2022 FC, 2022 FC 1009

Date: 20220708 Docket: IMM-6230-22 Citation: 2022 FC 1009 Ottawa, Ontario, July 8, 2022 PRESENT: The Honourable Mr. Justice Roy BETWEEN:AKACHI DANNY OKAFOR THERESA NKEM, OKAFOR DAVID CHIEMEKA, OKAFOR DAISY NGOZI, OKAFOR DAPHNE CHIZOBA, OKAFORApplicantsandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] The Applicants constitute a family of five Nigerian nationals who arrived in Canada on May 27, 2018, crossing the border with theUnited States between ports of entry. They made a refugee claim.

Since then, a new child, born in Canada, joined the family. [2] Their refugee claim was denied, largely on credibility grounds, by the Refugee Protection Division and confirmed on appeal beforethe Refugee Appeal Division. It found that the Applicants have an Interior flight alternative in Nigeria. Our Court dismissed theirApplication for Leave and Judicial Review on November 12 last. There is currently pending an Application for Permanent Residency onHumanitarian and Compassionate grounds.

It was received on April 19, 2022, according to the Global Case Management System(GCMS), as reported by the Deferral Officer. [3] The Request for the deferral of the removal from Canada, which is to take place today, July 8, was rejected on June 24, 2022. TheApplicants made their motion for a judicial stay very late. It came on July 4, the motion record running for 438 pages, with the motionheard on July 6. The Applicants had been advised of the removal date more than a month ago (May 31 or June 1, 2022).

It appears thatthe difficulty in securing legal advice could account for the delay. [4] As is well known, in order to be successful, the Applicants must meet the three-prong test for interlocutory matters.

They must satisfythe Court that: 1. there is a serious issue to be determined in the underlying judicial review; 2. the Applicants will suffer irreparable harm if the stay is not granted; 3. the balance of convenience lies with the Applicants. (RJR - MacDonald Inc. v Canada (Attorney General), (SCC), [1994] 1 SCR 311; Toth v Canada (Ministerof Employment and Immigration), (1988) (FCA), 86 N.R. 302) The test is conjunctive; the three branches must be satisfied.

At the end of the day, "“the fundamental question is whether the granting ofan injunction is just and equitable in all of the circumstances of the case”" (Google Inc. v Equustek Solutions Inc., [2017] 1 SCR 834,2017 SCC 34 at para 25). The test requires that its application be highly contextual as it is dependant on the facts of each case. [5] In a case such as this one, the Federal Court of Appeal found in Baron v Canada (Public Safety and Emergency Preparedness), 2009FCA 81, [2010] 2 FCR 311 that an applicant "“must be able to put forward quite a strong case”" (at para 67).

In Wang v Canada(Minister of Citizenship and Immigration), [2001] 3 FC 683 [Wang], Justice Pelletier, then of this Court, decided that the first prong isnot satisfied by simply advancing that the serious issue is not frivolous or vexatious, as for example for the granting of an interlocutoryinjunction.

The test is rather for the applicant to establish the likelihood of success on the underlying judicial review (Wang, at paras 10and 11). [6] The Deferral Officer’s decision of June 24, 2022 examined the reasons offered by the Applicants for their request: ● impact on Applicants’ medical and mental health and access to adequate treatments in Nigeria; ● allow attendance to various medical appointments in relation to the mental health issues; ● pending H&C application;

● best interests of the children; ● the situation in Nigeria, including the destination location (the city of Abuja). [ 7 ] The hearing of this stay motion took more than two and one half hours on July 6. Currently, Theresa Nkem Okafor , the mother of the three children who are co-Applicants, and also the mother of the child born in Canada (there are four children affected by the immigration matter) is committed for mental treatment at the Ottawa Hospital.

According to the information made available to the Court, the committal stems from an incident which occurred on June 30 last. [ 8 ] A request for reconsideration of a deferral of the family’s removal from Canada has been only partially successful. By decision letter dated July 5, 2022, an enforcement officer granted a deferral in the case of Mrs. Theresa Nkem Okafor only. The decision reads: I have reviewed the evidence provided along with the deferral request.

I am tasked with assessing whether compelling evidence has been presented to justify the delay of removal for the assessment of allegations and evidence of death, extreme sanction or inhumane treatment that is personal to the applicant. Based on my review of all of the information presented by Ms. Okafor and her counsel, and after careful consideration, I find that Ms. Theresa Okafor’s removal should be postponed until she is deemed well enough by the medical staff to be discharged.

As for Daphne Okafor and the rest of the family, counsel has submitted insufficient compelling evidence to warrant a deferral of their removal from Canada. I have therefore concluded that a deferral of the execution of the removal order for the Okator family, besides Theresa, is not acceptable under the circumstances presented. [ 9 ] As can be seen, the situation of the rest of the family has not changed. The father and his four children (aged 16 to 2 years old) have not seen their removal for Nigeria deferred.

They are to leave Canada later today for Nigeria, leaving their mother in the Ottawa Hospital. [ 10 ] In my view, the conditions for a stay of removal concerning the rest of the family have been met in the circumstances of the case. [ 11 ] Justice Felix Frankfurter of the United States Supreme Court in Whitehouse v Illinois Central R. Co. , 349 US 366 (1955) wrote famously that the difficulty of a question " “admonishes us to observe the wise limitations on our function and to confine ourselves to deciding only what is necessary to the disposition of the immediate case” " .

The case at bar is one where there is a difficult question to determine. [ 12 ] The evidence is that this is a family in crisis. Not only is the mother currently committed for mental treatment, but one of the children has suffered from significant psychological distress very recently, requiring we are told police intervention. A report from a medical practitioner speaks of the child who " “seems to feel out of control” " , such anger could " “result in physical attacks towards her family members, threat of harm towards herself, and others, and damage to property” " (medical note of Dr.

Radmila Jovanovich of April 5, 2022). From the evidence on record and uncontradicted, the situation appears to have deteriorated since then. The other children also suffer from various degrees of mental and emotional struggles which have required professional assistance. [ 13 ] The record before the Court is less than ideal, as is often the case on motions seeking stays. If the Applicants’ contention about the mental health of family members, including children, is supported by the evidence, it would be less than clear that the deferral decision is as reasonable as it should be.

That brings into play the best interests of the children in the relatively short term. It is not a matter of dispute that the short-term best interests of children is a matter to be considered in deferral requests ( Munar v Canada (Minister of Citizenship and Immigration) , 2005 FC 1180 , [2006] 2 FCR 664 at paras 36 to 40 , cited with approval in Lewis v Canada (Public Safety and Emergency Preparedness) , 2017 FCA 130 , [2018] 2 FCR 229 at paras 59 and 83 ). [ 14 ] Is added to this sorry picture the objective evidence of the state of healthcare in Nigeria.

It appears unlikely, to say the least, that appropriate care in view of the current situation could be available if the rest of the family is to return at this stage to Nigeria later today. The point of the matter is not whether or not they should be removed from Canada but rather when that can take place. [ 15 ] The test to consider concerning the first prong of the test is whether there is a likelihood of success that, on judicial review, it would be found that the decision of the Removal Officer was not reasonable.

On judicial review, the evidence may be tested and it is possible that the evidence will not pan out, or it will be found to be insufficient. At this stage however, and on this record, I conclude that there is a serious issue to be determined on the underlying judicial review application insofar as the reasonableness of the administrative decision to refuse a stay of removal in the circumstances is concerned.

Speaking of the mental health of the child who appears to be particularly troubled, the decision maker simply states that " “there are no indications or evidence presented that would preclude her from attending school and excelling” " (decision of July 2, at p 4/11). That is not really the issue. In the same decision on that same page, one reads " “While no evidence was provided regarding [the child’s] experience with her former teacher, or the situation in which the police were contacted, I sympathise with her situation” " .

The decision goes on to something else, never engaging with the evidence which would appear to be troublesome. This is of course consonant with the decision of July 5 where the same decision maker concludes of " “insufficient compelling evidence (concerning that child) to warrant a deferral” " . It is less than clear how that decision is arrived at.

Does the decision bear " “the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” " ( Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 at para 99 )? There may well be a lack of engagement with the evidence on the short-term impact of the timing of the removal in view of the particular circumstances of this case. The challenge to the decision of July 2, 2022 to deny a deferral has a likelihood of success.

But, again, that assumes that the evidence will be present. [ 16 ] I am also satisfied that irreparable harm will ensue if the stay is not granted. As is often the case, there is here significant overlaps between the arguments, based on the same evidence, between the serious issue and the irreparable harm elements of the tri-partite test. Here, that overlap is largely based on the evidence that the children are in need of being psychologically stabilised, as was put by counsel for the Applicants, because of their great fragility.

On the evidence before the Court, we are well beyond the inherent consequences of deportation, especially with respect to the child we are told attempted to harm herself. In fact, irreparable harm is a function of the psychological distress and the scarcity of adequate resources when the family arrives in their country of nationality. Given the objective evidence of both, the severity of the psychological distress and the health conditions in Nigeria, I consider the irreparable harm branch of the tri-partite test to be satisfied.

[ 17 ] There have been in the past cases where the psychological circumstances of children warranted the intervention of this Court to stay a removal in short order (recently Cvetkovic v Canada (Public Safety and Emergency Preparedness) , 2018 FC 1303 ). I would share the view expressed by Justice Sébastien Grammond in Iheonye v Canada (Public Safety and Emergency Preparedness) , 2018 FC 375 , where he said at paragraph 20: " “Moreover, the course of one’s childhood cannot be changed retroactively. Children are particularly sensitive to the way their lives unfold”.

" [ 18 ] The balance of convenience pits the situation of the family, with the mother committed for mental treatments in Ottawa and one child suffering from severe mental distress to be deported to Nigeria together with siblings and the father, against the legal obligation on the Respondent to enforce a removal order " “as soon as possible” " (

section 48 of the Immigration and Refugee Protection Act , SC 2001, c 27 ). There is an important public interest because the removal of aliens without status in this country helps ensure the integrity of the immigration system and enhances the confidence of the public in that system. But in view of the extraordinary circumstances of this case, I have no doubt that the balance of convenience favours the Applicants. It must be stressed once again that the deferral is temporary and that the removal order stands.

It is the refusal of an administrative stay that calls for a review. [ 19 ] Accordingly, with the tri-partite test satisfied in these extraordinary circumstances, the removal order to be executed on July 8, 2022 is stayed until the application for leave and judicial review of the refusal of the deferral request of July 2, 2022 has been determined. ORDER in IMM-6230-22 THIS COURT ORDERS: 1 . The motion for a stay of removal is granted. The removal order to be executed on July 8, 2022 is stayed until the application for leave and judicial review of the deferral request’s refusal of July 2, 2022 has been determined.

"Yvan Roy" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-6230-22 STYLE OF CAUSE: AKACHI DANNY OKAFOR ET AL v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: HELD BY TELECONFERENCE DATE OF HEARING: JULY 6, 2022 ORDER AND REASONS: ROY J. DATED: JULY 8, 2022 APPEARANCES : Oluwakemi Oduwole For The ApplicantS Brendan Stock For The respondent SOLICITORS OF RECORD : Topmarké Attorneys LLP Toronto, Ontario For The Applicant

Attorney General of Canada Toronto, Ontario For The respondent