2020 FC, 2020 FC 1075

Date: 20201120 Docket: IMM-5801-20 Citation: 2020 FC 1075 Ottawa, Ontario, November 20, 2020 PRESENT: Mr. Justice Sébastien Grammond BETWEEN: NARENDER KUMAR GILL Applicant and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent ORDER AND REASONS [ 1 ] Mr. Gill is seeking a stay of his removal to India scheduled for November 23, 2020.

I am denying his motion for a stay, because he has not shown that the decision to deny his application for deferral was unreasonable, nor that his removal to India would expose him to irreparable harm. [ 2 ] This motion for a stay addresses the consequences of the COVID-19 pandemic on the removal of foreign nationals from Canada. Mr. Gill’s removal was initially scheduled for March 16, 2020, but was cancelled as air travel became severely restricted. Given the current circumstances in Canada and India and the safety measures associated with air travel, the pandemic does not require the further deferral of Mr.

Gill’s removal. I. Facts [ 3 ] Mr. Gill is a citizen of India. He became a permanent resident of Canada in 2005. In 2008, he was convicted of luring a person under 14 years of age over the Internet, contrary to

section 172.1(1) (

c) of the Criminal Code , RSC 1985, c C-46 . While Mr. Gill received a conditional sentence of 18 months and two years’ probation, the maximum penalty for this offence is 14 years of imprisonment. This means that Mr. Gill became inadmissible to Canada, pursuant to section 36(1) (

a) of the Immigration and Refugee Protection Act , SC 2001, c 27 [the Act ]. [ 4 ] The immigration authorities became aware of Mr. Gill’s conviction only in 2016. The process set forth in

section 44 of the Act was initiated and resulted in the Immigration Division [ID] of the Immigration and Refugee Board [IRB] issuing a deportation order against Mr. Gill on June 18, 2018. [ 5 ] Mr. Gill appealed the deportation order to the Immigration Appeal Division [IAD] of the IRB. While he did not challenge his inadmissibility, he asked the IAD to stay the deportation order based on humanitarian and compassionate [H&C] considerations, pursuant to section 67(1) (

c) of the Act . He based his request on his alleged rehabilitation, his family in Canada, including his newly born son, and the difficulty of finding well-paying employment in India. [ 6 ] On May 2, 2019, the IAD dismissed Mr. Gill’s appeal. The IAD noted that Mr. Gill’s rehabilitation was doubtful, given that he had committed other offences, including an instance of luring a child over the Internet, which was detected by a citizen-based group called the Creep Catchers, although it did not lead to a criminal charge. The IAD found that Mr.

Gill’s establishment in Canada and the financial support he provides to his family were positive factors, but did not overcome his criminal record and lack of rehabilitation. On August 7, 2019, my colleague Justice Denis Gascon denied leave to bring an application for judicial review of the IAD’s decision. [ 7 ] Mr. Gill then applied for a pre-removal risk assessment [PRRA], invoking risks based on his caste, religion and criminal record. On January 20, 2020, his PRRA application was dismissed. The PRRA officer found that there was little evidence that Mr.

Gill would face any kind of risk covered by sections 96 and 97 of the Act upon his return to India. Mr. Gill began an application for leave and judicial review of the PRRA decision. No decision has yet been rendered on this application. [ 8 ] Shortly afterwards, the Canada Border Services Agency [CBSA] began planning Mr. Gill’s removal to Indian for March 16, 2020. Mr. Gill sought a stay of his removal, based on his application for judicial review of the PRRA decision. On March 3, 2020, Justice Gascon denied the stay. He found that Mr. Gill failed to establish any irreparable harm arising from his removal.

There was no reason to doubt the conclusions of the PRRA officer. The separation of his family and the loss of his employment were normal consequences of his inadmissibility. Moreover, Mr. Gill’s criminal record weighed heavily against a stay of his removal. [ 9 ] Subsequent events, however, made Mr. Gill’s removal impossible. On March 11, 2020, the World Health Organization declared COVID-19 to be a pandemic. In the following days, many countries, including Canada and India, implemented a vast array of measures intended to fight the pandemic, including significant restrictions on international travel. Mr.

Gill’s removal was postponed. [ 10 ] Restrictions on travel between Canada and India have recently been relaxed. CBSA notified Mr. Gill on October 15, 2020 that his removal would be rescheduled. On October 26, Mr. Gill was informed that his removal would take place on November 23. On November 6, Mr. Gill made a request for deferral of his removal, based on the risks associated with the COVID-19 pandemic, family separation and the short-term best interests of his one-year old son. On November 15, a CBSA officer denied this request. I describe the officer’s reasons at length below.

[11] Mr. Gill then applied for judicial review. Initially, his application targeted the direction to report sent to him on October 26. Hethen brought the present motion for a stay of his removal. At the hearing of this motion, counsel for Mr. Gill explained that he proceededin this manner because he had not received a decision on the request for deferral when he filed the application.

I am not certain about theexact sequence of events but, as in Patel v Canada (Citizenship and Immigration), 2018 FC 882, I am prepared to consider that theapplication is targeted at the deferral decision. [12] However, I wish to emphasize that on a motion for a stay, applicants have a duty of candour and should disclose their relevantimmigration history in full: Surmanidze v Canada (Public Safety and Emergency Preparedness), 2019 FC 1615 at paragraph 27[Surmanidze]. To Mr. Gill’s credit, he disclosed his criminal record and argued that he was rehabilitated.

However, his motion materialsmade no mention of the request for deferral, the IAD’s decision, his negative PRRA or Justice Gascon’s denial of his first stay motion.These were significant milestones of Mr. Gill’s immigration history and, as we will see below, they play an important role in thedetermination of this motion. It was unacceptable to omit them from the record. II. Analysis [13] Before turning to Mr. Gill’s situation, it is useful to clarify the legal framework governing requests for deferral and motions for stayof removal that are brought after a request for deferral is denied. A.

Legal Framework [14] Where foreign nationals no longer have a right to be present in Canada and have exhausted their remedies under the Act, a removalorder may be made against them and they must leave the country. Yet, they may ask a CBSA officer to defer the removal temporarily.Where such a request is denied, that decision is subject to judicial review in this Court. Moreover, when such an application for judicialreview is initiated, the applicant may bring a motion for stay of removal in this Court.

Thus, to understand the legal framework used bythis Court to decide motions for stay of removal, one must first study the rules regarding requests for deferral. (The legal framework issomewhat different where the motion for a stay is brought within an application for judicial review of a PRRA or H&C decision: see, forinstance, Musasizi v Canada (Public Safety and Emergency Preparedness), 2020 CF 6 , 2020 FC 6.)

(1) Request for Deferral [15] Subsection 48(2) of the Act states that "“[i]f a removal order is enforceable, the foreign national against whom it was made mustleave Canada immediately and the order must be enforced as soon as possible.”" Despite this apparently absolute language, the FederalCourt of Appeal has recognized that CBSA officers have a limited discretion to defer removal, through a procedure that has becomeknown as "“administrative deferral:”" Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 atparagraph 51, [2010] 2 FCR 311 [Baron]; Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at paragraph54, [2018] 2 FCR 229; Revell v Canada (Citizenship and Immigration), 2019 FCA 262 at paragraph 12 [Revell]. [16] Except in cases where a new risk has arisen in the country to which the applicant must be removed (Savunthararasa v Canada(Public Safety and Emergency Preparedness) 2016 FCA 51, at paragraph 7, [2017] 1 FCR 318; Atawnah v Canada (Citizenship andImmigration), 2016 FCA 144 at paragraph 22, [2017] 1 FCR 153), a request for administrative deferral must be based on a transitionalsituation that causes significant prejudice to the applicant or to related persons.

It was once said that deferral was reserved for situationsinvolving a risk of "“death, extreme sanction or inhumane treatment:”" Baron, at paragraph 51. Yet, it is now acknowledged that abroader range of situations may justify deferral.

Justice Yves de Montigny of the Federal Court of Appeal gave the following examplesof such situations: "“illness or other impediments to removal, the short term best interests of children, or the existence of pendingimmigration applications that were made on a timely basis:”" Revell, at paragraph 50; see also Kreishan v Canada (Citizenship andImmigration), 2019 FCA 223 at paragraphs 125–126; Toney v Canada (Public Safety and Emergency Preparedness), 2019 FC 1018 atparagraph 50; Newman v Canada (Public Safety and Emergency Preparedness), 2016 FC 888. [17] However, removal from Canada inevitably carries a number of negative consequences, such as the loss of employment or theseparation of family members: Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 at paragraph 23, [2015] 3 SCR 909.Save in exceptional circumstances, these consequences do not constitute grounds for deferring removal: Selliah v Canada (Minister ofCitizenship and Immigration), 2004 FCA 261 at paragraph 13. [18] One more aspect of administrative deferral must be underlined: it is temporary in nature.

The premise is that the applicant is nolonger entitled to remain in Canada and must leave the country. The only question is when. Thus, unless a completely new risk has arisenin the destination country, the grounds invoked in support of a request for deferral must relate to short-term concerns: Forde v Canada(Public Safety and Emergency Preparedness), 2018 FC 1029 [Forde]. Grounds resulting in an indefinite postponement cannot beentertained.

Administrative deferral is not a means to reverse the decisions denying the applicant the right to remain in Canada. [19] This is especially important to bear in mind when a deferral request is grounded in a risk to health.

This Court has granted stays ofremoval where boarding a plane would pose a serious health risk to the applicant, where medical treatment or diagnosis is imminent orwhere the prospect of removal would trigger a serious mental health risk: Konaté v Canada (Public Safety and EmergencyPreparedness), 2018 FC 703; Bessem v Canada (Citizenship and Immigration), ; Yuan v Canada (Public Safety andEmergency Preparedness), ; Lima v Canada (Public Safety and Emergency Preparedness), ; Liu vCanada (Citizenship and Immigration), .

While each case turns on its own facts and it is difficult to generalize, theassumption is that the deferral lasts only until the health issue is resolved: Magy c Canada (Sécurité publique et Protection civile), 2019CF 722. Justice Anne Mactavish, then a member of this Court, summarized the case law as follows: "“A deferral of removal is intendedto address short-term impediments to removal, and not life-long medical needs:”" Adeleye v Canada (Public Safety and EmergencyPreparedness), .

(2) Stay of Removal [20] When an application for judicial review is initiated,

section 18.2 of the Federal Courts Act, RSC 1985, c F-7, empowers this Courtto order a stay of proceedings in the underlying proceedings before the administrative tribunal or decision-maker. This includes theremoval of foreign nationals. Motions for stay of removal are decided on the basis of the well-known three-part test for interlocutoryinjunctions: RJR – Macdonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR 311 [RJR], and R v CanadianBroadcasting Corp, 2018 SCC 5, [2018] 1 SCR 196.

The Court must determine whether: (1) the applicant has shown that the underlyingapplication raises a serious issue; (2) the applicant will suffer irreparable harm if the stay is not granted; and (3) whether the balance ofconvenience favours the applicant. As it is grounded in equity, the application of this test is highly contextual and fact-dependent and theoverarching goal is to "“do justice as between the parties:”" Surmanidze, at paragraphs 28 and 35.

This means that the test should not beviewed as a flowchart or computer algorithm in which questions can only be answered in a binary manner and the result flowsmechanically: Mosaic Potash Esterhazy Limited Partnership v Potash Corporation of Saskatchewan Inc, 2011 SKCA 120 at paragraph26; Monsanto v Canada (Health), 2020 FC 1053 at paragraph 50.

The Court must weigh all the relevant factors in favour or against thegranting of interlocutory relief, and the RJR test is meant to guide the Court in that process. [21] 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, atparagraphs 66–67. [22] Moreover, given that the CBSA officer’s role is to assess the harm flowing from the removal of the applicant, the first two prongsof the RJR test overlap significantly: see, for example, Surmanidze, at paragraph 52; Ceja Corona v Canada (Immigration, Refugees andCitizenship), 2020 FC 269 at paragraph 21.

The CBSA officer is also entitled to consider factors that would be relevant to the third prongof the RJR test, such as the applicant’s conduct and criminal record and the public interest in ensuring the removal of persons not entitledto remain in Canada.

Thus, the issue really boils down to a single question: whether the CBSA officer unreasonably failed to take intoconsideration harm that fits into a recognized category, which counterbalances the obligation to effect removal as soon as possible. [23] Lastly, a motion for stay of removal is not an occasion to reargue the merits of previous decisions made under the Act, unless thereis a serious reason to doubt their correctness: see, for example, Medina Cerrato v Canada (Public Safety and Emergency Preparedness),2018 FC 1231 at paragraph 23; Pierre v Canada (Public Safety and Emergency Preparedness), 2020 FC 887.

Thus, for example, wherethe Refugee Protection Division [RPD] of the IRB finds that an applicant does not have a well-founded fear of persecution, the applicantcannot invoke the risk alleged before the RPD to show irreparable harm. [24] Having set the framework in which motions for stay of removal are analyzed, I can now turn to Mr. Gill’s case. The analysis isstructured along the grounds invoked by Mr. Gill in support of his request for deferral. B. COVID-19 [25] Mr. Gill argues that his removal to India would expose him to a "“good chance of dying from COVID-19”" if he is returned toIndia.

In support of this argument, he filed three newspaper articles regarding the COVID-19 situation in India. According to Mr. Gill,these articles show that since he is 42 years old and he intends to return to New Delhi, the worst hit city in India, he would be particularlyat risk of contracting COVID-19. This would bring him within the category of "“risk to death”" recognized in Baron as a ground fordeferral. [26] The deferral decision contains a detailed analysis of the risks related to a removal to India in the context of the COVID-19pandemic.

The CBSA officer first noted that most removals have been suspended since the pandemic was declared, but that, after carefulreview, certain removals can still be enforced if they are not contrary to current travel restrictions and adequate precautionary measuresare in place. The officer then compared the infection and death rates in Canada and India, based on information provided by the WorldHealth Organization.

He concluded that, adjusted to the size of each country’s population, the number of cumulative cases is similar,while Canada’s death rate and number of new cases during the preceding seven days are approximately three times higher than India’s.He concluded that Mr. Gill would not be exposed to a higher risk of contracting COVID-19 in India than in Canada. [27] The officer also noted the resumption of scheduled flights between Canada and India and the improved security measures taken byairlines and airports to prevent the transmission of COVID-19.

He stated that he himself travelled to India in the last two weeks to effecta removal and that he personally observed that these measures are "“robust.”" He also noted the advice of Canada’s Chief Public HealthOfficer that there is "“little, if any, evidence of COVID-19 transmission among air passengers.”" The officer also analyzed whether Mr.Gill faces a greater risk of contracting COVID-19 due to his age and gender. Contrary to Mr. Gill’s assertions, the officer noted thatmore vulnerable groups include people over the age of 60 or with chronic medical conditions. Mr.

Gill, who is 42 years old, did notprovide evidence that he belongs to a more vulnerable group. [28] Lastly, the officer noted that no one can say when the COVID-19 pandemic will end. Thus, Mr. Gill "“failed to provide a definitetime frame”" for the deferral of his removal. As a result, the officer found that the risk of contracting COVID-19 was not a valid groundfor deferring Mr. Gill’s removal. [29] Mr. Gill has failed to raise "“quite a strong case”" that the officer’s decision is unreasonable. Before me, he merely reiterated thearguments he had made before the officer.

This is not sufficient to show that the decision is unreasonable. Consequently, he has alsofailed to show that his removal to India would cause him irreparable harm. [30] The officer’s general approach is compatible with the teachings of the Federal Court of Appeal and this Court regarding deferralrequests, especially as they pertain to health risks. He assesses whether Mr. Gill’s removal to India would increase his risk of contractingCOVID-19, whether travel by air would pose a risk and whether any risk identified is a short-term, as opposed to a long-term, risk.

Indoing so, the officer complied with the legal constraints bearing upon him: Canada (Minister of Citizenship and Immigration) v Vavilov,

2019 SCC 65 at paragraph 112 . His application of these principles to Mr. Gill’s situation is also reasonable. [ 31 ] First, the officer’s comparison of the risk of contracting COVID-19 in Canada and India is reasonable. The reasoning is logical and based on reliable sources of information. It is also responsive to Mr. Gill’s arguments regarding vulnerable groups. The outcome is also reasonable. Given the current comparative risks of contracting COVID-19 in India and Canada and the safety measures associated with air travel, it is very difficult to argue that Mr.

Gill’s removal would increase his risk of contracting the disease. [ 32 ] Mr. Gill, however, argues that the officer failed to take into account the fact that New Delhi has the worst per capita rate of COVID-19 infection in India. As his deferral request is not in evidence before me, it is unclear whether he put this argument to the officer. Moreover, the

article he relies on provides little data that would allow for an adjustment of the officer’s calculations. In any event, once in India, nothing requires Mr. Gill to remain in New Delhi. Likewise, the

article suggests that India’s official COVID-19 statistics may be underestimated. On these issues, Mr. Gill had the burden of presenting sufficient evidence to the officer. This burden is not discharged by speculation about the inaccuracy of official statistics. Mr. Gill has not provided evidence that the risk of contracting COVID-19 is greater in India than in any other country. [ 33 ] Second, the officer’s discussion of safety measures during air travel is reasonable.

Again, it is based on trustworthy, publicly accessible information, as well as on the officer’s personal experience of recent travel to India. [ 34 ] Third, the officer rightly considered that a deferral based on the risk of contracting COVID-19 would not be temporary, as this concept is understood in the relevant case law. There is no bright line test for what is considered temporary in the deferral context. In Forde , at paragraph 43 , the Chief Justice suggested that removal cannot be deferred for more than a few months.

In the early days of the pandemic, one could have hoped that decisive measures would quickly stop the propagation of the virus. Now, even with the promise of a vaccine about to materialize, we realize how difficult it is to forecast the end of the pandemic. Regrettably, it can no longer be considered a short-term issue. C. Family and Best Interests of the Child [ 35 ] Mr. Gill also invoked the impact of his removal on his family, in particular on his partner’s two children of a previous marriage and their 18-month old son.

The officer acknowledged these submissions, but found that they were not related to short-term issues that would warrant a deferral. For example, the young boy’s allergies, which require costly foods, are not likely to disappear in the short term. Likewise, Mr. Gill’s desire to continue working in Canada to provide adequate support for his family, both in Canada and in India, is simply a plea to remain in Canada indefinitely. [ 36 ] Mr. Gill has failed to raise any serious issue with these findings. Sadly, the hardships alleged by Mr. Gill are the inevitable consequences of losing the right to remain in Canada.

Moreover, these issues have already been considered by the IAD and by Justice Gascon. There is no reason to depart from their conclusions. I am satisfied that the officer carefully considered the grounds invoked by Mr. Gill and did not merely employ boilerplate language to reject them: Galusic v Canada (Public Safety and Emergency Preparedness) , 2020 FC 223 at paragraph 42 . The officer reasonably concluded that the grounds invoked did not relate to short-term family issues: Kalaba v Canada (Public Safety and Emergency Preparedness) , 2020 FC 959 at paragraph 42 . D.

Criminal Record [ 37 ] The officer also considered Mr. Gill’s " “very serious offences” " and " “the fact that these crimes against children have been repetitive.” " He also noted that Mr. Gill had recently engaged in counselling. [ 38 ] An officer is entitled to consider an applicant’s criminal record when considering a request for deferral. Likewise, this Court may take criminality into account under the third prong of the RJR test, the balance of convenience.

At this stage of the RJR test, the Court assesses whether the harm to which the applicant is exposed outweighs the public interest in the timely enforcement of the Act : Baciu v Canada (Citizenship and Immigration) , 2020 FC 7 . In this regard, my colleague Justice William F. Pentney stated that " “the prompt removal of persons who have no right to be in Canada is an element in maintaining the integrity of the immigration and refugee system, and public confidence in it:” " Surmanidze , at paragraph 26 . The public interest in prompt removal is even weightier where the applicant, like Mr.

Gill, has committed serious crimes: see for example, Bentamtam v Canada (Public Safety and Emergency Preparedness) , 2019 FC 984 . [ 39 ] The issue of Mr. Gill’s alleged rehabilitation was addressed by the IAD, which found that Mr. Gill " “has shown little evidence of rehabilitation and that there is a strong likelihood that he could reoffend again.” " Once again, a motion for stay of removal is not a forum to reargue matters that were properly decided by previous immigration decision-makers.

In the face of the IAD’s findings, the officer was entitled to give little weight to a letter from a social worker who gave counselling sessions to Mr. Gill in the fall of 2019. [ 40 ] Thus, there was nothing unreasonable in the officer’s consideration of Mr. Gill’s criminal record and allegations of rehabilitation. III. Conclusion [ 41 ] Mr. Gill has failed to show that any aspect of the decision not to defer his removal could be unreasonable. Thus, none of the three prongs of the RJR test are met. As a result, Mr. Gill’s motion for a stay of his removal will be dismissed.

ORDER in IMM-5801-20 THIS COURT ORDERS that :

1. The applicant’s motion for a stay of his removal from Canada is dismissed. "Sébastien Grammond" Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-5801-20 STYLE OF CAUSE: NARENDER KUMAR GILL v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: held BY VIDEOCONFERENCE BETWEEN OTTAWA, ONTARIO, AND VANCOUVER, BRITISH COLUMBIA DATE OF HEARING: NOVEMBER 19, 2020 ORDER AND REASONS: GRAMMOND J. DATED: NOVEMBER 20, 2020 APPEARANCES : Johann Contreras For The Applicant Brett J. Nash For The Respondent SOLICITORS OF RECORD : Contreras Law Barrister and Solicitor Port Moody, British Columbia For The Applicant Attorney General of Canada Ottawa, Ontario For The Respondent