2018 FC, 2018 FC 1301

Date: 20181221 Docket: IMM-6261-18 Citation: 2018 FC 1301 Toronto, Ontario, December 21, 2018 PRESENT: The Honourable Mr. Justice Pentney BETWEEN:ANTONIO ALIPIO DE SOUSA NETO LUCIANA SOARES DOS SANTOS ANTHONY DAVI DE SOUSA REBECCA MARY DE SOUSA VICTORIA ANNE DE SOUSAApplicantsandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] The Applicants seek a stay of removal, scheduled for December 22, 2018, to Sao Paulo, Brazil. These are my reasons for grantingthis order. I.

Background [2] The Applicants are a family of five (a father, mother, and three children) all of whom are citizens of Brazil. They arrived in Canadain April 2014 on visitors’ visas, and have remained in Canada ever since. [3] In June 2017 they received an exclusion order, for having overstayed their visas. Since then they have submitted four applicationsfor permanent residence on humanitarian and compassionate [H&C] grounds, as well as a pre-removal risk assessment [PRRA]. Three ofthe H&C applications as well as the PRRA have been turned down.

The fourth H&C application – which was submitted in September2017 - remains pending. [4] An exclusion order was issued against the family, and removal proceedings were commenced in July 2017. On January 11, 2018 theApplicants were told to report to the Canada Border Services Agency [CBSA] office on March 26, 2018, with plane ticketsdemonstrating they would be departing Canada on or before July 10, 2018. The Applicants went to the CBSA office on January 19,2018, and stated that they could not afford to purchase plane tickets for the entire family.

CBSA directed them to return on May 24,2018, to receive tickets to be booked by CBSA, for their departure on or before July 10, 2018. [5] The Applicants reported to CBSA on May 24, as directed, and requested an administrative deferral of their removal – to give thefamily more time to prepare for their departure.

The CBSA officer granted this request, changing their scheduled removal date from July10, 2018 to on or before December 22, 2018. [6] This new removal date is now approaching, and on December 10, 2018, the Applicants made a request to CBSA to defer theirremoval until their current H&C application is decided, or, in the alternative, until the end of the current school year in Canada. Thisdeferral request was refused on December 15, 2018. The Applicants have filed an application for leave to seek judicial review of thisdecision, and in addition they have brought this application for a stay of removal. II.

Issue and Analysis [7] The only issue in this case is whether a stay of removal should be granted in these circumstances. [8] 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)

[9] This three-pronged test is well-known, and it has been applied in the immigration context in Toth v Canada (Minister of Employmentand Immigration), (FCA). The Applicants must meet all three elements of the test, though in practice there is oftensome overlap between the three elements. In the end, I must make an overall assessment – as the Supreme Court of Canada recentlynoted: "“The fundamental question is whether the granting of an injunction is just and equitable in all of the circumstances of the case.”"(Google Inc v Equustek Solutions Inc, [2017] 1 SCR 824, 2017 SCC 34 , para 25).

The application of this test is highlycontextual and fact-dependent. A. Serious Issue [10] 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 [Wang] ; and Baron v Canada (Minister of Public Safety and EmergencyPreparedness), 2009 FCA 81, [2010] 2 FCR 311 [Baron], at para 67).

This is because the granting of a stay of removal may, in effect,give the Applicants the remedy they are seeking in the judicial review application, since it will defer their removal from Canada (Wang). [11] Officers have a limited discretion to defer removal: Baron, para 49. Subsection 48(2) of the Immigration and Refugee ProtectionAct, SC 2001, c 27 [IRPA] provides that a removal order "“must be enforced as soon as possible.”" The Officer is limited to consideringwhen the valid removal order should be enforced.

One set of considerations relates to whether an immediate removal will expose theapplicant to the risk of death, extreme sanction, or inhumane treatment: Wang, cited with approval in Baron at para 51. [12] It is recognized, however, that other considerations may influence the timing of the removal, including the short-term best interestsof the child.

This can include deferring removal to allow the children to complete their school year, or to obtain further medicaltreatment, or to enable arrangements to be made for the care of the child where the parent is leaving but the child is staying in Canada:see Munar v Canada (Minister of Citizenship and Immigration), 2005 FC 1180 , [2006] 2 FCR 664 [Munar], paras 36-40, citedwith approval in Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 [Lewis], at paras 59 and 83.

Thelist of considerations is not closed, and each case must be assessed based on its particular circumstances. [13] A judicial review of a deferral decision is done on the standard of reasonableness: Lewis, paras 42-43. [14] The Applicants assert that the officer’s denial of their deferral request is unreasonable, because the officer erred in determining thattheir fourth H&C application was not "“timely”", and failed to engage in the appropriate best interests of the child analysis.

In my view,it is not necessary to address both issues, because I find that the Applicants have met the high threshold in regard to the "“serious issue”"in relation to the best interests of the child analysis of the officer. [15] In regard to the best interests of the child, in my view the following factors are the most pertinent: The eldest daughter is now four months away from completing high school. She has experienced anxiety and depression related toher experience of violence and threats in Brazil, and has engaged in self-harming behaviour associated with this.

Recently she hasbeen undergoing treatment and taking medication which has improved her condition, and she appears to be on track to successfulcompletion of her school year. There is evidence that she has significant anxiety related to possible removal to Brazil; The middle child is in grade 6, and doing well in school; she is likely best able to deal with the difficulties associated with removal,although it appears she does not speak Portuguese. There is evidence that she also has significant anxiety related to a possibleremoval to Brazil; The youngest child is in grade 2, and he has Down syndrome.

He is receiving support and doing well in school; it is not clear whatsupport may be available to him in Brazil. It appears he also does not speak Portuguese. [16] The Applicant claims that the officer erred in relying too much on the last H&C decision in regard to the best interests of thechildren, and by not conducting the proper analysis of the short-term BIOC considerations.

The Respondent submits that the officer wasentitled to refer to that H&C decision because the deferral request essentially asserted the same grounds, and so it was not an error for theofficer to rely on it. [17] I find that the Applicants have raised a serious issue regarding the officer’s best interests of the child analysis. In view of theinterlocutory nature of these proceedings, and the time pressure associated with this stay of removal, I will not engage in a thoroughanalysis of this point.

In essence, I find that the officer did not engage with the evidence on the short-term impact of the timing of thisremoval for this family in these particular circumstances. [18] In particular, the officer did not mention the most recent medical or other evidence regarding the impact on the children of aninterruption of their education. This factor is repeatedly referred to by decisions as one basis for a deferral, and I agree with theRespondent that the fact that a removal may occur during a school year is not – in and of itself – an automatic bar on removal (see, forexample: Jackson v.

Canada (Public Safety and Emergency Preparedness), 2011 FC 1381 , para 31). [19] However, in the particular circumstances of this case, I find that the officer did not engage with the evidence about the currenteducational achievements and medical treatment of the eldest daughter, or the evidence that the two younger children do not speakPortuguese, the language in which they would be educated in Brazil (and there is no indication these parents can send their children toprivate school in English). [20] The reference by the officer that "“insufficient evidence was submitted to this office to show that the children would be deniededucation when they return to Brazil”" is an indication that the officer did not consider the appropriate evidence, or measure it againstthe proper test – which requires a careful and sensitive analysis of the short-term best interests of the children.

[21] There was no claim that the children would be "“denied”" education upon their return to Brazil.

Rather, the deferral request was toprevent the inevitable disruption of removal mid-year – for a young woman with psychological difficulties associated with herexperience in Brazil, who has spent her entire formative high school years in Canada, and is now four months away from graduating highschool; for the sister who is four months away from graduating elementary school, and for the youngest child who has Down syndromeand is receiving the specialized support he needs to succeed at school. [22] I find that the Applicant has demonstrated a serious question as to whether the officer’s analysis is "“reasonable, transparent orintelligible”" in regard to the legal issue and in light of the most recent relevant evidence.

This is sufficient to meet the first element ofthe test. [23] For these reasons, I find that the Applicant has met the threshold of establishing quite a strong case in relation to the underlyingjudicial review of the refusal to defer removal. B. Irreparable Harm [24] On the facts of this case, I find there is considerable overlap between the arguments and evidence in support of the serious issue andirreparable harm elements of the test.

This is not uncommon where the case involves a challenge to a refusal to defer removal: Kanumbiv Canada (Immigration, Refugees and Citizenship), 2018 FC 336, at para 23. [25] The law requires that irreparable harm be established based on evidence, not mere speculation. [26] The case-law of this Court demonstrates that in some instances the interruption of a school year has been found to be sufficient todemonstrate irreparable harm, and in other cases it has not: contrast Kakonyi v Canada (Public Safety and Emergency Preparedness),2008 FC 1410 with Commissiong v Canada (Minister of Citizenship and Immigration), 2001 FCT 539. [27] In my view, it is not possible to draw clear lines on this – each case must be assessed on its merits.

However, the impact on a child’slife of the likely loss of a school year cannot be discounted. The harm cannot be undone. I would adopt the words of Justice Grammondin Iheonye v Canada (Minister of Public Safety and Emergency Preparedness), 2018 FC 375, at para 20: "“Moreover, the course ofone’s childhood cannot be changed retroactively. Children are particularly sensitive to the way their lives unfold.”" [28] As I have noted above, in this particular case the harm is not just separation from school friends, or the "“routine, if painful,incident(

s) of removal”": see Ghanaseharan v Canada (Minister of Citizenship and Immigration), 2004 FCA 261 , para. 14. [29] On the facts of the case before me, the harm relates to the psychological condition of the eldest daughter, and its impact on her life,her personal security, as well as her school performance in relation to her last term in high school.

In addition, the uncertainty regardingthe impact on the two younger children of moving mid-year into a school environment in a language they do not understand, and inregard to the special supports enabling the youngest child to succeed in school, is a relevant consideration. [30] In view of all of these specific circumstances, and considering the evidence as a whole, I find that the Applicants have establishedirreparable harm associated with being returned to Brazil. C.

Balance of Convenience [31] In view of the findings above, and having weighed the competing considerations, I find that the balance of convenience weighs infavour of the Applicants. [32] As a general matter, Canada has an interest in the prompt removal of persons whose refugee claims have not been upheld (asarticulated in s. 48(2), cited above).

This is not merely a matter of administrative convenience, it goes to a wider public interest inensuring support for the integrity of the immigration program as a whole: Baron; Vieira v Canada (Public Safety and EmergencyPreparedness), 2007 FC 626. [33] Canada also has an interest in respecting its obligations under the Canadian Charter of Rights and Freedoms, in particular the rightto "“life, liberty and security of the person”" set out in

section 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, and in this casethe United Nations Convention on the Rights of the Child. [34] In this case, the evidence shows that the father is working – without lawful authorization – but I would note from the evidence thatthe family has never relied on the assistance of the state.

There is no security or other risk indicated in the evidence. [35] In the circumstances of the case, and in light of the evidence regarding the needs of the children, in my view there is a stronginterest in ensuring that the transition to Brazil for this family – and these children – is done in a way which seeks to ensure that theharms and risks are minimized. [36] However, I also note the Respondent’s submission that this family has been aware since January 2018 that their removal to Brazilwas more than a distant possibility – it had moved into the active planning stages, and their repeated attempts to gain status throughH&C applications and a PRRA had not been successful.

They asked for and obtained a deferral of the removal originally scheduled forJuly 2018. Now they seek another, and provide no evidence that they have made any efforts to prepare for a smooth transition for theirchildren. [37] The Applicant argues that although the family knew their removal was delayed beyond July, it was only in late November that theylearned of the specific removal date of December 22, 2018. This was not enough time for them to plan their departure.

[ 38 ] In my view, this is the most troubling aspect of this case. As I see it, the family has been desperately hoping to find a way to remain in Canada. Their incentives are to stay, not to plan for their removal. The officer in the deferral decision notes the lack of evidence in regard to education or medical care in Brazil – yet the officer does not point to any general, publicly available information regarding that, to show that education and health care in Brazil is generally adequate, and that there is some capacity to support special needs.

And no such information was filed in relation to this motion. [ 39 ] So the Court is left looking into somewhat of a void. By way of obiter, I observe that it would have been preferable if the Respondent had presented some more general country condition information in regard to these matters, at least in the context of the stay application – if not in the record of the deferral decision.

This would bolster their position that the public interest weighs in favour of prompt removal, and any speculation about concerns relating to education or health care do not correspond to the general information available about the particular country. This would not, of course, prevent the Applicants from filing evidence about their efforts to make suitable arrangements, and any barriers they may face in doing so.

It would, however, address the complete absence of any contextual evidence on this question. [ 40 ] Having given the matter careful consideration, I find the balance of convenience weighs in favour of the Applicants. [ 41 ] I would add here that the Applicants submitted that they simply did not have sufficient time to plan their departure and to ensure an adequate transition for their children. I am granting them that time. If they seek a future deferral or stay of removal, no doubt my decision will be a consideration for any future decision-maker.

The evidence shows that these are caring and loving parents seeking to support all of their children. They should now begin to work with authorities in Brazil, and any network of family of friends they may have there, to make these plans. III. Remedy [ 42 ] Although the original material sought a stay of removal pending the determination of the fourth H&C application and in the alternative until the end of the school year, in oral submissions the Applicants focused on a stay until the end of the school year.

In my view, that is appropriate in the circumstances. [ 43 ] For the reasons set out above, I will issue an order staying the Applicants’ removal from Canada until June 30, 2019, a few days after the end of the current school year. ORDER in IMM-6261-18 THIS COURT ORDERS that the application for a stay of removal is granted until June 30, 2019. "William F.

Pentney" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-6261-18 STYLE OF CAUSE: ANTONIO ALIPIO DE SOUSA NETO ET AL v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: December 20, 2018 ORDER AND REASONS: PENTNEY J. DATED: December 21, 2018 APPEARANCES : Steven Tress For The Applicants

Erin Estok For The Respondent SOLICITORS OF RECORD : Barrister and Solicitor Toronto, Ontario For The Applicants Attorney General of Canada Toronto, Ontario For The Respondent