HUSSEIN ISMAIL KHALED ASSFOUR Applicant v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, 2023 FC 650

Date: 20230524 Docket: IMM-5654-23 Citation: 2023 FC 650 Ottawa, Ontario, May 24, 2023 PRESENT: Mr. Justice Sébastien Grammond BETWEEN: HUSSEIN ISMAIL KHALED ASSFOUR Applicant and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent ORDER AND REASONS [ 1 ] Mr. Assfour seeks a stay of his removal to Jordan, scheduled for tomorrow, May 25, 2023. I am granting his motion, essentially because a new risk to his life was never properly assessed. I. Background [ 2 ] Mr. Assfour is a citizen of Jordan. He came to Canada in February 2019 on a study permit.

He claimed asylum in July 2019, alleging that he was at risk of persecution because of his conversion to Christianity. His claim was dismissed by the Refugee Protection Division [RPD] of the Immigration and Refugee Board [IRB] in March 2021. The RPD found that Mr. Assfour was not a credible witness and did not exhibit the knowledge of Christianity that one would expect of a convert. Mr. Assfour then appealed to the Refugee Appeal Division [RAD] of the IRB. His appeal was dismissed in November 2021. The RAD disagreed with the RPD’s finding that Mr. Assfour did not convert to Christianity.

It found him credible on this issue and apparently accepted that the relationship with his family has become strained as a result. Nevertheless, the RAD agreed that Mr. Assfour did not testify in a credible manner with respect to an assault he allegedly sustained from his family members. Thus, the RAD concluded that Mr. Assfour would not be exposed to a well-founded risk of persecution because of his religious beliefs. In August 2022, this Court dismissed Mr. Assfour’s application for leave and judicial review of the RAD’s decision. [ 3 ] The Canada Border Services Agency [CBSA] then began preparing for Mr.

Assfour’s removal, which was initially scheduled for November 7, 2022. Mr. Assfour did not report for his removal. He alleges that his medical condition prevented him from doing so. A warrant for his arrest was executed on February 7, 2023. He has remained in detention since then. [ 4 ] Mr. Assfour’s removal was scheduled for February 20, 2023, on a flight from Toronto to Amman with a stopover in Montreal. While in Montreal, Mr. Assfour jumped off the plane through the back door. He sustained significant injuries to his jaw and to his legs and had to undergo surgery. [ 5 ] Mr.

Assfour’s removal was rescheduled for May 5, 2023. He applied for deferral of his removal, arguing that he is not fit to fly and that events that took place in Jordan in 2022 put his life at risk if he returns there. In essence, he alleges that in August 2022, his cousins, in the presence of his brother, murdered a young man from a different family over a financial dispute. A family vendetta ensued. In October 2022, Mr. Assfour’s father was shot and injured and his car was set on fire. Mr.

Assfour provided copies of an “inter-tribal agreement” suspending the vendetta for two months, a letter from a tribal chief attesting to the danger, a medical report regarding the father’s injuries, a report regarding the burning of the car and a complaint to the police. [ 6 ] On May 2, 2023, a CBSA officer denied Mr. Assfour’s request. With respect to fitness to fly, the officer relied on the opinion of a physician employed by the CBSA, Dr. Alikhan, instead of a psychological assessment obtained by Mr. Assfour. He also noted that Mr.

Assfour had travelled by plane between Montreal and Ottawa on March 8, 2023, and that he would be accompanied by a nurse on his way to Jordan. With respect to the new risk that arises from the events of August 2022, the officer noted that Mr. Assfour’s submissions pertained to the same issues as those reviewed by the RPD and RAD. The officer did not allude to the facts described in the previous paragraph. [ 7 ] On May 4, 2023, as I was about to hear this motion, the CBSA postponed Mr. Assfour’s removal, because the airline would not accept him on board.

I then directed that this motion be held in abeyance until a new date was set for his removal. His removal has now been set for May 25, 2023, on a different airline. [ 8 ] Mr. Assfour made a new deferral request on May 21, 2023, which was refused on May 23. This time, the officer assessed the risk related to the events of August and October 2022 and concluded as follows: I have reviewed all the documents and statements related to the alleged new risks to Mr. Hussein Ismail Khaled ASSFOUR and I acknowledge that his family engaged in criminal activity, named [ sic ] murder.

I note however that the statements advise that thanks to the “intervention of the security services (in Jordan), the lives of his family would have been in grave danger.” I note that insufficient evidence was provided to this office to show that the risks or threats to Mr. Hussein Ismail Khaled ASSFOUR were reported to the police or security services. I note that no reports or investigations were submitted to this office. Moreover, insufficient evidence was provided to show that police or security services would not be able to protect Mr. Hussein Ismail Khaled ASSFOUR upon return to Jordan.

[9] Mr. Assfour is again seeking a stay of his removal from Canada. At the hearing, both parties focused their submissions on thenegative deferral decision rendered yesterday. II. Analysis [10] Motions for stay of removal are decided according to the well-known three-part test for interlocutory injunctions: RJR – MacdonaldInc v Canada (Attorney General), (SCC), [1994] 1 SCR 311 [RJR], and R v Canadian Broadcasting Corp, 2018 SCC5, [2018] 1 SCR 196.

The Court must determine whether: (1) the applicant has shown that the underlying application raises a seriousissue; (2) the applicant will suffer irreparable harm if the stay is not granted; and (3) whether the balance of convenience favours theapplicant. A. Serious Issue [11] When the underlying application targets a decision refusing deferral, the motion for stay of removal seeks the same remedy as theunderlying application and is often the final determination of the matter.

In these circumstances, the first prong of the RJR test is appliedmore rigorously and the applicant must show “quite a strong case” and not simply a "“serious issue”:" RJR at 338–339; Baron v Canada(Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 at paragraphs 66–67, [2010] 2 FCR 311 [Baron]; Ledshumananv Canada (Public Safety and Emergency Preparedness), 2021 FC 1463 at paragraphs 19–22 [Ledshumanan].

Moreover, as theunderlying proceeding is an application for judicial review, the strength of the case must be assessed having regard to the fact that theapplicants must show that the decision challenged is unreasonable. [12] It is well established that an officer must defer removal if a new risk, not assessed by previous immigration decision-makers, hasarisen: Savunthararasa v Canada (Public Safety and Emergency Preparedness), 2016 FCA 51 at paragraph 7, [2017] 1 FCR 318;Atawnah v Canada (Public Safety and Emergency Preparedness), 2016 FCA 144 at paragraph 22, [2017] 1 FCR 153. [13] It cannot be seriously disputed that the allegations concerning the family vendetta pertain to a new risk not assessed by the RPD andthe RAD. [14] In the second deferral decision, the officer appears to have dismissed these allegations on two grounds: (1) no police reports wereprovided; and (2) police and security forces would be able to protect Mr.

Assfour. [15] In fact, police reports were provided. The officer simply ignored the evidence. At the hearing, however, counsel for the Ministersuggested that the officer’s remarks pertained to a report about the risk to Mr. Assfour, as opposed to his father. But requiring reportspertaining to Mr. Assfour personally would be illogical, as he is still in Canada. It is difficult to understand how Jordanian authoritieswould issue a report about someone who is outside the country. Moreover, Mr.

Assfour is at risk because his brother was involved in thedeadly incident, not because he did anything wrong himself. [16] I also fail to see a basis in the evidence for what appears to be a finding of state protection. If anything, the attack against the fathershows that state protection was ineffective. There is no indication in the record that the perpetrators have been arrested; only that Mr.Assfour’s father has been living in hiding since then. [17] In my view, Mr.

Assfour has shown “quite a strong case” that the officer’s decision is unreasonable. [18] Given this finding, I do not need to address the allegations of risk based on Mr. Assfour’s medical condition. B. Irreparable Harm [19] Where the serious issue pertains to the assessment of the risk the applicant would be exposed to in his home country, there is a largedegree of overlap between the first and second prongs of the RJR test. The Minister, however, argues that the bar is higher with respectto irreparable harm, and that Mr.

Assfour does not meet the test. [20] To make this submission, the Minister relies on certain aspects of the evidence that were not discussed in the deferral decision. Mr.Assfour would have failed to provide updates with respect to the family vendetta, a situation that emerged eight months ago.

He did notexplain why this evidence only came to light recently, despite the attempts to remove him in November and February. [21] These, however, are credibility concerns that should not be addressed in the context of a deferral request or motion for stay ofremoval, but in the context of a Pre-Removal Risk Assessment [PRRA].

In Atawnah at paragraphs 30–31, the Federal Court of Appealwrote: Additionally on this point, I reject the notion that, if an enforcement officer were to make negative credibility findings on thebasis of written submissions, the Federal Court could nonetheless find the decision to be reasonable. As the Judge noted atparagraph 93 of her reasons, enforcement officers should limit themselves to considering the sufficiency of the evidencebefore them. Citing Singh et al. v.

Minister of Employment and Immigration, (SCC), [1985] 1 S.C.R. 177, atpage 214, the Judge stated that the Supreme Court “has held that in light of the important interests at stake in risk-basedclaims, where a serious issue of credibility arises, ’fundamental justice requires that credibility be determined on the basis ofan oral hearing’”. In view of the decision of the Supreme Court in Singh, an enforcement officer cannot reasonably make credibility findings inthe absence of an interview.

[ 22 ] See also Thuo v Canada (Public Safety and Emergency Preparedness) , 2019 FC 48 at paragraphs 26–27 ; Surmanidze v Canada (Public Safety and Emergency Preparedness) , 2019 FC 1615 at paragraph 52 . [ 23 ] Even though it is somewhat limited, the evidence before me supports a finding of irreparable harm. There is a non-negligible (or non-speculative) risk that Mr. Assfour will be the target of an assassination attempt if he returns to Jordan. His father was targeted a few months ago. There is evidence that this is the result of a family or tribal vendetta.

The national documentation package for Jordan contains information regarding the persistence of tribal law and practices of tribal revenge in cases such as this one. In particular, a local observer said that " “in instances of ‘murder crimes,’ the relatives of the ‘offender’ are ‘vulnerable to this revenge by the relatives of the victim’ even if the ‘chosen person did nothing wrong.’” " In this context, the Minister’s assertions regarding state protection appear speculative. C.

Balance of Convenience [ 24 ] At this last stage of the test, the potential harm to the applicant, identified at the first two stages, is compared to the harm that the defendant would suffer if the stay is granted but the application for judicial review is dismissed on the merits. [ 25 ] In this particular case, there are weighty considerations on each side of the balance, and this cumulative weight is felt by the person metaphorically holding the balance. In the end, however, the balance tilts in Mr.

Assfour’s favour. [ 26 ] In this exercise, the starting point is that the public has an interest in the prompt enforcement of immigration laws. The Immigration and Refugee Protection Act , SC 2001, c 27 [ Act ], sets forth a scheme for the removal of foreign nationals who no longer have the right to be present in Canada. Under this scheme, removal can take place without judicial authorization.

Subsection 48(2) of the Act states that removal orders “must be enforced as soon as possible.” Therefore, a stay of removal is an extraordinary remedy that disrupts the normal application of the law. [ 27 ] The public interest in the prompt enforcement of removal orders is heightened where the applicant has sought to evade the application of immigration laws, for example by “going underground” or failing to report for removal.

In these circumstances, it is often said that the applicant does not have “clean hands.” The Court does not wish to reward, incentivize or condone conduct that breaches the law. [ 28 ] These considerations are at play in the present case. Mr. Assfour has twice thwarted his removal, once by failing to appear as directed and once by escaping from the plane. These are serious breaches of the law. They prompted the CBSA to expend significant law enforcement resources. [ 29 ] Nevertheless, there are legitimate questions with respect to Mr. Assfour’s state of mind during the February 20 incident. If Mr.

Assfour had a well-conceived plan to exit the plane in Montreal, one wonders why he told airline staff or security agents. Moreover, exiting a plane by the back door, jumping on a catering truck lift and then onto the tarmac, in the hopes of avoiding both injury and detection, simply defies reason. In this regard, Dr. Steiner expresses the opinion that Mr. Assfour was in a dissociative state when he did this. [ 30 ] On the other side of the balance is the risk to Mr. Assfour’s life. As I mentioned above, the evidence shows there is a non-negligible risk that someone in Jordan will attempt to take Mr.

Assfour’s life. This risk outweighs any inconvenience to the Minister. As paragraph 3(2)(

a) of the Act emphasizes, refugee protection “is in the first instance about saving lives.” When a risk to life is involved, the balance of convenience usually tilts in favour of the applicant. This is because, as my colleague Justice Sean Harrington put it, “ it is most inconvenient to be dead”: Singh v Canada (Public Safety and Emergency Preparedness) , 2015 FC 1235 at paragraph 7 . [ 31 ] Again, I emphasize that by so concluding, I am not condoning Mr. Assfour’s conduct. The protection of life, however, takes priority. III. Disposition [ 32 ] As Mr.

Assfour meets each part of the RJR test, his motion for a stay of his removal will be granted. ORDER in IMM-5654-23 THIS COURT ORDERS that the applicant’s removal from Canada is stayed until a decision is made regarding the underlying application for judicial review. "Sébastien Grammond" Judge FEDERAL COURT SOLICITORS OF RECORD

Docket: IMM-5654-23 STYLE OF CAUSE: HUSSEIN ISMAIL KHALED ASSFOUR v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: HELD BY VIDEOCONFERENCE DATE OF HEARING: May 24, 2023 ORDER AND REASONS: GRAMMOND J. DATED: May 24, 2023 APPEARANCES : Georgiana Masgras-Irshidat For The Applicant Jennifer Luu For The Respondent SOLICITORS OF RECORD : GSW Law Professional Corporation Brampton, Ontario Masgras Professional Corporation Kitchener, Ontario For The Applicant Attorney General of Canada Ottawa, Ontario For The Respondent