FRANCIS CHRISTOPHER IGHENE Applicant v. THE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP CANADA, 2023 FC 702

Date: 20230519 Docket: IMM-6040-23 Citation: 2023 FC 702 Ottawa, Ontario, May 19, 2023 PRESENT: The Honourable Mr. Justice Roy BETWEEN: FRANCIS CHRISTOPHER IGHENE Applicant and THE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP CANADA Respondent ORDER AND REASONS [ 1 ] The applicant, Francis Ighene, comes to this Court with a motion to obtain a judicial stay from the order for his removal to his country of citizenship, Nigeria. The removal is set to occur on May 23, 2023. The original date for the removal was in January but the applicant failed to report for his removal and did not contact CBSA thereafter.

He is currently detained following his arrest on March 23. [ 2 ] I indicated at the end of this morning’s hearing that the motion is dismissed with reasons to follow. Here are these reasons. [ 3 ] Mr. Ighene, who is 48 years old, left Nigeria for the United States on December 29, 2017. He crossed the border into Canada illegally on March 1, 2018, and made a claim for protection. [ 4 ] The Refugee Protection Division [RPD] found his claim to be clearly fraudulent following a close examination of the evidence offered. It is not an exaggeration to say that it found that it consisted of a tissue of lies.

As a result, the RPD made the declaration that the claim was manifestly unfounded, pursuant to s 107.1 of the Immigration and Refugee Protection Act , SC 2001, c 27 [ IRPA ]. It follows that an appeal to the Refugee Appeal Division [RAD] was unavailable (para 108(2)(

c) of the IRPA ). It was confirmed this morning that no attempt was made at challenging the RPD decision. [ 5 ] Following the applicant’s arrest, he saw fit to submit a pre-removal risk assessment [PRRA] on April 6, 2023. On May 10, 2023, the decision on the PRRA application was released. [ 6 ] The application which had been submitted for the PRRA had been based on a completely different story than the refugee claim. While that claim sought to recount that the applicant had been targeted for harm due to his promotion at work in a financial institution in Lagos, the PRRA application switched gear.

This time around, " “the applicant fears persecution and risk to life in Nigeria from members of his mother’s family who want to overtake the land that he inherited. The applicant also fears persecution from the state for the same- sex act he engaged in the past” " (PRRA Decision, p. 3 of 6).

Actually, the same-sex act referenced by the applicant would have taken place during his university years, a long time ago seemingly. [ 7 ] The applicant’s narrative is to the effect that the revelation of the same-sex activity many years before resulted in his mother’s family members disowning him; he was advised by his brother in 2020 that those members were attempting to take over land presumably owned by the applicant’s mother. He advised his brother against getting involved. [ 8 ] In December 2022, the applicant learned from his father that his brother had been murdered.

He now states that he does not want to return to Nigeria for fear that the members of his mother’s family will think that he comes back to fight for the land. [ 9 ] The PRRA officer noted that the applicant did not in his narrative have any intention to contest the claim to his mother’s land. In fact, he has done the opposite and no evidence has been presented to support the new contention.

The PRRA officer states: " “Given the lack of any evidence that the applicant holds any intention of reclaiming or contesting the rights to his mother’s land, I find that there is insufficient evidence to demonstrate that, on a balance of probabilities, he faces a risk from his mother’s family members” " (PRRA Decision, p. 5 of 6). [ 10 ] As for the past sexual activities, it is again the lack of evidence that results in the allegation not being accepted by the decision maker.

I reproduce the paragraph from the Decision which is the complete answer of the PRRA officer to the allegation: I note that the applicant never indicated when he went to university. However, I find it reasonable to conclude that it would have been [ sic ] significant number of years between when his same-sex activity was first exposed in university to when the applicant left Nigeria in 2018. There is little evidence or information submitted by the applicant to demonstrate that he faced persecution, cruel treatment or a danger to his life from the state or any individuals or groups during this time.

There is no evidence that anyone, including the state, is presently motivated to seek or harm the applicant, either directly or indirectly, due to his past activity that occurred many years ago. There is also no evidence that the applicant’s mother’s family, who had already disowned him, are using his past sexual activity to target him beyond just taking over his mother’s land. Furthermore, the applicant stated in his narrative that he stopped engaging in same-sex activities when he was first caught and his submission does not demonstrate that he currently identifies as a sexual minority.

The applicant has not demonstrated how current country conditions for sexual minorities in Nigeria would be applicable to him in his personal circumstances. Therefore, I find that the applicant submitted insufficient evidence to demonstrate that he faces a risk for his past same-sex activities if he were to return to Nigeria.

(PRRA Decision, p. 5 of 6) [11] In order to be granted a judicial stay, an applicant must satisfy the Court of the three prongs of the applicable tri-partite test (Toth vCanada (Minister of Employment and Immigration) (1988), (FCA), 86 NR 302; RJR-MacDonald Inc v Canada(Attorney General), (SCC), [1994] 1 SCR 311): 1. Is there a serious issue to be tried in the underlying application for leave and judicial review? In this case, the applicant did notseek an administrative deferral of the execution of the removal order; he challenges the PRRA decision directly. 2.

Will the applicant suffer irreparable harm if the stay is not granted? 3. The balance of convenience must lie in the applicant’s favour. [12] Put at its highest, the applicant argues that the PRRA Decision is nothing other than credibility findings made in the guise of theevidence being insufficient. The applicant argues that this should have resulted in an oral hearing. Furthermore, he states that thedecision maker did not consider all the evidence which was presented.

Finally, it is said that the identity of the decision maker wasconcealed, which results in the decision being void ab initio; no authority is submitted in support of this odd proposition. The argumenton the "“irreparable harm”" prong of the test is nothing other than a statement that the applicant will suffer physical, emotional andpsychological trauma and hardship if he returns to Nigeria.

Another short statement asserts that the balance of convenience favours theapplicant since the respondent suffers no prejudice. [13] The respondent argued that the Court should not consider this matter because the applicant comes to Court without clean hands. Hecame to Canada illegally, he failed to leave the country when he had to, he had to be arrested and has been detained since March 23. Hisfailure to comply with Canada’s immigration laws disqualifies him. [14] I have chosen to consider the matter on its merits.

In my view, this applicant has not satisfied any of the three prongs of the tri-partite test. [15] The "“serious issue”" prong of the test requires that the applicant satisfy the Court that there is a likelihood of success on his judicialreview application. That implies that, applying the standard of reasonableness, an applicant in order to succeed "“must be able to putforward quite a strong case”" (Baron v Canada (Public Safety and Emergency Preparedness), 2009 FCA 81; [2010] 2 FCR 311, para67). I am far from convinced that such a case has been presented here.

I fail to see how the decision maker can be faulted for concludingthat the evidence was insufficient. The PRRA officer is entitled to weigh the evidence in trying to decide if there is a serious possibilityof persecution. Indeed, that is the very purpose of the assessment.

The PRRA decision is not one where credibility findings are hidden.The applicant failed to convince the Court that he has a serious issue to argue on an underlying judicial review, including that significantevidence was ignored by the decision maker. [16] Before the Court this morning, counsel attempted to change gear again by arguing that the existence of homosexual activities yearsago suffices to make the return to Nigeria a "“serious issue”": the applicant should not be removed.

Not only is the general propositionone that cannot be accepted, but it was not before the PRRA officer as the risk assessment was based on a different proposition. It cannotbe validly argued that there exists a serious issue to be determined on judicial review when that very issue was never submitted to thedecision maker. Decision makers cannot be faulted for something that was never put before them.

That cannot constitute a serious issuewithin the meaning of that prong. [17] The respondent refers to two decisions of this Court faced with the argument that the use of initials to identify a decision makerwould render the decision void: Varela v Canada (Citizenship and Immigration), 2017 FC 1157; Lim v Canada (Citizenship andImmigration), 2019 FC 871. Without authorities to the contrary or a finely articulated argument on behalf of the applicant, theseauthorities dispose of that contention. [18] The conclusion on the serious issue suffices to dispose of the motion.

Nevertheless, I have found that the "“irreparable harm”" pronghas not been met either. [19] The irreparable harm test in the context of stay of removals application has been said to be "“very strict”" (Lima v Canada (PublicSafety and Emergency Preparedness), IMM-3741-19, June 27, 2019, paras 6 and 5). Some twenty years ago, the Federal Court of Appealfound that "“[i]rreparable harm must constitute more than a series of possibilities.

The onus is on the appellant to demonstrate in theevidence that the extraordinary remedy of a stay of removal is warranted”" (Atwal v Canada (Minister of Citizenship and Immigration),2004 FCA 427 at para 14). Assertion and speculation will not do.

The Court of Appeal summarized the legal requirements in Canada(Attorney General) v Oshkosh Defence Canada Inc, 2018 FCA 102: [25] Finally, to prove irreparable harm, the moving party must demonstrate in a detailed and concrete way that it will sufferreal, definite, unavoidable harm—not hypothetical and speculative harm—that cannot be repaired later: Stoney First Nationv. Shotclose, 2011 FCA 232, 422 N.R. 191 at paras. 47-49; Laperrière v. D. & A. MacLeod Company Ltd., 2010 FCA 84,402 N.R. 341 at paras. 14-22; Gateway City Church v.

Canada (National Revenue), 2013 FCA 126, 445 N.R. 360 at paras.14-16; Glooscap Heritage Society v. Canada(National Revenue), 2012 FCA 255, 440 N.R. 232 at para. 31; Canada(Attorney General) v. Canada (Information Commissioner), 2001 FCA 25, 268 N.R. 328 at para. 12; Janssen Inc. v. AbbvieCorporation, 2014 FCA 176 at paras. 44-46. Those who offer assertions rather than evidentiary demonstrations and“[a]ssumptions, speculations, hypotheticals and arguable assertions, unsupported by evidence” often fall short on this branchof the stay test: Glooscap at para. 31; Stoney First Nation at para. 48.

Those who offer “evidence at a convincing level ofparticularity that demonstrates a real probability that unavoidable irreparable harm will result unless a stay is granted” oftensucceed: Glooscap at para. 31; see also Dywidag Systems International, Canada, Ltd. v. Garford Pty Ltd., 2010 FCA 232,406 N.R. 304 at para. 14 and Laperrière at para. 17. [My emphasis]

There is no evidence of irreparable harm on this record, let alone evidence with the required attributes and quality. The assertion by the applicant fell way short of the mark. [ 20 ] The same may be said of the balance of convenience. There is a strong public interest in persons without status in Canada being invited to leave the country. That public interest found its voice in s 48 of the IRPA which calls for the foreign national subjected to a removal order to “leave Canada immediately and the order must be enforced as soon as possible”.

Unfortunately, the applicant gives short shrift to that public interest consideration in claiming that the only prejudice is that of the applicant. Such is not the case. [ 21 ] As a result, the motion for a stay of the execution of the removal order set to occur on May 23, 2023, is dismissed. ORDER in IMM-6040-23 THIS COURT ORDERS: the motion is dismissed.

"Yvan Roy" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-6040-23 STYLE OF CAUSE: FRANCIS CHRISTOPHER IGHENE v THE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP CANADA PLACE OF HEARING: HELD BY VIDEOCONFERENCE DATE OF HEARING: May 19, 2023 ORDER AND REASONS: ROY J. DATED: may 19, 2023 APPEARANCES : Richard A. Odeleye For The Applicant Alison Engel-Yan For The Respondent SOLICITORS OF RECORD : Richard A. Odeleye Barrister and Solicitor Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent