2022 FC, 2022 FC 1038

Date: 20220713 Docket: IMM-6262-22 Citation: 2022 FC 1038 Toronto, Ontario, July 13, 2022 PRESENT: Madam Justice Go BETWEEN:ZIYAD GULUZADEApplicantandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] The Applicant, Mr.

Ziyad Guluzade, seeks a stay of his removal to Azerbaijan, scheduled for July 14, 2022, until the finaldetermination of his application for leave and for judicial review of a decision dated June 29, 2022 by an Inland Enforcement Officer[Officer] denying the Applicant’s request to defer the execution of the removal order [Decision]. [2] I am granting the application for a stay for the reasons set out below. I. Context [3] The Applicant’s mother is a former journalist in Azerbaijan and made a successful claim for protection in Canada on the basis of herpolitical opinion in 2014.

In 2014, only children under the age of 18 were considered dependents of their parents for the purpose ofpermanent residence [PR] applications. Since the Applicant was 18 when his mother claimed protection, he was not considered hismother’s dependent when she applied for and received PR status. The Applicant’s younger sister, on the other hand, was included and isa PR. [4] After the Applicant came to Canada as a student in June 2017, the Azerbaijani Armed Forces sent a call-up notice to his homerequiring him to report for mandatory military service.

When the Applicant failed to present himself as required, a warrant for his arrestwas issued. [5] The Applicant filed a refugee claim. His claim was denied by the Refugee Protection Division [RPD] and his appeal dismissed by theRefugee Appeal Division [RAD]. The RAD determined that the Applicant was a credible witness and accepted that he would besubjected to a term of up to two years’ imprisonment for evading mandatory military service on return to Azerbaijan.

However, the RADdetermined that imprisonment for evasion of mandatory military service was incidental to a law of general application, and that theApplicant faced no additional risk of mistreatment due to his political opinion. [6] The Applicant challenged the RAD’s decision in the Federal Court, arguing that the RAD failed to assess whether the life-threateningconditions in Azerbaijani prisons amounted to cruel and unusual treatment or punishment pursuant to s.97 of the Immigration andRefugee Protection Act, SC 2001, c 27 [IRPA].

In response, the Minister of Citizenship and Immigration argued that the Applicantshould not be permitted to raise novel arguments which were not previously presented in the RAD appeal.

The Federal Court dismissedthe Applicant’s leave application. [7] By a letter dated June 24, 2022, the Applicant submitted a request to defer his removal, arguing, among other things, that he wouldface risk of serious harm in Azerbaijani prison facilities, and that he would be identified as a failed refugee claimant by the Azerbaijaniauthorities and face risk of persecution as a result. [8] The Applicant will be eligible for a Pre-Removal Risk Assessment [PRRA] as of September 2, 2022. The Applicant has a pendingHumanitarian and Compassionate [H&C] application which he submitted in March 2022.

The Applicant asked that his removal bedeferred until a PRRA assessment or until his H&C application is decided. Finally, citing mental health evidence and family ties toCanada, the Applicant submitted that special circumstances existed to grant his deferral request. [9] The Officer noted in the Decision that the Canada Boarder Services Agency [CBSA] “has an obligation under s.48 of theImmigration and Refugee Protection Act to carry out removal orders as soon as reasonably practicable” and that the Officer was of theopinion that a deferral was “not appropriate in the circumstances.” II.

Issues and Legal Test for Obtaining a Stay [10] The only issue is whether a stay of removal should be granted in these circumstances. [11] In order to obtain a stay, the Applicant must meet the tripartite test articulated by the Supreme Court of Canada in Manitoba(Attorney General) v Metropolitan Stores (MTS) Ltd, (SCC), [1987] 1 SCR 110, 38 DLR (4th) 321 [Manitoba], RJR-MacDonald v Canada (Attorney General), (SCC), [1994] 1 SCR 311, 111 DLR (4th) 385 [RJR-MacDonald], and R v

Canadian Broadcasting Corp, 2018 SCC 5, which is the test to be applied to stays of removal: Toth v Canada (Minister of Employmentand Immigration) (1988), (FCA), 86 NR 302, 11 ACWS (3d) 440 (FCA). [12] 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. [13] 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). [14] 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; Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81, [2010] 2FCR 311 at para 67; and Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at para 43. III. Analysis A. Serious Issue [15] At the hearing, the Applicant focused his submission on two issues, namely;

a) the Officer unreasonably determined that theApplicant’s risk of harm arising from the conditions of imprisonment has been duly assessed by the RPD and RAD, and

b) the Officerunreasonably considered the risks faced by the Applicant as a failed refugee claimant. I will address both of these arguments. (

a) Did the Officer Unreasonably Assess the Risks of Harm due to Prison Conditions in Azerbaijan? [16] In his request for deferral, the Applicant provided substantive submissions in support of his position that neither the RPD nor theRAD had considered whether prison conditions in Azerbaijan amounted to cruel and unusual treatment or punishment.

Among otherthings, the Applicant cited a number of country condition reports including a July 2018 report from the Council of Europe detailinginstances of torture employed by Azerbaijani law enforcement agencies against detainees, and the 2020 United States Department ofState Report for Azerbaijan documenting inhuman conditions in detention facilities in Azerbaijan.

The Applicant also cited Asgarov vCanada (Minister of Immigration, Refugees and Citizenship), 2019 FC 106, in which Justice Fothergill noted it was incumbent on theRAD to consider prison conditions in Azerbaijan as a residual s.97 claim. [17] The Applicant’s position is that this issue has been raised and was sufficiently clear in the face of the record such that the RAD hadan obligation to consider it.

With hindsight, the Applicant acknowledged that he could have filed for a reopening of his refugee case, butthe Applicant should not be removed to face risks of torture because his counsel could have, but did not, make better submissions. [18] I agree with the Applicant. It is uncontroversial that neither the RPD nor RAD assessed whether prison conditions in Azerbaijanamounted to cruel and unusual treatment or punishment. [19] None of the evidence and submissions provided by the Applicant were mentioned in the Decision.

Rather, the Officer simply stated: The decisions rendered by the RPD, RAD and the Federal Court were reviewed and considered. I am of the opinion thatsignificant attention has been given to the risk posed to Mr. Guluzade and that the risk outlined by counsel has been dulyassessed. [20] The Officer’s conclusion and reasons stating the “risk outlined by counsel has been duly assessed”, in my view, was not responsiveto the Applicant’s submission. [21] I also reached this conclusion because nowhere in the Decision did the Officer refer to the specific risk flowing from the prisonconditions in Azerbaijan.

Instead, the Officer quoted counsel’s submission about the Applicant being “a military service evader”, and theRPD’s findings with respect to the punishment due to his failure to serve his military service. [22] I agree with the Applicant that he had presented to the Officer a case of residual objective risk which had not been assessed to date.Rather than addressing the Applicant’s submission, the Officer relied on the previous RPD and RAD findings, which did not deal withthe residual objective risk.

In so finding, the Officer either misunderstood or misconstrued the Applicant’s submissions and evidence. [23] The Respondent argued that the Officer was free to find “insufficient evidence of new risk”, as the Applicant was able to raise all ofhis concerns earlier.

The Respondent argued that the Officer “is not to conduct a ‘last minute’ risk assessment”, particularly when theApplicant already had recourse to the RPD, the RAD and this Court, citing Bonilla v Canada (Public Safety and EmergencyPreparedness), (FC) [Bonilla] and Manohararaj v Canada (Public Safety and Emergency Preparedness), 2006 FC376 at para 35 [Manohararaj]. [24] Both cases cited by the Respondent are, in my view, distinguishable on facts. In Bonilla, the risks the applicant allegedly faced inhis home country were assessed by the RPD just prior to his removal and the RPD found Mr.

Bonilla to lack credibility. In Manohararaj,the applicant had already received a negative PRRA assessment as well as a negative H&C decision. [25] As to the Respondent’s reliance on Delgado v Canada (Citizenship and Immigration), 2018 FC 1227 at para 18 that “a motion for astay of removal is usually not the appropriate forum to reargue harms that have been adequately assessed by previous decision-makers”

or to recast the same risks in a PRRA, the operative word, in my view is “adequately”. In this case, the Applicant’s alleged risks arisingfrom the conditions of imprisonment were never assessed. As such, it was an error for the Officer to conclude the risks in question havebeen “duly assessed”. The Officer’s error is a serious issue to be tried. (

b) Did the Officer Unreasonably Assess the Applicant’s Risks as a Failed Refugee Claimant? [26] Turning now to the Officer’s response to the Applicant’s submission that he would face risk as a failed refugee claimant, theDecision noted: It is with utmost confidence that it may be asserted that the Canadian Government would not share that Mr. GULUZADEinitiated a refugee claim in Canada. Therefore the only way of the government in Azerbaijan learning of the refugee claim,would be if Mr. GULUZADE shared the information. The refugee claim was just one part of Mr.

GULUZADE’s journey inCanada and he is not obligated to disclose that information to the government of Azerbaijan. Given that he holds such strongfear of the ramifications, it is not understood why he would share this. [27] The Applicant submits the Officer was effectively telling him to lie upon his return to Azerbaijan, after an absence of five years, andwith an outstanding warrant waiting for him no less.

Citing Donboli v Canada (Minister of Citizenship and Immigration), 2003 FC 883[Donboli] at para 6, the Applicant quoted Justice Dawson: “The need to lie is more consistent with a fear of persecution than theconsequence of application of a law of general application.” [28] I further note Justice Dawson’s comment at paragraph 8 of Donboli stating: “It is … unseemly for the [decision maker] to advocatethe making of the misrepresentation…” [29] The Respondent submitted, in distinguishing Donboli, that the Officer’s duty was to consider risks that are obvious, serious andthose that have not been raised earlier.

The Applicant would have known that failed refugee claimants were at risk, argued theRespondent, and should have raised it before the RAD. [30] Relying on SK v Canada (Citizenship and Immigration), 2011 FC 788 [SK], the Respondent further submits that Donboli can bedistinguished as that case involved someone who contended that he was on a list of persons to be destroyed and did not turn on whetherthe claimant “had a good cover story.” In contrast, the Respondent submits that the Officer was “clearly mindful of the fact that theapplicant would be examined upon return” and that the authorities did not know about the Applicant’s claim.

As such, the Respondentsubmits, “it was not necessary for the officer to speculate about what information would be gleaned from that interview of what theapplicant would choose to say”: SK at paras 13-15. [31] Unlike the risks arising from the prison conditions in Azerbaijan, the Applicant did not argue that he has made any submission withrespect to the risk he would face as a failed refugee claimant at the RAD. [32] However, I do not accept the Respondent’s argument because in this case, the Officer did not try to speculate what the Applicantwould say upon his return.

Nor was the deferral request denied because the Officer found that the Applicant could have made thisargument before the RPD. Rather, the Officer suggested that the Applicant could avoid negative ramifications simply by not sharing theinformation with the Azerbaijani authorities. This conclusion, plus the fact that the evidence suggests there is a warrant for theApplicant’s arrest, brings the case before me closer to that of Donboli than SK. [33] I therefore find the Officer’s unreasonable assessment of the Applicant’s risks as a failed refugee claimant is also a serious issue tobe tried. B.

Irreparable Harm [34] 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. [35] 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. [36] 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 (T.D.) ; Suresh v Canada (1998), (ON SC), 49CRR (2d) 131, 77 ACWS (3d) 163. [37] As the Applicant points out, serious issues and irreparable harm are “intimately bound up in this motion.” Given my finding that theApplicant’s deferral application was improperly decided, I agree that the prospect of returning the Applicant to a country where he is atrisk of facing cruel and unusual treatment and punishment would result in irreparable harm. [38] This conclusion is supported by this Court’s decision in Win v Canada (Minister of Citizenship and Immigration), 2008 FC 398,where Justice Shore noted: [33] Where an Applicant would face some risk of serious mistreatment, the extent of which has yet to be evaluated, on returnto his country, these circumstances amount to irreparable harm. (Monemi v.

Canada (Solicitor General), [2005] F.C.J. No.

10 (QL) , by Justice James O'Reilly.) C.

Balance of Convenience [ 39 ] In the third branch of the test, the Court has to consider where the balance of convenience lies, taking into consideration the public interest to be weighed together with the interests of private litigants: Manitoba , paras 34, 38. [ 40 ] While there is a public interest in the prompt removal of persons whose refugee claims have not been upheld, Canada also has an interest in ensuring its fulfilment of domestic human rights and constitutional laws, as well as its compliance with international human rights treaties including but not limited to the Convention Relating to the Status of Refugees . [ 41 ] 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 Court are 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 . [ 42 ] In cases such as this, this broader public interest is carried out by ensuring the risks alleged are properly assessed. This was not done here. [ 43 ] In view of my above findings, the balance of convenience lies with the Applicant. ORDER in IMM-6262-22 THIS COURT ORDERS that the application for a stay of removal pending the determination of the Applicant’s application for judicial review is granted.

"Avvy Yao-Yao Go" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-6262-22 STYLE OF CAUSE: ZIYAD GULUZADE v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: HELD VIA VIDEOCONFERENCE DATE OF HEARING: July 12, 2022 ORDER AND reasons: GO J. DATED: July 13, 2022 APPEARANCES : Tyler Goettl For The Applicant Nick Continelli For The Respondent SOLICITORS OF RECORD :

Tyler Goettl Barrister and Solicitor Burlington, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent