JOSHUA OBASEKI Applicant v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, 2021 FC 936

Date: 20210909 Docket: IMM-6005-21 Citation: 2021 FC 936 Ottawa, Ontario, September 9, 2021 PRESENT: Mr. Justice Sébastien Grammond BETWEEN:JOSHUA OBASEKIApplicantandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] Mr. Obaseki seeks a stay of his removal to Nigeria, scheduled for September 11, 2021. I am granting his motion, as I am notconvinced that new evidence of the risk he would face in Nigeria has been properly considered. [2] Mr. Obaseki is a citizen of Nigeria. He came to Canada and claimed refugee status.

He alleged that he is gay or bisexual and that hewould be at risk of persecution upon return to Nigeria. The Refugee Protection Division [RPD] of the Immigration and Refugee Boarddismissed his claim. It found that he was not a credible witness that that his claim had no credible basis. Mr. Obaseki applied to thisCourt for leave and judicial review of the RPD’s decision, but leave was denied. [3] Mr. Obaseki was given a direction to report for his removal on September 11, 2021. On July 30, 2021, he applied for deferral of hisremoval.

He alleged that he suffers from a particular form of diabetes, that treatment in Nigeria would not be accessible nor affordableand that he would be at a heightened risk of contracting COVID-19. He also provided evidence that he had begun a new same-sexrelationship. On August 31, 2021, an officer of the Canada Border Services Agency dismissed the deferral request. The officer found thatMr. Obaseki’s evidence of a same-sex relationship pertained to a risk that had already been assessed by the RPD.

With respect todiabetes, while acknowledging that the Nigerian medical system "“faces some challenges,”" the officer concluded that Mr. Obaseki hadthe ability to tend to his condition. The officer also discussed the risk associated with COVID-19, and was not convinced that Mr.Obaseki would face a greater risk in Nigeria than in Canada. [4] Mr. Obaseki applied for leave and judicial review of the CBSA officer’s negative decision.

He also brought a motion for stay ofremoval. [5] In Gill v Canada (Public Safety and Emergency Preparedness), 2020 FC 1075, I reviewed the legal framework governing requestsfor deferral and motions for stay of removal. I refer the reader to that case and I will not repeat the discussion here.

In a nutshell, theapplicant must show (1) that the underlying application for judicial review shows "“quite a strong case;”" (2) that the applicant’sremoval would cause irreparable harm; and (3) that the balance of convenience favours the applicant. [6] The specific issue arising in the present case pertains to evidence brought before the deferral officer to overcome previous findings tothe effect that the applicant would not face risk upon return to their country.

It is well established that an officer must defer removal if anew risk, not assessed by previous immigration decision-makers, has arisen: Savunthararasa v Canada (Public Safety and EmergencyPreparedness) 2016 FCA 51 at paragraph 7, [2017] 1 FCR 318; Atawnah v Canada (Public Safety and Emergency Preparedness), 2016FCA 144 at paragraph 22, [2017] 1 FCR 153. [7] In Abdulrahman v Canada (Public Safety and Emergency Preparedness), 2018 FC 842 at paragraphs 15–16 [Abdulrahman], mycolleague Justice William F.

Pentney noted that this principle not only applies to new events (for example, a coup in the country ofremoval), but also extends to new evidence of risks that were previously assessed. In that case, the evidence pertained to a newrelationship buttressing the applicant’s assertions regarding his sexual orientation.

See also Nayeb Pashaei v Canada (Public Safety andEmergency Preparedness), 2021 FC 212 at paragraphs 15–16; Mohammadpour v Canada (Citizenship and Immigration), (FC) [Mohammadpour]. [8] I am mindful that the mere fact of bringing new evidence at the deferral stage will not always be sufficient to overcome previousnegative risk findings: Akagunduz v Canada (Citizenship and Immigration), ; Osagie v Canada (Public Safety andEmergency Preparedness), ; Abu Aldabat v Canada (Citizenship and Immigration), 2021 FC 277. [9] In this case, however, it appears that the officer rejected Mr.

Obaseki’s arguments because they did not pertain to a new risk. Theofficer merely stated that "“the risk alleged has been assessed in the refused RPD decision and Federal Court decision.”" In saying this,the officer failed to contemplate the possibility that new evidence might overcome previous findings regarding the absence of risk. Thisis exactly what happened in Abdulrahman.

As the matter will have to be considered by other decision-makers, I will simply say that thisraises a sufficiently serious issue, or "“quite a strong case,”" to warrant a stay of removal. [10] Moreover, as the serious issue pertains to the assessment of risk, I also conclude that Mr. Obaseki has shown that his removal willexpose him to irreparable harm and that the balance of convenience is in his favour: see, for instance, Abdulrahman, at paragraphs 22–27; Mohammadpour. Thus, the three-part test for granting a stay of removal is met. [11] As a result, I do not need to discuss the other issues raised by Mr.

Obaseki.

ORDER in IMM-6005-21 THIS COURT ORDERS that the applicant’s removal to Nigeria be stayed until the final disposition of the application for judicial review. "Sébastien Grammond" Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-6005-21 STYLE OF CAUSE: JOSHUA OBASEKI v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: BY VIDEOCONFERENCE DATE OF HEARING: September 9, 2021 ORDER AND REASONS: GRAMMOND J.

DATED: September 9, 2021 APPEARANCES : Kingsley Jesuorobo For The Applicant Jocelyn Espejo-Clarke For The Respondent SOLICITORS OF RECORD : Kingsley Jesuorobo Barrister and Solicitor North York, Ontario For The Applicant Attorney General of Canada Ottawa, Ontario For The Respondent