TOUFIK BOUTELDJA Applicant v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, 2023 FC 697

Date: 20230519 Docket: IMM-6053-23 Citation: 2023 FC 697 Ottawa, Ontario, May 19, 2023 PRESENT: The Honourable Mr. Justice Roy BETWEEN: TOUFIK BOUTELDJA Applicant and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent ORDER AND REASONS [ 1 ] The applicant, Mr. Toufik Bouteldja, brings a motion for the purpose of seeking a judicial stay from the execution of a removal order set for May 23, 2023. Mr. Bouteldja, who is now 48 years of age, is an Algerian citizen who has been in Canada since 2017. He is not married and does not have children.

He is to return to his country of citizenship, Algeria. [ 2 ] The underlying judicial review application is concerning the refusal of an agent of the Canada Border Services Agency [CBSA], the enforcement officer, to grant the applicant a deferral of removal. The decision came on May 11, 2023. The judicial stay is sought pursuant to s 18.2 of the Federal Courts Act , RSC 1985, c F-7 . [ 3 ] It will be beneficial to provide some context in what has been a somewhat protracted and tangled immigration history. The applicant was a police officer in Algeria from 1999 to 2015.

He says that he worked in the police force from 2007 to 2015 as a corruption control officer.

The applicant’s immigration history in Canada, which emerges from the record before the Court, is summarized as follows: October 2013: visa for Canada refused; May 2014: visa for Canada refused; April 2015: visa approved and left Algeria for Canada; returned to Algeria in March 2016; May 13, 2017: enters Canada as a visitor; January 9, 2018: claims refugee protection; in his request for deferral, the applicant states that it " “was based on his fear of persecution by government and non-state actors resulting from investigation and activism he was involved with while working as a police officer in Algeria” " ; September 13, 2019: Refugee Protection Division [RPD] concludes that the applicant is excluded from being a Convention refugee or person in need of protection because there are reasons to believe he has committed a crime against humanity while being a police officer in Algeria; April 9, 2021: Refugee Appeal Division [RAD] grants the appeal and sends the matter back to the RPD for redetermination; March 4, 2022: RPD denies the refugee claim because of credibility concerns and the applicant’s incompatible behaviour with being at risk; June 15, 2022: RAD dismisses the appeal in a very well articulated decision.

The applicant failed to establish that he was threatened by a powerful individual engaging in passport fraud; the applicant’s testimony was vague, evasive and non-responsive to questions; the applicant claimed that he participated in a demonstration in October 2014 to denounce corruption; however, documentary evidence is to the effect that the demonstration involved 3,500 policemen denouncing their working conditions.

The explanation offered by counsel that the applicant may have joined the demonstration for a reason other than the other 3,500 participants was not accepted, especially " “given the Appellant’s own assertion that he was one of the organizers of this demonstration” " (RAD decision, para 14; see in particular paras 19-20); the RAD also found that the applicant’s behaviour contradicted and undermined his overall credibility.

In spite of being fearful in 2015 because, as he claims, he had been accused of treason and placed on a black list for his participation in the October 2014 demonstration, he came to Canada in 2015, returned to Algeria in March 2016 to come back to Canada in May 2017. The RAD wrote at paragraph 25 of its decision: " “When asked precisely whether he has ever been questioned on the black list, he responded that he had not. Yet, the Appellant’s entire contention is that he can never return to Algeria because he would be arrested and detained directly at the airport; he repeated this throughout his testimony” " .

Indeed, no evidence of warrants for the arrest of the applicant was produced and he indicated not knowing if one was issued. Counsel for the applicant confirmed during the hearing of the motion that the RAD decision was not challenged. It stands. [ 4 ] The applicant made an application for permanent residence from within Canada, based on Humanitarian and Compassionate grounds [H&C application] on December 21, 2022. That original application was supplemented on March 10, 2023, April 3, 2023 and May 5, 2023.

He seeks urgent processing of his application in spite of the fact that a period of twelve months has not yet passed since the claim for refugee protection was rejected.

[5] The applicant was arrested by CBSA on March 23. He is still detained. A Direction to Report for Removal to take place on April 11was issued on March 27, 2023. A request for deferral was refused on April 5, 2023. The motion for a judicial stay was not heard as theremoval was postponed. The next removal date was set for April 25; it was also postponed. Finally, a new Direction to Report forRemoval was issued in early May for a departure date of May 23, 2023. The applicant requested a new deferral on May 5, with adecision made on May 11 refusing the deferral.

The next day the applicant filed a skeletal application for leave and for judicial review,followed by a notice of motion to stay the execution of the removal order until the leave application and judicial review have beendisposed of. [6] The judicial stay is governed by the tri-partite test, set out in RJR-MacDonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR 311, and Toth v Canada (Minister of Employment and Immigration) (1988), (FCA), 86 NR 302.As is well known, an applicant must satisfy the three prongs of the test: 1.

Is there a serious issue to be tried in the underlying application for leave and judicial review? In this case, it is the deferral decisionwhich is under attack. 2. Will the applicant suffer irreparable harm if the stay is not granted? 3. The balance of convenience must lie in favour of the applicant. [7] It is not a matter of dispute that the "“serious issue”" prong of the test requires that there be a "“likelihood of success”" (Wang vCanada (Minister of Citizenship and Immigration), 2001 FCT 148; [2001] 3 FC 82).

In examining whether there exists a serious issue,the Court must have in mind that the discretion to defer is limited; it must also consider that the test involves the reasonableness of thedecision: the standard of review is not correctness but rather whether the decision meets the hallmarks of reasonableness (Baron vCanada (Public Safety and Emergency Preparedness), 2009 FCA 81; [2010] 2 FCR 311, para 67 [Baron]).

As put colourfully by theCourt of Appeal, "“for an applicant to succeed on a judicial review challenge of such decision, he or she must be able to put forwardquite a strong case”". [8] As has often been said, the deferral is just that: a deferral. The issue is not if, but rather when. In the case at bar, counsel for theapplicant was arguing that the removal ought to be deferred because of mental health issues suffered by the applicant and the H&Capplication ought to be allowed to follow its course and be dealt with by the Minister of Citizenship and Immigration.

Hence, it wasargued that the enforcement officer should defer the execution of the removal order until the applicant’s mental health has stabilizedand/or until the H&C application has been accepted at the first stage. [9] As already pointed out, the H&C application was not admissible until mid-June. More fundamentally though, the mere existence of anH&C application does not constitute a bar to the execution of a removal order (Palka v Canada (Public Safety and EmergencyPreparedness), 2008 FCA 165 at para 14; Baron, para 50).

However, an H&C application could justify a deferral if a decision isimminent (Baron, para 53). Similarly, "“deferral should be reserved for those applications where failure to defer will expose theapplicant to the risk of death, extreme sanction or inhumane treatment”" (Baron, para 51). [10] The deferral request raised two issues: the "“very real likelihood of suicide”" of the applicant and the strong application forpermanent residence on H&C grounds.

In effect, the applicant contends that he satisfies the tri-partite test for a judicial stay based on thestate of his mental health, which permeates the test’s three prongs. [11] I have reviewed with great care the evidence put before the Court about the mental health of Mr. Bouteldya. The Court can onlyreview the evidence to be convinced that it has the attributes and quality required to satisfy, on a balance of probabilities, that therequirements of the law have been met. [12] I have significant doubts that the "“serious issue”" prong has been met.

The law requires that there be a likelihood of success onjudicial review, that is that the decision of the enforcement officer does not possess what has been described as the "“hallmarks ofreasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legalconstraints that bear on the decision”" (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65; [2019 4 SCR 653 atpara 99). The reviewing court will take a posture of respect towards the administrative decision and its starting point will be the principleof restraint.

In a word, the reviewing court does not seek to reweigh and reassess the evidence, to delve into the merits of the case. Itstask is to determine whether the decision is legal, in the sense that it is reasonable. [13] Here, the existence of an attempt at an H&C application is far from the requirements of the binding case law from the Court ofAppeal.

A decision on the matter is far from being imminent in view of the fact that it has not even been decided if the one-year bar canand will be lifted, let alone the time it will take to consider fully the merits of the application. [14] As for the risk to life, the issue will largely be a function of the evidence presented. I have decided to consider the quality of thatevidence as part of the second prong of the test, whether irreparable harm has been proven. [15] Some twenty years ago, the Federal Court of Appeal found that "“irreparable harm must constitute more than a series ofpossibilities.

The onus is on the appellant to demonstrate in the evidence that the extraordinary remedy of a stay of removal iswarranted”" (Atwal v Canada (Minister of Citizenship and Immigration), 2004 FCA 427 at para 14 [Atwal]). A stay of removalconstitutes an exceptional measure (Tesoro v Canada (Minister of Citizenship and Immigration), 2005 FCA 148, [2005] 4 FCR 210 atpara 47). [16] Assertions and speculations will not do.

In Canada (Attorney General) v Oshkosh Defence Canada Inc, 2018 FCA 102, the Court ofAppeal summarizes the legal requirements in the following fashion: [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. Abbvie Corporation , 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 branch of the stay test: Glooscap at para. 31; Stoney First Nation at para. 48 . Those who offer “evidence at a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result unless a stay is granted” often succeed: 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] [ 17 ] The attributes and the quality of the evidence needed to establish irreparable harm were described by the Court of Appeal in Gateway City Church v Canada (National Revenue) , 2013 FCA 126 : [14] Such a general assertion is insufficient to establish irreparable harm: Holy Alpha and Omega Church of Toronto v. Canada (Attorney General) , 2009 FCA 265 at paragraph 22 . That sort of general assertion can be made in every case.

Accepting it as sufficient evidence of irreparable harm would unduly undercut the power Parliament has given to the Minister to protect the public interest in appropriate circumstances by publishing her notice and revoking a registration even before the determination of the objection and later appeal. [15] General assertions cannot establish irreparable harm.

They essentially prove nothing: It is all too easy for those seeking a stay in a case like this to enumerate problems, call them serious, and then, when describing the harm that might result, to use broad, expressive terms that essentially just assert – not demonstrate to the Court’s satisfaction – that the harm is irreparable. ( Stoney First Nation v. Shotclose , 2011 FCA 232 at paragraph 48 .) Accordingly, “[a]ssumptions, speculations, hypotheticals and arguable assertions, unsupported by evidence, carry no weight”: Glooscap Heritage Society v.

Minister of National Revenue , 2012 FCA 255 at paragraph 31 . [16] Instead, “there must be evidence at a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result unless a stay is granted”: Glooscap , supra at paragraph 31. See also Dywidag Systems International, Canada, Ltd. v. Garford Pty Ltd. , 2010 FCA 232 at paragraph 14 ; Canada (Attorney General) v. Canada (Information Commissioner) , 2001 FCA 25 , 268 N.R. 328 at paragraph 12 ; Laperrière v. D. & A. MacLeod Company Ltd. , 2010 FCA 84 at paragraph 17 .

I agree with my colleague Justice Denis Gascon that " “[i]n the context of stays of removal it [irreparable harm] implies a serious likelihood of jeopardy of an applicant’s (or his or her family’

s) life, security or safety” " . His characterization that the irreparable harm test is " “very strict” " , with which I agree, is in conformity with the Court of Appeal’s decisions ( Lima v Canada (Public Safety and Emergency Preparedness) , IMM-3741-19, June 27, 2019, paras 6 and 5) [ 18 ] The evidence of the alleged irreparable harm in this case does not meet the strict requirements of the law. Indeed, counsel for the applicant used expressive terms throughout her presentation.

However, as the evidence was reviewed with counsel, it became apparent that it missed the mark. [ 19 ] The applicant checked himself into hospital on September 13, 2022, to receive a psychiatric assessment. The only evidence from a medical practitioner specialized in mental health came from the psychiatrist who monitored the applicant while the assessment was conducted. He stated at the time (September 20) that a removal should be deferred while he seeks treatment to stabilize his current mental health.

The psychiatrist expressed the professional opinion " “that a deportation at this time would only destabilize him further, which could make him unsafe to himself if he cannot seek recommended outpatient treatment” " . In order to stabilize him, general mental health and wellness appointments with an appropriate practitioner, necessary medications (which were prescribed) and psychotherapy were recommended. The psychiatrist concluded that the applicant " “will have more time to prepare and adjust to leave, board a plane and travel safely to re-enter Algerian society as healthy as possible” " .

The report did not go any further. [ 20 ] I note that a document which is unsigned and undated found in the applicant’s record speaks of a primary diagnosis of major depressive disorder; it adds that " “Your diagnoses also included: Suicidal Thoughts” " . The two prescribed medications appear on the document. [ 21 ] The applicant’s family doctor expressed on October 16 that " “I personally think that it is unsafe and dangerous for him to go back to his country Algeria” " . Again, this goes no further than a personal opinion expressed in that short note.

An even shorter note, dated March 23, 2023, expresses the concern that the applicant " “will end his life” " if he goes back to his home country. No explanation is offered for the concern. [ 22 ] Finally, a psychotherapist whose training consists of a master’s degree in Educational Counselling met with the applicant regularly following his hospital stay in September 2022. He conducted what he called a " “psychosocial evaluation” " for the applicant’s H&C application. No information was available as to what a " “psychosocial evaluation” " is.

At any rate, the counsellor/psychotherapist reports that the applicant " “mentioned that he would kill himself before he was deported. Because if he returns, he is scared of being jailed, tortured and killed” " (Report of December 5, 2022, at p. 5). The counsellor/psychotherapist recognized mental health symptoms, as the applicant has been diagnosed with PTSD and depression. He " “formed a strong clinical impression that [he] was dealing with an extraordinarily fragile and traumatized person” " (p. 7).

That " “impression” " appears to be translated into the grave concern that if deported, " “he would attempt to kill himself as he has the plan and the timeline of the attempt” " (p. 8). [ 23 ] That view, from the counsellor/psychotherapist, who is not, evidently, a medical practitioner, was reviewed, together with all the

evidence offered by the applicant, by a medical doctor retained by CBSA to consider the medical requirements for removal. In a report dated April 23, 2023, that doctor reviewed the various reports on file.

He stated that " “it is my professional opinion that the provided medical history does not constitute an absolute contraindication to air travel at this time” " . [ 24 ] The medical doctor states that " “air travel in this case may prompt a further realization of this individual’s repatriation to his country of origin” " which " “may exacerbate mood symptoms, trigger an anxiety/panic attacK and/or escalate thoughts of suicidal ideation/intent” " . [ 25 ] That examination of the evidence makes the medical practitioner conclude: … Based on the information provided for review, it is my professional opinion that air travel in this case may prompt a further realization of this individual’s repatriation to his country of origin.

The ensuing stress of this realization may exacerbate mood symptoms, trigger an anxiety/panic attack and/or escalate thoughts of suicidal ideation/intent. Accordingly, it is my professional opinion that a medical/nurse escort should be present for air travel to help address any potential behavioral reactions and/or mood related disturbances, assist with the provision of medications if needed and to help communicate with the airline staff if needed.

Thus, unless any compelling objective medical evidence is provided to the contrary, it is my professional opinion that commercial air travel is considered permissible in this case with the following recommendations provided for consideration. [ 26 ] My review of the medical evidence, that is the report of the psychiatrist who monitored the applicant in September last, the personal opinion of the applicant’s family doctor and the medical practitioner retained by CBSA to assess the applicant for his removal, leads to the conclusion that irreparable harm as defined in law has not been established on a balance of probabilities: to quote from Atwal " “irreparable harm must constitute more than a series of possibilities” " . [ 27 ] I am strengthened in my own assessment by the decision of our former colleague, Justice René LeBlanc, now a member of the Federal Court of Appeal, in a case involving a young person who actually attempted to commit suicide linked to his fear of returning with his family to their country of citizenship, Ukraine ( Ryabinin v Canada (Public Safety and Emergency Preparedness) , 2016 FC 1118 [ Ryabinin ]).

The young person’s fear of returning was identified as the major trigger of the suicide attempt. [ 28 ] In that case, a request to defer based on the mental health condition of one of the children was rejected and our Court found that irreparable harm had not been established. Clear, convincing and non-speculative evidence is required. The Court notes that the mental health problems are linked to the prospect of returning to the country of citizenship.

It also notes that the events that formed the basis of the family’s refugee claim, which were referred to by the mother as contributing to the young person’s nervousness, irritability and fears while still living in Ukraine, were found not to be credible by the RPD. Our Court states that " “leave was denied by this Court” " (para 10). " “These assertions must therefore be taken with caution” " (para 10). In our case, the applicant claimed to his counsellor/psychotherapist that he would hurt himself because he is scared of being jailed, tortured and killed if returned.

His reasons for seeking refugee status were not believed by the RAD in well articulated reasons in support of denying the appeal from the RPD decision. That RAD decision was not even made the subject of an application for the authorization of a judicial review. [ 29 ] As in this case, the Court in Ryabinin referred to the fact that measures are in place to mitigate the risk of self-inflicted harm and to manage the anxiety problems: a nurse was to travel with the family to Ukraine. The Ryabinin Court repeats that clear, convincing and non-speculative evidence is required.

That threshold was not met. [ 30 ] The respondent urges the Court to follow the Ryabinin decision. The applicant would rather that the Tiliouine v Canada (Public Safety and Emergency Preparedness) , 2015 FC 1146 [ Tiliouine ], be the guiding light. That case was also decided by LeBlanc J., close to one year before Ryabinin . It also involved the issue of possible suicide. [ 31 ] The Ryabinin decision was not rendered per incuriam .

LeBlanc J. referred to Tiliouine and said that " “[i]n that case, where a stay of removal was granted, the applicant had been suffering from severe and chronic PTSD and depression and attempted to [sic] her life well before coming to Canada as a result of years of extreme physical and psychological abuse and violence in her home country” " (para 10). In other words, the evidence was clear, convincing and non-speculative about the mental health (para 13).

Indeed, the Tiliouine decision refers specifically to " “two attempts on her life, one of them while her son was present” " (para 3). [ 32 ] The Ryabinin decision is in my estimation much closer to our circumstances than Tiliouine . I find that, as in Ryabinin , the evidence of irreparable harm in this case does not reach the required level of clear, convincing and non-speculative.

The removal of the applicant is to be conducted with the assistance of escorts and a nurse, in accordance with the recommendation of the medical doctor who reviewed and assessed the evidence made available. [ 33 ] Finally, counsel for the applicant argued at the hearing of this case that Mr. Bouteldja would find himself without assistance upon his arrival in Algeria.

That contention must be rejected. [ 34 ] The respondent put in evidence before the Court the communication of a detention officer at CBSA who reported that the Algerian Consulate in Montreal communicated with an Inland Officer offering their services to assist Mr. Bouteldja. His family in Algeria had contacted the Consulate in Montreal. Mr. Bouteldja is said to have received the telephone call from the detention officer: she offered to contact the Consulate herself, but the applicant refused. The detention officer was authorized by the applicant to communicate the information to his counsel, which was done.

That was not denied by counsel. What is more is that the detention officer also offered to contact his family as, evidently, they were concerned. The officer reports that Mr. Bouteldja refused the agent’s offer to communicate with his family in Algeria and hung up. [ 35 ] Clearly in my view, the Algerian Consulate, which was not contacted by CBSA, reached out to assist at the urging of the applicant’s family in Algeria. Obviously, assistance is made available. [ 36 ] This case presents a sad and indeed disruptive situation.

I have not been convinced that the evidence supports the exceptional measure that is a stay of removal, especially when compared to cases like Ryabinin and Tiliouine . The test for irreparable harm is a very

rigid one. It is not met in this case. [ 37 ] As a result, the motion for a stay of the execution of the removal order set for May 23, 2023, must be dismissed. The Court has significant reservations that the " “serious issue” " prong of the tri-partite test has been met. However, the matter is decided and disposed of on the basis that the " “irreparable harm” " prong has not been satisfied. ORDER in IMM-6053-23 THIS COURT ORDERS: the motion is dismissed.

"Yvan Roy" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-6053-23 STYLE OF CAUSE: TOUFIK BOUTELDJA v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: HELD BY VIDEOCONFERENCE DATE OF HEARING: May 17, 2023 ORDER AND REASONS: ROY J. DATED: may 19, 2023 APPEARANCES : Jacqueline J. Bonisteel For The Applicant Nathan Joyal For The Respondent SOLICITORS OF RECORD : Corporate Immigration Law Firm Barristers and Solicitors Kanata, Ontario For The Applicant Attorney General of Canada Ottawa, Ontario For The Respondent