2018 FC, 2018 FC 1227

Date: 20181206 Docket: IMM-5811-18 Citation: 2018 FC 1227 Toronto, Ontario, December 6, 2018 PRESENT: Mr. Justice Grammond BETWEEN: HOOVER REALES DELGADO Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondents ORDER AND REASONS [ 1 ] The applicant, Mr. Hoover Reales Delgado, brings a motion for a stay of his removal from Canada scheduled for tomorrow, December 7, 2018. I dismiss this motion, because he has failed to show that he would suffer irreparable harm upon return to his home country, Colombia. I. Facts and Underlying Decision [ 2 ] Mr.

Reales, a citizen of Colombia, describes himself as a human rights defender. He says he worked with victims of torture, forced displacement and extortion and people who had lost family members. Among other things, he assisted persons who needed to seek protection or to flee the country. [ 3 ] He came to Canada in 2009 as a permanent resident, sponsored by his wife who had previously obtained refugee status. However, he returned to Colombia a few months later to assist his mother who was severely ill.

While there, he became estranged from his wife who had remained in Canada and began a relationship with a woman, on whose family’s behalf he had advocated. [ 4 ] As a result of his activities, Mr. Reales was the victim of three attempted kidnappings in 2010 and 2011. He believes that the criminal gangs who had murdered certain persons for whom he advocated were also behind those attempts. He also received death threats during the same period. [ 5 ] In 2014, Mr. Reales decided to return to Canada.

Shortly after his arrival, immigration authorities determined that he had failed to comply with the residency requirement set forth in

section 28 of the Immigration and Refugee Protection Act , SC 2001, c 27 [the Act], and issued a departure order against him. His appeal to the Immigration Appeal Division of the Immigration and Refugee Board was dismissed on June 13, 2017. [ 6 ] Mr. Reales then applied for a pre-removal risk assessment [PRRA]. He alleged that he was targeted by criminal gangs in Colombia because of his human rights activism. His application was denied on September 28, 2018. The PRRA officer found that Mr.

Reales did not face a forward-looking risk, as he chose to remain in Colombia until 2014, despite having permanent resident status in Canada, and that there was adequate state protection in Colombia. [ 7 ] Mr. Reales filed an application for leave and for judicial review of the decision of the PRRA officer. In the context of that application, he brought a motion to this Court for the stay of her removal. II. Analysis [ 8 ] The Act 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 as prescribed by Parliament in

section 48 of the Act. [ 9 ] 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 the applicant 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 is refused. Finally, the third stage of the test requires an assessment of the balance of convenience, in order to identify the party which would suffer greater harm from the granting or refusal of the interlocutory injunction, pending a decision on the merits. ( R v Canadian Broadcasting Corp , 2018 SCC 5 at para 12 , references omitted [ CBC ])

[10] 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 [11] 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. [12] Where a motion for stay of removal is based on the same risk as alleged in the PRRA application, there is no substantive differencebetween the issues that are relevant to the first and second prongs of the RJR test. The standard applied, however, is different.

Under thefirst prong, applicants need only show that their arguments are not frivolous, thus demonstrating a serious question. Under the secondprong, however, they must demonstrate that they are likely to suffer irreparable harm. The test is more demanding. Thus, in a situationsuch as the present one, it is not useful to study whether there is a “serious question to be tried.” The real issue is that of irreparable harm.It is to that question that I now turn. B.

Irreparable Harm [13] The second prong of the RJR test relates to irreparable harm. [14] How does an applicant prove irreparable harm in the context of a motion for a stay of removal? Typically, applicants will say thatreturning to their country will expose them to a risk of death, torture, arbitrary detention or arrest or other forms of violence. One mustnot lose sight, however, that the harm in question will take place in the future. By nature, its occurrence is uncertain. We are, in truth,assessing risk.

This is why applicants are only required to prove a likelihood of harm, not certainty of harm (Ali v Canada (Citizenship and Immigration), 2007 FC 751 at para 33; see also Robert J. Sharpe, Injunctions and Specific Performance, 5th ed (Toronto: ThomsonReuters, 2017) at paras 2.60, 2.390 and 2.418). [15] Thus, irreparable harm can be analyzed from two angles: the level of risk and the standard of proof. There is no fixed threshold orminimum level of risk, in particular when the harm is very serious, such as death.

We would not require that, for instance, death must bemore likely than not or that there be more than a 50% probability of death. We would surely not deport someone to a 30% probability ofdeath. But a minimal risk, or the risk of a harm that is inherent in the removal process, would not count. In any event, in the absence of amethod to quantify such risks, it is meaningless to require a specific level of probability. [16] The level of risk must not be confused with the standard of proof of that risk. In principle, the standard is the same as in all civilcases, namely, proof on a balance of probabilities.

In deciding what is sufficient to establish such proof, the nature and seriousness of therisk must weigh in the balance. Motions for stay of removal often deal with allegations of risk to life or physical integrity that are farremoved from the risks at stake in cases such as RJR or CBC. The resources at the disposal of the applicant must also be kept in mind.One should not expect the amount of evidence that one sees, for example, in commercial litigation. Moreover, when the risk results fromunlawful activities, evidence of that risk will rarely be direct and conclusive.

People who engage in unlawful activities will rarely provideevidence of it, even less so in advance. [17] Nevertheless, some evidence is required, and it has been variously described as “real,” “clear,” “convincing” or “non-speculative”(see, for example, Kreszta v Canada (Public Safety and Emergency Preparedness), at para 10; Arokkiyanathan vCanada (Citizenship and Immigration), at para 2; Patel v Canada (Citizenship and Immigration), 2018 FC 882).These adjectives are a useful reminder that a stay of removal is an exceptional remedy that cannot be granted lightly.

They should not,however, be used as a proxy for a requirement of certainty or more than 50% probability. Like the adjectives used to characterizehardship in the context of humanitarian and compassionate decisions, they do not create separate hurdles that an applicant mustovercome (Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 at para 33, [2015] 3 SCR 909).

In this connection, I findthe following explanation by Chief Justice Richards of the Saskatchewan Court of Appeal particularly enlightening: Given this underlying reality, it seems wrong to demand that a plaintiff seeking an injunction must prove to a high degree ofcertainty that he or she will suffer irreparable harm if the injunction is not granted. In many situations, this approach wouldself-evidently frustrate the balancing exercise which a court should be undertaking in deciding if interlocutory relief iswarranted.

For example, assume that failure to grant a plaintiff an injunction involves only a medium probability that theplaintiff will suffer irreparable harm. But, assume as well that, if such harm is incurred, it will be catastrophic. If theanalysis ends at the point of the plaintiff being unable to establish the prospect of irreparable harm to a high level ofcertainty, a full balancing of the risks concerning the relevant non-compensable damages will not be possible.

In otherwords, the true overall risk of irreparable harm will always be a function of both the likelihood of the harm occurring and itssize or significance should it occur. A sound analytical approach should take this into account. (Mosaic Potash Esterhazy Limited Partnership v Potash Corporation of Saskatchewan Inc, 2011 SKCA 120 at para 59) [18] In many cases, the harm alleged is the same kind of harm to which the refugee protection system is addressed. Thus, refugee lawconcepts, such as state protection or reavailment, may be useful in assessing irreparable harm.

Likewise, determinations of risk made byother decision-makers in the refugee protection system are relevant to the inquiry and will often be given much weight if they werebased on the same evidence and if they are not affected by an obvious flaw.

In other words, a motion for stay of removal is usually notthe appropriate forum to reargue harms that have been adequately assessed by previous decision-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). [19] The risk of irreparable harm will often be proven through a combination of country condition evidence (such as the reports

contained in the national documentation packages maintained by the Immigration and Refugee Board) and evidence that proves that the applicant is personally at risk.

Evidence concerning the conditions in a particular country is not useful if it cannot be tied to the situation of the applicant. [ 20 ] In this case, I am prepared to assume the proposition that a serious issue arises from the PRRA officer’s state protection analysis, given the evidence that shows that since the peace accord was signed in 2016, criminal gangs have often filled the void left by guerilla groups and many individuals identified as activists or human rights defenders have been murdered.

I also note that my colleague Justice Russell Zinn recently highlighted the shortcomings of the witness protection program in Colombia ( Losada Conde v Canada (Citizenship and Immigration) , 2018 FC 1165 at paras 23-24 ). [ 21 ] Nevertheless, Mr. Reales still needs to show that he faces a future risk of being sought and harmed by criminal gangs. In this connection, I cannot find fault with the analysis of the PRRA officer, who noted that the fact that Mr.

Reales remained in Colombia for close to two years after the attempted kidnappings shows that he had no subjective fear of harm. [ 22 ] I also reviewed the record closely. While I believe that Mr. Reales was really the victim of attempted kidnappings in 2010 and 2011, the most likely

interpretation of the events is that those attempted kidnappings and the threats that accompanied them were mainly directed to the woman with whom Mr. Reales was then in a relationship. Mr. Reales had helped that women’s family for a number of years with respect to a conflict between that family and a criminal gang concerning the possession of a country estate. Several members of that family have been murdered. Mr. Reales did not report any threats after his relationship with that woman came to an end in late 2012, although he remained in Colombia until May 2014. [ 23 ] Lastly, I also observe that Mr.

Reales has failed to allege the risk he would face if returned to Colombia when he was interviewed in 2014 regarding compliance with his residency requirement and at his first hearing before the Immigration Appeal Division. Likewise, he provided a psychologist’s report that recounted his story, but failed to mention the facts that now form the basis of his claim. That tends to show that, even if the kidnapping attempts really took place, Mr. Reales did not see the situation as presenting an ongoing risk to his life. [ 24 ] In the result, I conclude that Mr.

Reales has not shown that irreparable harm is likely to occur if a stay of removal is not granted. C. Balance of Convenience [ 25 ] Given the absence of irreparable harm, it is unnecessary to discuss the balance of convenience. [ 26 ] In conclusion, the three RJR criteria are not met and I will dismiss Mr. Reales’s motion for a stay of his removal from Canada. ORDER in IMM-5811-18 THIS COURT ORDERS that: 1 . The style of cause is hereby amended to reflect the correct respondents, The Minister of Citizenship and Immigration and The Minister of Public Safety and Emergency Preparedness. 2 .

The motion for a stay of the removal of the applicant is dismissed. "Sébastien Grammond" Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-5811-18 STYLE OF CAUSE: HOOVER REALES DELGADO 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 6, 2018 ORDER AND REASONS: GRAMMOND J. DATED: DECEMBER 6, 2018 APPEARANCES : John Salam For The Applicant Nimanthika Kaneira For The RespondentS SOLICITORS OF RECORD : Grice & Associates Barristers and Solicitors Toronto, Ontario For The Applicant Attorney General of Canada For The RespondentS