2020 FC, 2020 FC 1138

Date: 20201209 Docket: IMM-6347-20 Citation: 2020 FC 1138 Ottawa, Ontario, December 9, 2020 PRESENT: Mr. Justice Pentney BETWEEN: SIYAD ABDIKARIM AWALE Applicant and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent ORDER AND REASONS [ 1 ] The Applicant seeks a stay of his removal to Somalia, which is scheduled for December 9, 2020.

His application for an administrative stay of his removal was denied on December 3, 2020, and he has filed an application for leave and judicial review of that decision. [ 2 ] The Applicant submits that he and his wife, and their unborn twins, will face various risks and hardships if he is forced to leave. In particular, he points to the fact that his wife is pregnant and due to deliver twins on April 2, 2021, mere months away. His wife has refugee status in Canada, and has an outstanding application for permanent residence that includes him as her spouse.

In addition, he has recently filed an application for humanitarian and compassionate (H&

C) relief. [ 3 ] For the reasons set out below, I am granting the application for a stay. I. Context [ 4 ] The Applicant left Somalia in 1991, and he travelled to several countries before ultimately arriving in the United States. He came to Canada in 1995 and filed a refugee claim. However, he decided to return to the United States the following year because his fiancée had been diagnosed with cancer. By virtue of having left Canada, the Applicant was deemed to have abandoned his refugee claim. [ 5 ] He then lived in the United States for 21 years.

During that time he received two criminal convictions; in June 2003 he was convicted of drug possession, and in November 2011 he was convicted of conspiracy to possess drugs with intent to distribute. Both convictions relate to khat, a traditional stimulant. [ 6 ] On November 11, 2017, the Applicant entered Canada near Emerson, Manitoba, and he made a new refugee claim. Because he had abandoned his earlier claim, he was found to be ineligible to submit a new one.

His application for leave and judicial review of that decision was dismissed. [ 7 ] On May 4, 2018, the Immigration Division of the Immigration and Refugee Board found the Applicant to be inadmissible to Canada for serious criminality because of his drug convictions, and issued a deportation order against him.

On March 6, 2020, his application for a Pre-Removal Risk Assessment (PRRA) was refused; his application for leave and judicial review of that decision was dismissed. [ 8 ] A Canada Border Services Agency (CBSA) officer conducted a removal interview with the Applicant on March 12, 2020, during which he was given the negative PRRA decision, and was told that the CBSA would be applying for travel documents and then scheduling his removal.

However, on March 16, 2019, Canada imposed wide travel restrictions due to the COVID-19 pandemic, and thus the CBSA did not pursue the request for a travel document. [ 9 ] On September 10, 2020, another CBSA officer conducted a second removal interview, during which the Applicant was advised that the travel document application would be submitted and that his removal would be scheduled once it was obtained.

This was followed by a third removal interview on November 19, 2020, at which time the Applicant was advised that his removal was scheduled for December 9, 2020. [ 10 ] On November 30, 2020, the Applicant requested that the CBSA defer his removal. He asked that the Officer consider the following factors: He was married to Ms. Ismail on March 6, 2020. She had fled Somalia for Canada in May 2017 because of her fear of Al-Shabaab, and her claim for refugee status was accepted on March 3, 2020. She applied for permanent residence on April 7, 2020, listing the Applicant as her spouse. Ms.

Ismail is pregnant and due to deliver twins on April 2, 2021. She was hospitalized for a week in October 2020 due to issues associated with the pregnancy; He is the breadwinner for the family because his wife has been unable to work due to complications during her pregnancy. It would impose an extreme hardship on the Applicant, his wife, and their twins if he is unable to be with her to support her during the remainder of the pregnancy and after the children are born.

His wife only recently arrived in Canada, and has no family here to support her; He has rehabilitated from his prior criminality, and has not committed any further infractions. He will be submitting an application for Criminal Rehabilitation in the United States but his efforts to obtain the necessary paperwork have been delayed due to

restrictions associated with COVID-19; He has been employed since 2018, and has contributed to his local community. He submitted an application for H&C relief on November 30, 2020; He has medical conditions that require ongoing monitoring, including severe hypertension that requires daily medication, as well as meningioma and cysts on his right kidney that must be monitored on an ongoing basis.

Furthermore, he had a tonsillectomy and inferior turbinate reduction procedure, which will require follow-up monitoring; He is concerned about his safety, because he has no immediate family in Somalia, has not lived there for 30 years, and the security situation remains unfavorable with the ongoing civil war and terrorist attacks.

He has received threats if he was to return and attempt to re-claim his family property in Somalia. [ 11 ] Based on these considerations, the Applicant requested a deferral of his removal pending the decision on his wife’s permanent residence application. [ 12 ] The officer denied the deferral request, finding that while the Applicant’s removal from Canada would undoubtedly have an impact on the best interest of the twins when they are born, and it will be difficult for them, " “it would be even more challenging if Mr.

AWALE were to leave Canada after a bond has been formed.” " The officer noted that the Applicant knew that he was at risk of removal before he began his relationship with his wife, and he knew that his removal was in the process of being scheduled when his wife became pregnant.

While he would be absent for the formative phases and developmental milestones in the children’s lives, he could maintain his relationship with them through FaceTime or Skype communications. [ 13 ] In regard to the emotional and psychological impact on the Applicant and his wife, the officer noted that such hardship is a normal consequence of removal, which can be mitigated to some extent through similar means of communication.

Although the Applicant is identified as the primary income earner, the evidence did not demonstrate that his wife could not reach out to friends, financial institutions, or seek government assistance if she experienced financial difficulties. There are letters from friends, co-workers, and community members indicating that some support is available for Ms. Ismail. [ 14 ] The officer found that the evidence did not support the Applicant’s claim that his medical conditions required ongoing care or treatment, and the evidence did not establish that the medications he needed were not available in Somalia.

In addition, the CBSA offered to cover the cost of his prescription medication for a limited period of time, so that he could make arrangements to obtain it in Somalia. [ 15 ] While the officer accepted that the Applicant faces a risk of contracting COVID-19, that risk exists both in Canada and in Somalia. The Applicant’s employment in Canada placed him in close contact with various individuals and so it posed a degree of risk.

In addition, the evidence showed that Somalia has a very low case count, and the Applicant could look to his wife’s family members there to provide support and accommodations that would reduce his risk of infection. Furthermore, the officer noted that the CBSA has implemented precautionary safety measures to reduce the risk of exposure during the trip, and there are no travel restrictions preventing the Applicant’s return to Somalia. [ 16 ] On the question of the Applicant’s fears for his safety, the officer noted that these risks were assessed by the PRRA officer who denied his claim.

The officer also found that although the Applicant’s criminal convictions were not recent, he had not taken the steps to apply for rehabilitation in the United States, although that option had been open to him since December 2019.

In the absence of that, the Applicant remained inadmissible pursuant to subsection 36(1) of the Immigration and Refugee Protection Act , SC 2001 c 27 [ IRPA ]. [ 17 ] Finally, the officer found that the existing applications for permanent residence and H&C relief did not warrant a deferral of removal, since the former was not going to be decided imminently, and the latter had only recently been submitted.

Therefore, the officer concluded that a deferral of removal was not warranted. [ 18 ] The Applicant has filed an application for leave and judicial review in regard to the decision denying his request for a deferral of his removal, as well as this application for a stay of his removal. II. Issues [ 19 ] The only issue is whether a stay of removal should be granted in these circumstances. III. Analysis A. The Legal Framework [ 20 ] In considering whether to grant a stay of removal, this Court applies the same test as for interlocutory injunctions.

The Supreme Court 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 the applicant 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 is refused.

Finally, the third stage of the test requires an assessment of the balance of convenience, in order to identify the party which would suffer greater harm from the granting or refusal of the interlocutory injunction, pending a decision on the merits. ( R v Canadian Broadcasting Corp , 2018 SCC 5 at para 12 , references omitted [ CBC ]) [ 21 ] This three-pronged test is well-known. It had been set out in earlier decisions of the Supreme Court: Manitoba (AG) v Metropolitan

Stores Ltd, (SCC), [1987] 1 SCR 110, [1987] SCJ No 6; RJR — MacDonald Inc v Canada (AG), (SCC), [1994] 1 SCR 311, [1994] SCJ No 17 [RJR MacDonald]. It was also applied in the immigration context in Toth v Canada(Minister of Employment and Immigration) (1988), (FCA), 86 NR 302, 11 ACWS (3d) 440 (FCA). Of course, theapplication of this test is highly contextual and fact-dependent; the Supreme Court of Canada has recently emphasized that"“[u]ltimately, the question is whether granting the injunction would be just and equitable in all the circumstances of the case”" (GoogleInc v Equustek Solutions Inc, 2017 SCC 34 at para 1 [Google]).

(1) Serious Issue [22] 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 at para 11; and Baron v Canada (Public Safety and Emergency Preparedness), 2009 FCA81 at para 67; Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at para 43 [Lewis]).

(2) Irreparable Harm [23] Irreparable harm refers to harm that cannot be compensated in money; it is the nature rather than the magnitude of the harm whichis to be examined (RJR MacDonald at 315). In the context of a stay of removal, the harm usually relates to the risk to the individual(

s) ofharm upon removal from Canada. It may also include specific harms that are demonstrated in regard to any persons directly affected bythe 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 (Minister ofCitizenship and Immigration), 2004 FCA 427).

(3) Balance of Convenience [25] The third element requires "“an assessment of the balance of convenience, in order to identify the party which would suffer thegreater harm from the grant or refusal of the interlocutory injunction, pending a decision on the merits”" (CBC at para 12).

This issometimes referred to as the balance of inconvenience. [26] In this regard, while Canada has an interest in the prompt removal of persons whose refugee claims have not been upheld (asarticulated in subsection 48(2) of IRPA), the issue in a stay of removal is when the removal should occur, and whether delaying it for alimited period of time will cause significant harm to the public good.

The jurisprudence reminds us that this is not merely a matter ofadministrative convenience, it goes to the wider public interest in ensuring confidence in the integrity of the immigration program as awhole (Vieira v Canada (Public Safety and Emergency Preparedness), 2007 FC 626; Ghanaseharan v Canada (Citizenship andImmigration), 2004 FCA 261 at para 22). B. Discussion [27] One of the challenges in addressing the merits of a case at an interlocutory stage is that the decision must be made in an abbreviatedtime-frame, and long before a full argument or consideration of the merits of the underlying application.

This is particularly pronouncedin cases where the underlying judicial review relates to a deferral decision, in light of the overlap between the arguments and evidence onthe stay application and those that will be brought forward if and when the underlying judicial review is argued. [28] In light of that, I will not address the first element in any detail, beyond saying that I agree with the Applicant that the officer’slimited and inadequate analysis of the short-term best interests of the child, in the context of this particular family at this particular time,falls short.

The officer’s conclusion that the difficulty of separation would be greater after the children are born may be true, but is notresponsive to the submissions or the evidence, nor does it reflect the type of analysis of the short-term best interests of the child calledfor by the jurisprudence (see, for example, Lewis at paras 55-59; Toney v Canada (Public Safety and Emergency Preparedness), 2019FC 1018). [29] I am satisfied, in the particular circumstances of this case, that the Applicant has met the first element of the test. [30] In regard to irreparable harm, as I noted during the hearing, the key considerations relate to the impact of removal on the Applicantand his wife between now and the birth of the twins, and then the immediate, short-term impact of his absence during the initialadjustment to life with two infants. [31] The Applicant’s wife is pregnant with twins, who are due to arrive on or around April 2, 2021.

The evidence shows that theApplicant’s wife spent a week in hospital for treatment of vomiting and nausea associated with her pregnancy. There is no evidence ofany ongoing medical treatment beyond the usual monitoring during pregnancy. Although the Applicant’s wife has been able to findemployment, she works as a casual Personal Care Worker, and her earnings from late August to late November of this year amount tojust over $2,200.

The Applicant has been employed full-time since 2018, and the evidence is consistent with the conclusion that he is themain income earner for the family. [32] These considerations are determinative in regard to irreparable harm.

The removal of the Applicant now will have a significantlydetrimental impact on the financial, emotional, and practical situation of his wife and unborn children between now and the birth of thetwins, and the immediate aftermath as the family adjusts to life with two babies; it will also thereby have a significantly negative impacton the Applicant (see Ismail v Canada (Public Safety and Emergency Preparedness), 2019 FC 845 at para 16, and the discussion inGalusic v Canada (Public Safety and Emergency Preparedness), 2020 FC 223 at paras 22-42). [33] The Applicant’s wife came to Canada in 2019, and only recently obtained refugee status.

She has found some employment, and

there are letters from two people from Winnipeg indicating that they know her and the Applicant, and that they have enjoyed spending time together. The evidence shows that neither the Applicant nor his wife have any immediate family members in Canada, and there is no other obvious source of financial, emotional, or practical assistance for the Applicant’s wife either during the period leading up to the birth of the twins, or the immediate period of transition after the birth.

This is the crucial period during which the Applicant’s absence would be most keenly felt, and there is no evidence of any other plan or realistic possibility for the Applicant’s wife to obtain such support. [ 34 ] In the particular circumstances of this case, I find that this is sufficient to demonstrate that the Applicant has met the test for irreparable harm. [ 35 ] As is usual in these types of cases, the finding on the balance of convenience usually tends to follow the findings on the first two elements.

The government has an interest in the prompt removal of people without legal status in Canada, but it also has an interest in ensuring the successful integration of refugees and the successful transition of a new mother to life with a baby, or in this case twins. [ 36 ] The evidence shows that the Applicant has two criminal convictions from many years ago, but that he has no other convictions, has now found work, and has become active in his community.

The government did not allege that there are any particular risks associated with his continued presence in Canada. [ 37 ] I find that the balance of convenience weighs in favour of the Applicant. [ 38 ] In conclusion, it is important to remember that while the three elements of the test must each be given due consideration, in the end a stay of removal is a type of equitable interlocutory relief that is meant to freeze the status quo for a defined and limited period of time.

As stated by the Supreme Court of Canada, " “[u]ltimately, the question is whether granting the injunction would be just and equitable in all the circumstances of the " " case” " ( Google at para 1 ). [ 39 ] In this case, despite the able and sensitive submissions of counsel for the Respondent, I am granting a stay of removal, pending determination of the Applicant’s application for leave and judicial review of the deferral decision. ORDER in IMM-6347-20 THIS COURT ORDERS that the application for a stay of removal pending the determination of the Applicant’s application for judicial review is granted. “William F.

Pentney” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-6347-20 STYLE OF CAUSE: SIYAD ABDIKARIM AWALE v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Ottawa, ONTARIO DATE OF HEARING: december 8, 2020 JUDGMENT AND REASONS: PENTNEY J. DATED: december 9, 2020 APPEARANCES : Katie Leung For The Applicant Brendan Friesen For The Respondent SOLICITORS OF RECORD : Fridman & Company Barristers and Solicitors Winnipeg, Manitoba For The Applicant

Attorney General of Canada Winnipeg, Manitoba For The Respondent