2018 FC, 2018 FC 1275

Date: 201812 18 Docket: IMM-6260-18 Citation: 2018 FC 1275 Toronto, Ontario, December 18 , 2018 PRESENT: The Honourable Mr. Justice Pentney BETWEEN: SHAFIQUA IRSHAD KHAN Applicant and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent AMENDED ORDER AND REASONS [ 1 ] The Applicant seeks a stay of removal, scheduled for today, December 17, 2018. She received a notice from the Canada Border Services Agency (CBSA) on November 16, 2018, and met with a CBSA official on November 20, 2018 to discuss removal arrangements.

The Applicant was advised as of December 5, 2018 that her removal was scheduled for December 17, 2018, at 5:40 pm. [ 2 ] The Applicant waited until December 11, 2018 to seek a deferral of her removal from CBSA, which was refused on December 14, 2018. She then brought this application for a stay of removal. The stay application was filed with the Court on the morning of December 17, 2018. I heard the matter later that day, and issued my decision at the end of the hearing.

These are my reasons for that decision. [ 3 ] The background to this is that the Applicant came to Canada from India in February 2017, and made a claim for refugee status on June 22, 2017. The basis for her refugee claim appears to be her fear of violence from her ex-husband- the details of the refugee claim are not explained in the materials before me. It appears that the Applicant has been married several times in India, but the details are not explained.

There is no other information as to the basis for her asserted fear of personal harm. [ 4 ] The Respondent states that on or about June 24, 2017, a biometrics report from the United States Department of Homeland Security showed an immigration match to the Applicant, but with an alternative name. The Respondent filed a notice of intervention in the Applicant’s refugee claim on February 23, 2018. [ 5 ] The Applicant withdrew her refugee claim on July 31, 2018. [ 6 ] It appears that the Applicant began a new relationship in Canada in December 2017, with a Canadian citizen.

Her divorce from her previous marriage was finalized on November 12, 2018, and then the Applicant married Mr. Shaikh. They submitted a spousal sponsorship application on November 19, 2018. [ 7 ] On November 20, 2018, the Applicant met with a CBSA officer. She was advised that there was a valid removal order against her, and that she was to return to confirm whether she would arrange her own airline ticket. On November 27, 2018, she informed the CBSA officer that she would make her own removal arrangements. The CBSA agent advised her that she had to depart Canada on or before December 18, 2018.

On December 5, 2018 the Applicant provided a ticket, but it was not a direct flight and as such did not comply with the CBSA instructions. She provided proof of a valid ticket on a direct flight to India on December 7, 2018. [ 8 ] On December 11, 2018, the CBSA learned that this valid ticket had been cancelled – although it should be noted that this is disputed by the Applicant. On the same day, the Applicant submitted her request for deferral. On December 13, 2018, CBSA arrested the Applicant because of a fear that she would not appear for her scheduled removal.

The Applicant was released following a detention review this morning. [ 9 ] The Applicant’s counsel communicated with CBSA several times in order to request a deferral of her removal, and then to seek her release from custody. The deferral request was refused on December 14, 2018. The Applicant has launched an application for leave to seek judicial review of the refusal of his deferral request, and also brought this motion for a stay of removal. [ 10 ] Two issues arise in this matter: (

i) should I exercise my discretion not to hear the application, since it is a “last-minute” request; and if so, (ii) should a stay of removal be granted in these circumstances? I. Discretion to refuse to hear a “last-minute” request [ 11 ] This Court has held that it may refuse to hear last-minute stay applications where there is no explanation for the delay in bringing the matter forward. A stay of removal is an extraordinary relief, which should be considered based on the best available evidence, and with time for proper consideration. [ 12 ] The Respondent cites the decision of Mr.

Justice Pinard in Matadeen v Canada (Minister of Citizenship and Immigration) , IMM- 3164-00, June 22, 2000): “last-minute motions for stays force the respondent to respond without adequate preparation, do not facilitate the work of this Court, and are not in the interests of justice; a stay is an extraordinary procedure which deserves thorough and careful consideration.”

[13] Other decisions to the same effect include: Vaccarino v Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 518(Strayer J.); Carling v Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 2086 (Blanchard J.); and Adel v Canada(Minister of Citizenship and Immigration, 2001 FCT 1017 , [2002] 2 F.C. 73 (T.D.), in which Justice Pelletier stated, in relationto last-minute stay applications: [16] It often happens that counsel who represent immigrants are themselves consulted at the last minute by clients who livein hope that the removal date will never arrive.

Moreover, the Federal Court frequently sees cases in which there is verylittle time between the applicant's summons and the date of removal. What this means is that often the choice of the hearingdate for such applications is outside the control of applicants' counsel. But there are other cases in which counsel know inadvance that they will have to make an application for a stay.

In those cases, the Court has a hard time understanding whythe application for a stay is tendered on the day before the date of removal or on the very day itself. [17] This does not do justice to either the respondent or the Court, both of whom must comply with the applicant'sdeadlines. The respondent is often unable to file its evidence in Court. The Court, for its part, must determine complexquestions on the basis of an incomplete record and without the benefit of any period of reflection. The applicant claims astay by appealing to fairness; he should grant to others what he is claiming for himself.

And in this instance, fairnessrequired that the application be presented earlier. It is surprising to me that one can have sufficient information to commencean application for leave and judicial review but be in ignorance about an application for a stay. (emphasis added) [14] In this case, the key period of delay is as of November 20, when the Applicant met with the CBSA agent to discuss removalarrangements – or at the latest November 27, when she discussed travel plans with the CBSA agent and was advised that she wasrequired to depart Canada no later than December 18, 2018.

Yet the request for a deferral of removal was not received until December11, 2018. [15] I should underline here that it appears that once the Applicant retained counsel on or around December 11, 2018, counsel haspursued matters with some urgency. So this is not a case where the Court is left wondering why counsel did not act sooner.

The concernis the Applicant’s delay in taking any steps since November 20, 2018, almost one full month ago. [16] I would note that if the Applicant and her husband had submitted a spousal sponsorship application on November 19, 2018, thisshould have been provided to the CBSA official the following day, or on November 27, 2018. It does not appear that this was done. [17] The Applicant argues that there has been no unreasonable delay. The Applicant was not represented by counsel, and did notunderstand her procedural options. When she retained counsel immediate steps were taken to defer her removal.

She should not beremoved until either the judicial review application or her spousal sponsorship application are dealt with. [18] In the circumstances of this case, I would exercise my discretion not to hear this application. The Applicant delayed taking anysteps to address her removal for several weeks. This has put her newly-retained counsel, the Respondent, and the Court, at a significantdisadvantage in dealing with this request for extraordinary relief.

There is no explanation for the delay in contacting counsel, or takingany other step to try to explain the difficulties her removal would cause. [19] I would observe that neither the materials that supported her refugee claim nor her spousal sponsorship application were placedbefore the officer in her deferral request. No doubt this was because of the time pressures facing counsel. However, the effect of this isthat the officer was asked to make a decision based on the information provided, and this was simply inadequate (as I will explainbelow). [20] There is no explanation for the delay.

The Applicant was aware as of November 27, 2018 that she was to be removed to India on orbefore December 18, 2018. Yet she waited until December 11 to retain counsel, and then this application came on the morning of herscheduled departure. This is simply not an acceptable course of conduct, and as such I would exercise my discretion not to hear thisapplication. [21] I will offer brief comments on the substance of the application, in order to complete the explanation for the Applicant as to myreasons for refusing her request for a stay of removal. II.

Should a stay of removal be granted? [22] In considering whether to grant a stay of removal, this Court applies the same test as for interlocutory injunctions. The SupremeCourt of Canada recently restated the test as follows: At the first stage, the application judge is to undertake a preliminary investigation of the merits to decide whether theapplicant demonstrates a “serious question to be tried”, in the sense that the application is neither frivolous nor vexatious.The applicant must then, at the second stage, convince the court that it will suffer irreparable harm if an injunction isrefused.

Finally, the third stage of the test requires an assessment of the balance of convenience, in order to identify the partywhich would suffer greater harm from the granting or refusal of the interlocutory injunction, pending a decision on themerits. (R v Canadian Broadcasting Corp, 2018 SCC 5 at para 12, references omitted) [23] This three-pronged test is well-known. It had been set out in earlier decisions of the Supreme Court: Manitoba (Attorney General)v Metropolitan Stores Ltd., (SCC), [1987] 1 SCR 110; RJR — MacDonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR 311).

It was also applied in the immigration context in Toth v Canada (Minister of Employment and

Immigration), (FCA). Of course, the application of this test is highly contextual and fact-dependent. A. Serious Issue [24] In many cases, the serious issue branch of the test is not a high threshold.

However, in cases where the stay is requested following arefusal to defer removal, it has been found that a higher threshold applies, which requires the Applicant to demonstrate a “likelihood ofsuccess” or “quite a strong case” in regard to the underlying application for leave and judicial review (Wang v Canada (Minister ofCitizenship and Immigration), 2001 FCT 148, [2001] 3 FC 682; and Baron v Canada (Minister of Public Safety and EmergencyPreparedness), 2009 FCA 81, [2010] 2 FCR 311 at para 67). [25] Here the deferral request was based on several considerations: the Applicant’s fear of return to India due to concerns aboutdomestic violence; the fact that she had submitted a Spousal Sponsorship Application on November 18, 2018; and her claim forhumanitarian and compassionate relief under s. 25(1) of IRPA.

The deferral request does not provide details in regard to any of theseclaims. [26] I am not persuaded that the Applicant has met the high threshold for a “serious issue” in regard to the underlying judicial reviewapplication regarding the refusal to defer removal. [27] The law requires an assessment of individual risk before removal. In most cases the focus is on a new risk which has emerged,sometimes because of a change in the conditions of the country to which the person will be returned.

However, it is clear that if there isevidence of a new or increased risk faced by the applicant, “the officer must assess that risk and determine if a deferral of removal iswarranted” (Toth v Canada (Public Safety and Emergency Preparedness), 2012 FC 1051, para 23, cited with approval by the FederalCourt of Appeal in Atawnah v Canada (Public Safety and Emergency Preparedness), 2016 FCA 144, para. 20. [28] The Court of Appeal has found that “[t]he evidence in support of the risk need not be conclusive. The mere fact that the evidenceinvolves an element of speculation is not determinative” (Atawanah, para 21).

And although in many cases the evidence of risk will be“new” in the sense that it relates to an event which post-dates the refugee determination hearing, that is not always a requirement. Thereare instances where the risk is not “new” in that sense; rather, it is a risk which has not been assessed by a competent decision-maker.

InEtienne v Canada (Public Safety and Emergency Preparedness), 2015 FC 415, the Court held, at para 54, that the risks an enforcementofficer is required to consider include risks that have never been assessed by a competent decision-maker (cited with approval inAtawanah, at para 22). [29] In this case, the risk of harm asserted by the Applicant has not been considered because she withdrew her refugee claim.

However,the difficulty with the challenge to the officer’s decision to refuse to defer removal is that it cannot be unreasonable for an officer to failto give effect to a claimed risk of persecution where the claim is not supported by any evidence or any details – information which waspresumably available from the refugee claim, but was not provided to the officer. The Court is in the same situation – a risk is asserted,but no evidence to explain it is in the record. And it would appear that such evidence would be available – either from the Applicantherself, or from her refugee claim.

None of that was put in evidence before me, nor was it provided to the officer. [30] Similarly, no information about the spousal sponsorship was provided. The Applicant says it was sent in by regular mail, but nocopies have been provided. As of the hearing of this matter, the Respondent was unable to confirm whether such an application had beensubmitted.

Even if it is in the system, the mere filing of the application does not give rise to an automatic bar on removal – and theofficer properly considered the Respondent’s policy guidance on the subject. [31] For these reasons, I find that the Applicant has not met the threshold of establishing quite a strong case in relation to the underlyingjudicial review of the refusal to defer removal. B.

Irreparable Harm [32] There is considerable overlap between the arguments and evidence in support of the serious issue and irreparable harm elements ofthe test in this case. [33] The law requires that irreparable harm be established based on evidence, not mere speculation. As I have explained above, thealleged risk of harm here is not established in evidence. It is merely asserted, without more. And given the timing of the application, andthe delay in retaining counsel, I wish to underline that this is not a comment on the efforts of counsel for the Applicant.

He was put in adifficult position by the Applicant’s delay. The fact is, however, that the risk of harm is not established in the evidence before me. [34] I find, on the evidence, that the Applicant has not established irreparable harm associated with being returned to India. C. Balance of Convenience [35] In view of the findings above, I find that the balance of convenience weighs in favour of the Respondent. . [36] Canada has an interest in the prompt removal of persons whose refugee claims have not been upheld (as articulated in s. 48(2),IRPA).

Canada also has an interest in respecting its obligations under the Canadian Charter of Rights and Freedoms, in particular theright to “life, liberty and security of the person” set out in s. 7, as described by the Supreme Court of Canada in Suresh v Canada(Citizenship and Immigration), 2002 SCC 1 , [2002] 1 SCR 3.

Furthermore, Canada has an interest in living up to its solemnundertakings in international law, most particularly the United Nations Convention Relating to the Status of Refugees. [37] In view of this, and speculative nature of the risk of harm, and considering all of the circumstances of this case, I find the balance of

convenience weighs in favour of the Respondent. ORDER in IMM-6260-18 THIS COURT ORDERS that the application for a stay of removal pending the determination of the Applicant’s application for judicial review is denied. "William F. Pentney" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-6260-18 STYLE OF CAUSE: SHAFIQUA IRSHAD KHAN v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: DECEMBER 17, 2018 order AND REASONS: PENTNEY J.

DATED: DECEMBER 17, 2018 AMENDED: December 18, 2018 APPEARANCES : Rashid Khandaker For The Applicant Eleanor Elstub For The Respondent SOLICITORS OF RECORD : Rashid Khandaker Barrister and Solicitor Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent