2019 FC, 2019 FC 1492

Date: 20191122 Docket: IMM-7008-19 Citation: 2019 FC 1492 Ottawa, Ontario, November 22, 2019 PRESENT: The Honourable Mr. Justice Roy BETWEEN:NURDEEN ADEMOLA OLATUNBOSUNApplicantandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] This is a motion for a stay of the applicant’s removal from Canada to Nigeria, which is to be effected on November 25, 2019. Arefusal to defer the removal on November 18, 2019 is challenged through a judicial review application filed in Court on November 19,2019. The case was heard on November 21, 2019.

For the reasons that follow, the motion for a stay is dismissed. [2] In matters of this nature, an applicant must satisfy the Court that the three-prong test of RJR-MacDonald Inc. v Canada (AttorneyGeneral), (SCC), [1994] 1 SCR 311 and Toth v Canada (Minister of Employment and Immigration), (1988) (FCA), 86 NR 302 is met. That means that a failure on any of the three branches of the test will be fatal.

The three prongsare: 1. is there in the underlying judicial review application a serious issue to be tried? 2. is there irreparable harm that is likely to ensue if the stay is not granted; 3. the balance of convenience must favor the applicant. [3] It follows that the first task is to consider the serious issue alleged to arise from the administrative refusal to defer the execution ofthe removal order. That decision came down on November 18, last. [4] For our purposes, it will not be necessary to delve into the immigration history of the applicant.

After an unsuccessful attempt atbeing granted a permit to come to Canada as a student in 2016 (he was also refused a temporary resident visa on May 3, 2013), Mr.Olatunbosun also spent time in the USA and Great Britain where he chose not to seek asylum; he came to the USA again only to crossthe Canadian border, around Lacolle, Québec, on July 19, 2018, without going through a port of entry.

He sought refugee status and hefound his way to Winnipeg, Manitoba. [5] Following his application for refugee status, the Minister of Public Safety and Emergency Preparedness sought to intervene in hisclaim on February 28, 2019, with regard to the hearing of the claim on March 27, 2019. Essentially, the Minister was alleging that Mr.Olatunbosun lacked credibility as a result of his attempt at obtaining a study permit in 2015. He stated that his father was still alive. Thatfather wrote a letter indicating that he would be supporting his son’s studies in Canada, thus sponsoring his son at the University ofRegina.

However, the basis of his claim for refugee status was that he was threatened in June 2015 by a secret sect in Haiti, which soughtto recruit him by force due to his father being dead and the applicant being listed, presumably with the sect, as his successor in the secretcult. It is difficult to see how the father could have been dead in June 2015 and him signing a letter in support of his son’s study permit 7months later.

The Minister was intervening for the purpose of allowing the Refugee Protection Division to be aware of that state ofaffairs. [6] It is not completely surprising that the applicant’s counsel at the time advised that he should withdraw his refugee application. Therecord shows that he officially withdrew his application on March 18.

Instead, it was suggested, we hear, that he pursue a spousalapplication, being sponsored by his new wife in Canada (the record shows that he was married in Nigeria and was the father of a younggirl, but married his current spouse on February 14, 2019). [7] The applicant seeks to fault his former counsel for not advising him that this withdrawal of his refugee application would have theeffect of preventing him from having a Pre-Removal Risk Assessment (PRRA) for a period of one year and that it would convert adeparture order (issued on July 20, 2018) into a deportation order. [8] In June 2019, an application for the sponsorship of the applicant was submitted.

It was incomplete. There is on this record no suchcomplete application. The applicant contends that a new application was filed on August 6, 2019. The only evidence offered by theapplicant is a notice from Immigration, Refugees and Citizenship Canada, dated August 6, 2019, which ostensibly indicates that "“weare returning your submission …”" (applicant’s motion record, p. 228 and 68). The Deferral Officer, in her decision of November 18,2019, notes that the letter stamped August 6, 2019 does not state that the application had been resubmitted. In fact, the said documentstates the opposite.

The Deferral Officer says that the information system does not show any record of spousal application pending. Anaffidavit submitted by the same Deferral Officer on November 20, 2019 confirms that the Global Case Management System (GCMS)"“does not show that there is an in-progress sponsorship application for the applicant and his spouse”" (affidavit, para 8). In fact, theoriginal application of June 27 was cancelled on July 19 because it was incomplete, according to the GCMS.

[9] The Deferral Officer’s decision of November 18, 2019 followed a number of steps: May 21, 2019: first removal interview with Canada Border Services Agency. Applicant indicated wanting to speak with counsel; September 17, 2019: second removal interview. Again, applicant indicated wanting to speak with counsel; October 30, 2019: notification that removal from Canada scheduled for November 25, 2019; November 13, 2019: request for deferral of removal. It appears that two issues were raised.

The deferral should be granted until the spousal application in progress is concluded and therefugee claim was withdrawn on the advice of counsel, which results, so to speak, into a return to Nigeria where he is at risk because ofthat secret sect which seeks to recruit him. [10] The Deferral Officer disposed of the two issues: there is nothing to consider on the spousal application front since there is none in-progress; ; the applicant chose to withdraw his refugee claim instead of having the matter decided on its merits. He has had three removalinterviews since.

He did not do anything on that front in spite of knowing for many months that his removal "“was imminent”". [11] The applicant’s task is to take that November 18 decision and show that there is a serious issue to be tried concerning that decision.There is no such demonstration. [12] The applicant did not seek to address the "“serious issue”" squarely, or even at all. He rather speaks generally of his inability tohave a PRRA and lacking the faculty to re-open his refugee claim.

The lack of opportunity for a PPRA is the consequence of hisdecision not to pursue his refugee application where he would have had to contend with the misrepresentations of just a few years ago.Having chosen to pursue a sponsorship application, it is a very difficult proposition to argue that his removal prevents him from having aPRRA. One cannot see how the Deferral Officer made a decision that could be unreasonable. The applicant states rather than proves thathe has a good chance of success in his application for sponsorship.

We do not have any evidence or argument to support that assertion.As we shall see, there is not even a sponsorship application in progress. [13] The respondent is right that the burden on the "“serious issue”" prong of the test is significantly higher than what the applicantseems to assume. Counsel spoke in terms of an issue being serious if it is not frivolous and vexatious. Since Wang v Canada (Minister ofCitizenship and Immigration), 2001 FCT 148 , [2001] 3 FC 682 [Wang], there is an elevated test in a case like this one becausethe stay, if granted, effectively grants the relief.

As the Court says at paragraph 12, "“(i)t is that the test of serious issue becomes thelikelihood of success on the underlying application since granting the relief sought in the interlocutory application will give the applicantthe relief sought in the application for judicial review”".

The case of Baron v Canada (Minister of Public Safety and EmergencyPreparedness), 2009 FCA 81, [2010] 2 FCR 311 [Baron] which endorsed fully the Wang decision, is binding on this Court and one canread the following at paragraph 67: [67] While I agree entirely with my colleague’s approach to the “serious issue” prong of the tripartite test in the context of amotion to stay a removal order, I would add the following.

In determining whether a serious issue exists so as to warrant thegranting of a stay of removal, the Judge hearing the motion should clearly have in mind, first of all, that the discretion todefer the removal of a person subject to an enforceable removal order is limited, as explained in Simoes, above, and,particularly, in Wang, above. Second, the Judge should also have in mind that the standard of review of an enforcementofficer’s decision is that of reasonableness. Thus, for an applicant to succeed on a judicial review challenge of such adecision, he or she must be able to put forward quite a strong case.

In my view, the appellants herein clearly did not havesuch a case to put forward. [My emphasis.] [14] The applicant in this case had to satisfy the Court of a serious issue to be tried in the judicial review application of the DeferralOfficer’s decision, not only that he has an issue that is neither frivolous nor vexatious. None was identified. The two issues identified,that a PRRA is not available, and he has an on-going sponsorship application, which is not proven by the applicant and is specificallycontradicted by the evidence of the GCMS.

The Court may have found that the issues raised by the applicant are in fact frivolous andvexatious. There is no need to reach such conclusion, as it suffices to conclude that the elevated threshold as of Wang was not met. [15] I wish to add, parenthetically, that the existence of a sponsorship application could not be an automatic bar to removal. In Baron, theCourt of Appeal explicitly found that a pending Humanitarian and Compassionate application (H&C application) did not prevent aDeferral Officer from refusing to defer.

Similarly, the Court of Appeal, in Canada (Public Safety and Emergency Preparedness) v Shpati,2011 FCA 286, [2012] 2 FCR 133, came to the same result in a case where it was a PPRA that was pending.

Thus, even if there were asponsorship application pending, a deferral was less than guaranteed if an H&C application or a PPRA application are not sufficient togain a deferral. [16] It follows that the stay motion cannot be successful. [17] Following the filing of the respondent’s motion record in which the respondent noted, with good reason, that the applicant has noteven filed his own affidavit in his stay motion, especially concerning the issue of "“irreparable harm”", the applicant sought to file anaffidavit with the Court at the hearing.

That was strenuously opposed by the respondent. [18] There is not much doubt that the affidavit sworn on November 21, for a hearing on that same day, is for the purpose of seeking tofill some gaps in the applicant’s case. Such a way of proceeding prevents the respondent from responding to such an affidavit comingafter the motion record of the respondent has been filed, either by not allowing new evidence to counter the late-arriving affidavit to be

considered, or preventing the cross-examination of the affiant. It should be remembered that the Minister of Public Safety and Emergency Preparedness was to intervene in the refugee application in order to argue that the applicant is not credible in view of the false statements he made in 2015-16 in order to obtain a study permit in Canada.

Indeed, the applicant withdrew his refugee application following the Minister’s intervention and before the case was to be heard (February 28, 2019: Ministerial intervention; March 18, 2019: formal withdrawal of refugee application; March 27, 2019: haring of refugee application). Given the outcome of the stay motion, it will be enough to state that this attempt was frowned upon, without having to rule on the matter. The tripartite test requires that the three branches be met. As soon as one of the branches is not satisfied, the remedy sought is not available.

It suffices to dispose of the motion to conclude that there is no serious issue. [ 19 ] It was agreed at the hearing of this motion that the style of cause must be amended to have only one respondent, the Minister of Public Safety and Emergency Preparedness, the Minister responsible for the removal of aliens. [ 20 ] The applicant sought costs in this case. None is awarded. ORDER in IMM-7008-19 THIS COURT ORDERS that : 1 . The motion for a stay of the execution of the removal order is dismissed. 2 .

The style of cause is amended to refer exclusively to the Minister of Public Safety and Emergency Preparedness. “Yvan Roy” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-7008-19 STYLE OF CAUSE: NURDEEN ADEMOLA OLATUNBOSUN v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: by teleconference between OTTAWA, ONTARIO and winnipeg, manitoba DATE OF HEARING: NOVEMBER 21, 2019 ORDER AND REASONS: ROY J.

DATED: november 22, 2019 APPEARANCES : Lara Badmus For The Applicant Alexander Menticoglou For The Respondent SOLICITORS OF RECORD : Bim Akin Law Office Lawyers Winnipeg, Manitoba For The Applicant Attorney General of Canada Winnipeg, Manitoba For The Respondent