GURMUKH SINGH Applicant v. THE MINISTER OF PUBLIC SAFETY, 2023 FC 784

Date: 20230605 Docket: IMM-6609-23 Citation: 2023 FC 784 Ottawa, Ontario, June 5, 2023 PRESENT: The Honourable Mr. Justice Ahmed BETWEEN:GURMUKH SINGHApplicantandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS I.

Overview [1] The Applicant, Gurmukh Singh, brings a motion for a stay of his removal from Canada, scheduled to take place on June 6, 2023. [2] The Applicant requests that this Court order a stay of his removal to India until the determination of an underlying application forleave and judicial review of the refusal of his deferral request by an Inland Enforcement Officer (the "“Officer”") of the Canada BorderServices Agency ("“CBSA”"). [3] For the reasons that follow, this motion is dismissed. The Applicant does not meet the tri-partite test required for a stay of hisremoval. II.

Facts and Underlying Decisions [4] The Applicant is a 44-year-old citizen of India. His spouse and children reside in India. [5] The Applicant arrived in Canada in 2014. He made a claim for refugee protection in November 2017. In March 2021, the Applicantalso submitted an application for permanent residence ("“PR”"), under the temporary public policy for refugee claimants working in thehealthcare sector during the COVID-19 pandemic.

In September 2021, by request of Immigration, Refugees and Citizenship Canada, theApplicant withdrew his pending refugee claim in order to continue the processing of his PR application. [6] The Applicant’s PR application was refused in a letter dated May 3, 2022, on the basis that he did not meet the eligibilityrequirements under the temporary public policy.

The Applicant also applied for a Pre-Removal Risk Assessment ("“PRRA”"), for whichhe received a negative decision on April 6, 2023. [7] The Applicant’s application for leave and judicial review of the refusal of his PR application was dismissed by this Court, while hisapplication for leave and judicial review of the negative PRRA decision is still pending. [8] CBSA issued a Direction to Report for the Applicant’s removal from Canada on April 21, 2023. The Applicant requested a deferralof his removal on April 27, 2023. The Officer refused the deferral request in a decision dated May 25, 2023. III.

Analysis [9] The tripartite test for the granting of a stay is well established: Toth v Canada (Minister of Employment and Immigration) (1988), (FCA), 86 NR 302 (FCA) ("“Toth”"); Manitoba (A.G.) v Metropolitan Stores Ltd., (SCC), [1987] 1SCR 110 ("“Metropolitan Stores Ltd”"); RJR-MacDonald Inc. v Canada (Attorney General), (SCC), [1994] 1 SCR 311("“RJR-MacDonald”"); R v Canadian Broadcasting Corp, 2018 SCC 5 , [2018] 1 SCR 196. [10] The Toth test is conjunctive, in that granting a stay of removal requires the applicant to establish: (

i) a serious issue raised by theunderlying application for judicial review; (ii) irreparable harm that would result from removal; and (iii) the balance of conveniencefavouring granting the stay. A. Serious Issue [11] In RJR-MacDonald, the Supreme Court of Canada established that the first stage of the test should be determined on an "“extremelylimited review of the case on the merits”" (RJR-MacDonald at 314). This Court must also bear in mind that the discretion to defer theremoval of a person subject to an enforceable removal order is limited. The standard of review of an enforcement officer’s decision is

that of reasonableness (Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 , [2010] 2 FCR311 at para 67) ("“Baron”"). A decision refusing to defer removal requires the Applicant to meet an elevated standard with respect to thefirst Toth requirement of a serious issue for trial, pursuant to Baron. [12] The Applicant submits that the underlying application raises serious issues about the reasonableness of the CBSA’s refusal of thedeferral request.

The Applicant submits that the Officer fundamentally misapprehended the facts and evidence, signalled by the Officer’sstatement that the Applicant had access to a humanitarian and compassionate ("“H&C”") application when the Applicant claims that hedid not. [13] The Respondent submits that there is no serious issue because the Officer reasonably assessed the Applicant’s deferral request, inlight of the facts and evidence. The Respondent contends that the Officer’s mention of the H&C application is clearly a reference to thePR application made under the temporary public policy.

The Respondent submits that aside from this error in nomenclature, theApplicant does not raise a serious issue regarding the substance of the Officer’s deferral decision. [14] Having reviewed the parties’ motion materials and the underlying decision, I agree that there is a serious issue to be tried. Theunderlying application for judicial review raises issues surrounding the Officer’s proper assessment of the Applicant’s circumstances,sufficient to meet the first prong of the Toth test. B.

Irreparable Harm [15] At the second stage of the test, applicants are required to demonstrate that irreparable harm will result if relief is not granted.Irreparable harm does not refer to the magnitude of the harm; rather, it is a harm that cannot be cured or quantified in monetary terms(RJR-MacDonald at 341).

This Court must be satisfied on a balance of probabilities that the harm is not speculative, but does not have tobe satisfied that the harm will occur (Xu v Canada (Minister of Employment and Immigration), [1994] FCJ No 746, 79 FTR 107(FCTD); Horii v Canada C.A.), (FCA), [1991] FCJ No 984, [1992] 1 FC 142 (FCA)). [16] The Applicant submits that he will suffer irreparable harm if returned to India. The Applicant submits that he will be denied theopportunity to argue the underlying applications for judicial review.

He submits that the pain of separation from his family, friends, andemployment is unquantifiable and constitutes irreparable harm. The Applicant further submits that he faces risk and threat to his life as aKhalistan activist in India. [17] The Respondent submits that the Applicant has not made out this prong of the test for a stay of removal.

The Respondent notes thatin order to establish irreparable harm, the Applicant must provide evidence of something more than the inherent consequences ofdeportation, such as family separation (citing Melo v Canada (Minister of Citizenship and Immigration), (FC),[2000] FCJ No 403 (QL) at para 21). The Respondent submits that the Applicant’s allegations of risk regarding his status as a Khalistanactivist have already been assessed by a PRRA officer and found not to be well-founded.

The Respondent contends that these sameallegations cannot then serve as a basis for establishing irreparable harm in a stay motion, and that the Applicant has not raised anyallegation of ongoing risk that he would face him upon return to India. [18] I agree with the Respondent and do not find that irreparable harm is made out in this case. The Applicant provided insufficientevidence to establish that the normal consequences of his removal—such as separation from his family and his employment—rise to thelevel of irreparable harm in his case.

The Applicant’s allegation that he is at risk of persecution in India due his Khalistan activism wasthe same allegation at the center of his PRRA application, which the PRRA officer found not to be well-founded. The same allegationsof risk that have been assessed by a competent trier of fact cannot provide the basis for establishing irreparable harm in a stay motion(Jean v Canada (Citizenship and Immigration), 2009 FC 593 at para 56). I further agree with the Respondent that the Applicant has notdemonstrated that he continues to face the same risk now that he allegedly faced when he initially left India in 2014.

C. Balance of Convenience [19] The third stage of the test requires an assessment of the balance of convenience—a determination to identify which party will sufferthe greater harm from the granting or refusal of the interlocutory injunction, pending a decision on the merits (RJR-MacDonald at 342;Metropolitan Stores Ltd at 129). It has sometimes been said, "“Where the Court is satisfied that a serious issue and irreparable harm havebeen established, the balance of convenience will flow with the Applicant”" (Mauricette v Canada (Public Safety and EmergencyPreparedness), 2008 FC 420 at para 48).

However, the Court must also consider the public interest to uphold the properadministration of the immigration system. [20] The Applicant submits that the balance of convenience favours granting the stay of removal. He submits that the risk of harm hefaces upon removal outweighs the inconvenience to the Respondent in being unable to enforce removal. [21] The insufficient evidence of irreparable harm is determinative of this motion. Nonetheless, the balance of convenience weighs infavour of the Respondent.

Subsection 48(2) of the Immigration and Refugee Protection Act, SC 2001, c 27, states that removal ordersmust be enforced as soon as possible. Lacking sufficient evidence of irreparable harm, the balance of convenience favours the Minister inenforcing the removal order expeditiously. [22] Ultimately, the Applicant does not meet the tri-partite test required for a stay of removal. This motion is therefore dismissed. ORDER in IMM-6609-23 THIS COURT ORDERS that the Applicant’s motion for a stay of removal is dismissed.

“Shirzad A.” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-6609-23 STYLE OF CAUSE: GURMUKH SINGH v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: by videoconference DATE OF HEARING: June 5, 2023 ORDER and reasons: AHMED J. DATED: June 5, 2023 APPEARANCES : Amit Vinayak For The Applicant Neeta Logsetty For The Respondent SOLICITORS OF RECORD : Amit Vinayak Law Office Barrister and Solicitor Brampton, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent