2022 FC, 2022 FC 1037

Date: 20220713 Docket: IMM-6091-22 Citation: 2022 FC 1037 Toronto, Ontario, July 13, 2022 PRESENT: Madam Justice Go BETWEEN: MARYAM BISOLA SHITTU Applicant and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent ORDER AND REASONS [ 1 ] Ms.

Maryam Bisola Shittu [Applicant] seeks a stay of her removal to Nigeria, scheduled for July 14, 2022, until the final determination of her application for leave and for judicial review of a decision dated July 5, 2022 by an Inland Enforcement Officer [Officer] denying the Applicant’s request to defer the execution of the removal order [Decision]. [ 2 ] Having considered the material filed by the parties, and having heard the submissions of counsel for the parties, I am granting the application for a stay. I.

Context [ 3 ] The Applicant first came to Canada with her mother and two siblings, and collectively they filed a refugee claim on April 4, 2018, alleging that they face persecution in Nigeria because the Applicant’s mother refused to accept the family tradition of performing Female Genital Mutilation on her daughters. Their claim was denied by the Refugee Protection Division [RPD], and the subsequent appeal to the Refugee Appeal Division [RAD] was dismissed.

While the RAD accepted the facts of their refugee claim as alleged, the RAD concluded there was a viable Internal Flight Alternative [IFA] in Port Harcourt where the Applicant and her family could shelter from the agents of persecution and safely relocate without facing unreasonable hardship. Their request to this Court for leave to judicial review was also unsuccessful. [ 4 ] The Applicant’s mother and the Applicant’s two younger siblings obtained their permanent residency through the healthcare pathway during the COVID 19 pandemic, in December 2021.

The Applicant was excluded from the pathway application as she was over 21 years old by then. [ 5 ] The Applicant, now 25, married a Canadian citizen on May 20, 2022. Currently, the Applicant is a full-time student and is expected to complete her grade 12 at an adult high school in November 2022. The Applicant is working as a receptionist and has volunteered with several community-based organizations. [ 6 ] On or around June 15, 2022, the Applicant filed a request for deferral of her removal based on several factors including:

a) There are new risk factors facing the Applicant should she return to Nigeria as a single woman, and her mother and husband would not be able to protect her in Nigeria where she does not have a job, nor has she been in touch with her extended family or friends;

b) The objective country conditions documents in National Documentation Package [NDP] provide corroboration regarding serious hardship a single woman would face in accessing accommodation, employment and social services in Nigeria. The Applicant would face discrimination and vulnerabilities amounting to persecution due to her status as a single woman;

c) The Applicant will be eligible for a Pre-Removal Risk Assessment [PRRA] as of August 16, 2022;

d) The Applicant’s pending Humanitarian and Compassionate [H&C] application;

e) The Applicant’s separation from her family in Canada, most notably her husband; and

f) The Applicant’s short-term interests in completing her high school. [ 7 ] The Officer noted in the Decision (which was issued after the Applicant filed her application for leave for judicial review of a deemed refusal) that the Canada Border Services Agency [CBSA] “has an obligation under s.48 of the Immigration and Refugee Protection Act to carry out removal orders as soon as reasonably practicable”, and that the Officer did not feel that a deferral was “appropriate in the circumstances”. II. Issues and Legal Test for Obtaining a Stay [ 8 ] The only issue is whether a stay of removal should be granted in these circumstances.

[9] In order to obtain a stay, the Applicant must meet the tripartite test articulated by the Supreme Court of Canada in Manitoba (AttorneyGeneral) v Metropolitan Stores (MTS) Ltd, (SCC), [1987] 1 SCR 110, 38 DLR (4th) 321 [Manitoba], RJR-MacDonald vCanada (Attorney General), (SCC), [1994] 1 SCR 311, 111 DLR (4th) 385 [RJR-MacDonald], and R v CanadianBroadcasting Corp, 2018 SCC 5, which is the test to be applied to stays of removal: Toth v Canada (Minister of Employment andImmigration) (1988), (FCA), 86 NR 302, 11 ACWS (3d) 440 (FCA). [10] A stay of removal is warranted only if all three elements of the test are satisfied, namely: (

i) the underlying application for judicialreview raises a serious issue; (ii) the moving party will suffer irreparable harm if the stay is not granted and the removal order isexecuted; and (iii) the balance of convenience favours the granting of the order. [11] The application of this test is highly contextual and fact-dependent.

As the Supreme Court of Canada explained, “[u]ltimately, thequestion is whether granting the injunction would be just and equitable in all the circumstances of the case” (Google Inc v EquustekSolutions Inc, 2017 SCC 34 at para 1). [12] While in many cases, the threshold for the serious issue branch of the test is not high, in cases where the stay is requested followinga refusal to defer removal, a higher threshold applies.

The Applicant needs to demonstrate a “likelihood of success” or “quite a strongcase” in regard to the underlying application for leave and judicial review: Wang v Canada (Minister of Citizenship and Immigration),2001 FCT 148, [2001] 3 FC 682 [Wang]; Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81,[2010] 2 FCR 311 at para 67; and Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at para 43. III. Analysis A. Serious Issue [13] The Applicant received the Decision after she filed the underlying application.

At the hearing, the Applicant submitted that theOfficer committed several reviewable errors. With respect to the risk assessment, the Applicant said the Officer erred by finding that therisks facing her have remained the same and have already been considered, when in fact the risks have materially changed because theApplicant is now facing removal by herself, not with her family. The RAD and RPD assessed the risks for the entire family anddetermined that the IFA was available for the entire family.

Yet the Applicant submitted reliable country condition documents showingthat she would face persecution as a single woman. The Decision did not address the new risk. [14] I agree. [15] In denying the Applicant’s deferral request, the Officer stated in the Decision: I must note that Ms.

Shittu’s immigration history establishes that she has had the opportunity to have her risk allegationsassessed before competent decision makers on several occasions and that she has had a full and due process with respect toher risk allegations in Nigeria. [16] Later on in the Decision, after noting that removal officers “do not have the delegated authority to conduct risk assessments” but thatthe Officer has “carefully reviewed the deferral request”, the Officer concluded: From the information presented in the deferral request, I do not find that there has been sufficient new personalized riskalleged that post-dates the refused claim for refugee protection or RAD.

I note that the risk alleged is the same risk that wasassessed in the refused claim for refugee protection and RAD. [emphasis added] [17] In so concluding, the Officer ignored the Applicant’s extensive evidence and submissions regarding the new risks that she wouldface as a single woman upon her return to Nigeria.

I find the Officer’s error to be a serious issue that meets the elevated test in Wang. [18] I reject the Respondent’s contention that the Applicant’s alleged risk of returning as a single woman is “logically subsumed by thefinding that Port Harcourt is a valid IFA, as this location was found to be a valid alternative for all of the claimants, including theApplicant.” The assessment of IFA is fact–driven, and whether the IFA is reasonable depends on all of the circumstances including thoseparticular to the claimant (Thirunavukkarasu v Canada (Minister of Employment and Immigration), (FCA), [1994] 1FC 589).

Just because Port Harcourt was found by the RAD to be a valid IFA for all the claimants if they were to return to Nigeria as afamily, does not mean it would be so for the Applicant if she were to be removed there without her family by her side. [19] The Respondent further submitted at the hearing that the Applicant has not factually established that she would be at risk as a singlewoman in Nigeria and that the evidence does not establish she has no contact with her father, who still resides in Nigeria. [20] I note however that the Officer did not cite the above reasons as the basis for refusing the deferral.

I also do not find the Officer’sbrief reference to the lack of “sufficient new personalized risk” that post-dates the refused refugee claim means the Officer hasconsidered the Applicant’s alleged new risk as a single woman, given the Officer noted, in the very same sentence, “that the risk allegedis the same risk that was assessed” previously. [21] In addition, I note that the Applicant did submit extensive objective country conditions documents regarding discrimination faced bya single woman in Nigeria.

It is not for me to determine if the evidence of discrimination would support a finding of persecution, but theOfficer’s failure to mention, let alone consider, the country condition evidence before concluding that there is not sufficient newpersonalized risk is a serious issue to be tried. [22] Considering the circumstances where deferral has been found to be appropriate in light of new risk allegations (Shpati v Canada(Public Safety and Emergency Preparedness), 2011 FCA 286 at para 43), I find that the Applicant has shown a likelihood of success inarguing that the Decision is unreasonable.

B. Irreparable Harm [23] Irreparable harm refers to harm which cannot be compensated in money; it is the nature rather than the magnitude of the harm whichis to be examined: RJR MacDonald, at p. 135. In the context of a stay of removal, the harm usually relates to the risk to the individual(s)of harm upon removal from Canada.

It may also include specific harms that are demonstrated in regard to any persons directly affectedby the removal, and who will be remaining in Canada: Tesoro v Canada (Minister of Citizenship and Immigration), 2005 FCA 148. [24] The law requires that irreparable harm be established based on evidence, not assertions or speculation: Atwal v Canada (Citizenshipand Immigration), 2004 FCA 427 at paras 14-15.

However, the test for irreparable harm is also not one of absolute certainty: Suresh vCanada (Minister of Citizenship and Immigration), (FCA), [1999] 4 FC 206 (C.A.) at para 12. [25] Irreparable harm may arise from a risk to life, liberty, or safety that the individual would be exposed to if removed to their country oforigin: LYB v Canada (Minister of Citizenship and Immigration), 2009 FC 462, at para 54, citing Sivakumar v Canada (Minister ofEmployment and Immigration), (FCA), [1996] 2 FC 872, 63 ACWS (3d) 912 (CA); Hernandez v Canada (SolicitorGeneral) (1993), 42 ACWS (3d) 892, [1993] FCJ No 950 (QL); Membreno Garcia v Canada (Minister of Employment andImmigration), (FC), [1992] 3 FC 306, 55 FTR 104 (TD) ; Suresh v Canada (1998), (ON SC), 49CRR (2d) 131, 77 ACWS (3d) 163. [26] There is considerable overlap between the evidence and arguments with respect to serious issues and those relating to irreparableharm.

Having found that the Applicant has established a serious issue to be tried in view of the Officer’s flawed treatment of the newrisks she would face in Nigeria, I find that the Applicant has also established that she would face irreparable harm in Nigeria that is notcompensable in damages in view of the evidence before the Officer. C.

Balance of Convenience [27] In the third branch of the test, the Court has to consider where the balance of convenience lies, taking into consideration the publicinterest to be weighed together with the interests of private litigants: Manitoba, paras 34, 38. [28] While there is a public interest in the prompt removal of persons whose refugee claims have been denied, Canada also has aninterest in ensuring its fulfilment of domestic human rights and constitutional laws, as well as its compliance with international humanrights treaties including but not limited to the Convention Relating to the Status of Refugees. [29] The Federal Court of Appeal has found that a request to defer removal and the right to seek a stay of removal in the Federal Courtare among the ways in which a claimant’s interests under

section 7 of the Canadian Charter of Rights are protected: Kreishan v Canada(Citizenship and Immigration), 2019 FCA 223 at para 122. [30] In cases such as this, this broader public interest is carried out by ensuring the risks alleged are properly assessed.

This was not donehere. [31] The Respondent submits that because the Applicant has “a long immigration history in Canada” and “has had the benefit of having arefugee claim adjudicated by the RPD, an appeal to the RAD, a leave application in this Court, a pending H&C application, and anegative deferral decision”, the balance of convenience thus favours the Minister.

With respect, four years in Canada is not “long.”Further, the negative deferral decision is now being challenged by the Applicant, and the H&C application, by virtue of its beingpending, remains undecided. [32] In view of my above findings, granting the stay would be just and equitable in all the circumstances of the case. The balance ofconvenience thus lies with the Applicant. ORDER in IMM-6091-22 THIS COURT ORDERS that the application for a stay of removal pending the determination of the Applicant’s application forjudicial review is granted.

"Avvy Yao-Yao Go" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-6091-22 STYLE OF CAUSE: MARYAM BISOLA SHITTU v THE MINISTER OF PUBLIC SAFETY ANDEMERGENCY PREPAREDNESS

PLACE OF HEARING: HELD VIA VIDEOCONFERENCE DATE OF HEARING: July 12, 2022 ORDER AND reasons: GO J. DATED: July 13, 2022 APPEARANCES : Vakkas Bilsin For The Applicant Nicholas Dodokin For The Respondent SOLICITORS OF RECORD : Vakkas Bilsin Lewis & Associates Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent