe prevented from completing her school year in Canada.

The Applicants rely on the case of Wang v Canada (Citizenship andImmigration), 2001 FCT 148 at paragraph 44, to argue that the interruption of Larissa’s school year constitutes irreparable harm to her inboth the short and longer term. [15] The Applicants also argue that their removal to Spain will result in irreparable harm to the tiling business established by Mr.Fernandez. This argument was the focus of the Applicants’ oral submissions before me. Should Mr.

Fernandez be required to leaveCanada pending determination by this Court of the Applicants’ judicial review request, the Applicants submit that many of his businesscontacts would be severed and the business would suffer irreparably.

Finally, the Applicants submit that they would be significantlyharmed by removal to Spain due to the discrimination and harassment they would face as South Americans. [16] The establishment of a serious issue does not mean that irreparable harm will necessarily result, given the very low threshold anapplicant must meet on the serious issue prong of the test (Ahmed v Canada (Citizenship and Immigration), 2015 FC 936 at para 12). [17] This Court has recognized that the interruption of a child’s school year may warrant the delay of a removal from Canada (Fatola vCanada (Public Safety and Emergency Preparedness), 2018 FC 479; Iheonye v Canada (Public Safety and Emergency Preparedness),2018 FC 375 (Iheonye)).

However, in the present case, Larissa is not registered in full-time high school. The evidence presented insupport of this argument shows that Larissa is enrolled in a one-credit correspondence course (English, Grade 12 college preparation)and, once she completes the course, she will require an additional 10.5 credits and must complete her required 40 hours of communityservice. The Applicants have not established irreparable harm to Larissa in the interruption of her studies.

Her situation is clearlydistinguishable from that of a full-time student at a high school, fully immersed in the academic and social world high school entails. Ifind no irreparable harm in the interruption of Larissa’s studies.

[ 18 ] The Applicants also submit that they will suffer irreparable harm due to disruption of Mr. Fernandez’s business. The Applicants have submitted numerous letters of support from clients and business associates. They argue that the family and their eldest daughter’s new husband are dependent on the business. However, I find that the Applicants have not submitted clear and convincing evidence of irreparable harm should Mr. Fernandez be required to leave Canada. The Applicants have asserted an inevitable break of business ties and loss of revenue.

I acknowledge that those consequences are likely to occur to some degree but they are the normal consequences of removal. The Applicants have provided no evidence that the loss of business would be irreparable. The business could be re-established upon the Applicants’ return to Canada if their H&C application is eventually successful. [ 19 ] Finally, the Applicants argue that they will suffer irreparable harm if they return to Spain due to harassment and discrimination. The Applicants have submitted evidence of general societal issues and conditions in Spain.

They have not submitted specific, credible evidence that the societal issues and conditions identified amount to or will result in irreparable harm to all or any of the Applicants. [ 20 ] I find that the Applicants have not established irreparable harm associated with an immediate removal to Spain. C. Balance of Convenience [ 21 ] The last element of the three-part test is the balance of convenience. Prejudice to the applicant must be balanced against prejudice to the respondent who is seeking to enforce the law.

Canada has an important interest in maintaining the integrity of the immigration system, notably the requirement in

section 48 of the Immigration and Refugee Protection Act to enforce removal orders as soon as is reasonably possible. [ 22 ] In the present case, I find that the balance of convenience favours the Respondents. I acknowledge the fact that the Applicants have established a business in Canada and have formed community ties.

However, in the absence of irreparable harm to the Applicants upon removal to Spain, I find that the interest of the Respondents in maintaining the integrity of the Canadian immigration system is determinative in this case. [ 23 ] In conclusion, the Applicants have not satisfied each of the three elements of the test for granting a stay of removal. Therefore, their motion is dismissed. ORDER in IMM-5825-18 THIS COURT ORDERS that: 1 . The style of cause for this matter is amended to add the Minister of Public Safety and Emergency Preparedness as a party. 2 .

The motion for a stay of the Applicants’ removal is dismissed. "Elizabeth Walker" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5625-18 STYLE OF CAUSE: ENRIQUE FERNANDEZ PEREIRA, MARILENE PEREIRA SILVA, BIANCA FERNANDEZ PEREIRA, LARISSA FERNANDEZ PEREIRA v THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: December 11, 2018 ORDER AND REASONS: WALKER J. DATED: December 11, 2018 APPEARANCES :

John Grice For The Applicants Margherita Braccio For The RespondentS SOLICITORS OF RECORD : Grice & Associates Barrister and Solicitor Toronto, Ontario For The Applicants Attorney General of Canada Toronto, Ontario For The RespondentS