2018 FC, 2018 FC 1221

Date: 20181205 Dockets: IMM-5755-18 IMM-6005-18 Citation: 2018 FC 1221 Toronto, Ontario, December 5, 2018 PRESENT: Mr. Justice Grammond Docket: IMM-5755-18 BETWEEN: MULOH GARIBA SHERON Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent Docket: IMM-6005-18 AND BETWEEN: MULOH GARIBA SHERON Applicant and THE MINISTER OF SAFETY AND EMERGENCY PREPAREDNESS Respondent ORDER AND REASONS [ 1 ] The applicant, Ms. Muloh Gariba Sheron, brings a motion for a stay of her removal from Canada scheduled for tomorrow, December 6, 2018. I deny this motion, because Ms.

Gariba Sheron failed to show that she would suffer irreparable harm upon returning to her home country, Cameroon. I. Facts and Underlying Decision [ 2 ] Ms. Gariba Sheron, a citizen of Cameroon, came to Canada in 2015 on a study permit and, a few months later, claimed asylum on the basis of sexual orientation. Her claim was dismissed by the Refugee Protection Division [RPD] of the Immigration and Refugee Board [IRB] on February 29, 2016. Her appeal to the Refugee Appeal Division [RAD] of the IRB was dismissed on July 5, 2016.

An application for leave and for judicial review was dismissed by this Court on October 24, 2016. [ 3 ] Ms. Gariba Sheron then applied for a pre-removal risk assessment [PRRA]. She alleged that, being an Anglophone, her life would be at risk if she returned to Cameroon, because of the escalation of the conflict between the French-speaking majority and the English- speaking minority in that country since the fall of 2016. Her application was denied on September 11, 2018. The PRRA officer found that any risk to which Ms.

Gariba Sharon would be exposed is a generalized risk affecting the whole population of Cameroon. [ 4 ] Ms. Gariba Sheron also made an application for relief based on humanitarian and compassionate [H&C] grounds, which was refused on September 12, 2018, although the decision has not been filed in evidence before me. [ 5 ] Ms. Gariba Sheron began an application for leave and for judicial review of the decision of the PRRA officer, bearing court file number IMM-5755-18. In the context of that application, she brought a motion to this Court for the stay of her removal. [ 6 ] At the same time, Ms.

Gariba Sheron made an administrative application for the deferral of her removal, based on essentially the same grounds as the present motion for a stay. That application was refused on December 4, 2018. The enforcement officer noted that the risk allegations had been dealt with by the PRRA officer and that there was no indication of a significant deterioration of the situation in Cameroon. Ms. Gariba Sheron brought a separate application for leave and for judicial review against that decision, bearing court file number IMM-6005-18.

At the hearing, it was agreed that the stay motion would be made with respect to both applications. II. Analysis [ 7 ] The Immigration and Refugee Protection Act , SC 2001, c 27, does not require a judicial authorization to remove a foreign national from Canada. In that sense, a stay of removal is an exceptional remedy, as it interferes with the normal administrative process. [ 8 ] The statutory basis for a stay of removal is found in

section 18.2 of the Federal Courts Act , RSC 1985, c F-7, which provides that this Court may make interim orders pending the final disposition of an application for judicial review. In granting such relief, we apply the same test as for interlocutory injunctions. The Supreme Court of Canada 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, references omitted) [9] This three-pronged test is well-known. It had been set out in earlier decisions of the Supreme Court (Manitoba (Attorney General) vMetropolitan Stores Ltd., (SCC), [1987] 1 SCR 110; RJR — MacDonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR 311 [RJR]).

It was also applied in the immigration context in Toth v Canada (Minister of Employment andImmigration), (FCA). Of course, the application of this test is highly contextual and fact-dependent. A. Serious Question to be Tried [10] In RJR, the Supreme Court stated that the “serious question to be tried” criterion is a relatively low threshold (RJR at 337).

In theadministrative law context, this must be assessed while keeping in mind that the applicable standard of review is reasonableness. [11] Where a motion for stay of removal is based on the same risk as alleged in the PRRA application, the issues that are relevant to thefirst and second prongs of the RJR test are substantially the same. The standard applied, however, is different. Under the first prong,applicants need only show that their arguments are not frivolous. Under the second prong, however, they must demonstrate that they arelikely to suffer irreparable harm. The test is more demanding.

Thus, in a situation such as the present one, it is not useful to study whetherthere is a “serious question to be tried.” The real issue is that of irreparable harm. [12] Before turning to that question, I wish to address an argument that pertains specifically to the application for administrative deferral.Ms. Gariba Sheron argued that the Minister could grant her protection on the basis of

section 230 of the Immigration and RefugeeProtection Regulations, SOR/2002-227. That

section allows the Minister to impose a moratorium on removals to a particular countrywhere an armed conflict, environmental disaster or similar situation affects the entire civilian population. The Minister has not imposedsuch a moratorium on removals to Cameroon. [13] An enforcement officer cannot issue a stay on that basis in an individual case. It is obvious from the wording and the structure ofthe

section that the power to issue such a moratorium is exercised with respect to a class of cases and not to a specific case. Paragraph230(1) empowers the Minister to “impose a stay on removal orders,” in the plural, whereas sections 231, 232 and 233 speak of staying “aremoval order” in the singular, which means that only the latter can be granted with respect to individual cases. Moreover, paragraph230(3) provides that a stay granted under paragraph 230(1) does not apply to certain categories of persons, which only makes sense ifthose stays are made with respect to a wider class of persons. Indeed, this Court has previously rejected an attempt to use the

section 230power in an individual case (Samra v Canada (Minister of Citizenship and Immigration), 2005 FC 247). As a result, Ms. GaribaSheron’s argument in this respect does not raise a serious issue. B. Irreparable Harm [14] The second prong of the RJR test relates to irreparable harm. [15] A motion for stay of removal is usually not the appropriate forum to reargue harms that have been adequately assessed by previousdecision-makers (see, e.g., Goshen v Canada (Public Safety and Emergency Preparedness), 2011 FC 1380 at para 6; Lebrun v Canada(Citizenship and Immigration), 2018 CF 663 , 2018 FC 663 at para 15). Where an allegation of harm has been found not toconstitute persecution under

section 96 or risk under

section 97 of the Act, it is difficult to consider it in support of a motion for stay ofremoval. However, where the issue was not satisfactorily addressed by previous decision-makers, such harm may become relevant.Assessing whether this is the case will necessarily require a closer look at the merits of the underlying application than is necessary forthe assessment of the first prong of the RJR test (see, e.g., Ahmed v Canada (Citizenship and Immigration), 2015 FC 936). [16] Ms. Gariba Sheron asserts that the fact that she is an Anglophone puts her at risk of death or serious harm if she is to return toCameroon.

She provides a report of the International Crisis Group as well as recent press clippings that describe the escalating violencebetween governmental forces and a separatist group in the English-speaking regions of the country. There are accounts of arbitrarykillings of civilians who are suspected of separatist sympathies. Many people have fled the region, creating an influx of refugees inneighbouring Nigeria. Cameroon is described as being “on the brink of civil war.” [17] Ms.

Gariba Sheron also says that her home town, Limbé, and the city where she attended university, Buéa, have both been attacked.In her affidavit, she states that her relatives’ homes have been sacked and that she has been unable to contact them in the last two months. [18] The situation in the two English-speaking provinces of Cameroon is obviously very serious. Nevertheless, to be able to demonstratethat her removal to Cameroon would expose her to irreparable harm, Ms.

Gariba Sheron must also show that she would be personallyaffected by the armed conflict (see, for example, Bouaza v Canada (Sécurité publique et Protection civile), 2018 CF 1028 ,2018 FC 1028 at para 22). [19] The evidence in this regard is quite slim. There is a statement in Ms. Gariba Sheron’s affidavit to the effect that she has lost contactwith her family members and that their houses have been sacked. No further details are provided, in particular as to how she learned ofthose events. There is no evidence whatsoever that Ms.

Gariba Sheron would be perceived as a supporter of the separatist movement orthat she would be targeted by anyone. [20] Moreover, the documentation in the record shows that the conflict is limited to the two mainly English-speaking provinces of

Cameroon. In this regard, Ms. Gariba Sheron alleges that she would be at risk anywhere in Cameroon. She argues, in her PRRA application and before this Court, that it would be challenging for an Anglophone to live in the French-speaking parts of Cameroon. Her PRRA application includes the following statement: Finally, because of the present crisis, it is suicidal and dangerous for an Anglophone Cameroonians [ sic ] to move to another part of Cameroon.

There are 100% chances that she will be arrested, detained, harassed, tortured or killed. [ 21 ] These statements, apart from being grossly inflated, are not supported by the evidence, which does not deal with the situation in other parts of Cameroon. [ 22 ] In addition, assertions that returning to Cameroon would be difficult or challenging may be true, but such difficulties are the normal, if unpleasant, consequences of removal when a person is no longer entitled to stay lawfully in Canada ( Kanthasamy v Canada (Citizenship and Immigration) , 2015 SCC 51 at para 23 , [2015] 3 SCR 909). [ 23 ] In the result, I conclude that Ms.

Gariba Sheron has not shown that irreparable harm is likely to occur if she is removed to Cameroon. C. Balance of Convenience [ 24 ] Given the absence of irreparable harm, it is unnecessary to discuss the balance of convenience. [ 25 ] In conclusion, the three RJR criteria are not met and I will deny Ms. Gariba Sheron’s motion for a stay of her removal from Canada. ORDER in IMM-5755-18 and IMM-6005-18 THIS COURT ORDERS that the motion for a stay of the removal of the applicant is denied.

"Sébastien Grammond" Judge FEDERAL COURT SOLICITORS OF RECORD DocketS: IMM-5755-18 IMM-6005-18 STYLE OF CAUSE: MULOH GARIBA SHERON v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: TORONTO, Ontario DATE OF HEARING: DECEMBER 5, 2018 ORDER AND REASONS: GRAMMOND J. DATED: DECEMBER 5, 2018 APPEARANCES : Kingsley I. Jesuorobo For The Applicant

Christopher Crighton For The Respondent SOLICITORS OF RECORD : Kingsley I. Jesuorobo Barrister and Solicitor Toronto, Ontario For The Applicant Attorney General of Canada Ottawa, Ontario For The Respondent