2019 FC, 2019 FC 1500

Date: 20191124 Docket: IMM-7053-19 Citation: 2019 FC 1500 Ottawa, Ontario, November 24, 2019 PRESENT: The Honourable Mr. Justice Roy BETWEEN:AZIZ OWOLABIApplicantandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] This is a motion for a judicial stay of a removal order to Nigeria to be executed on November 26, 2019, just of after midnight. Theapplicant has been in Canada without status for 12 years. He arrived in Canada on June 22, 2007 on a fraudulent passport. His refugeeclaim of August 1, 2007 was denied on February 10, 2011.

He has been the subject of a deportation order since April 14, 2011. An H &C application for permanent residency was denied on October 22, 2013. A pre-removal risk assessment resulted in a further negativedecision on June 13, 2016. Another application, this time for permanent residency under the Family Class (FC1) category, was submittedon December 29, 2017 and was cancelled on February 9, 2018 because it was incomplete. A new application followed shortly thereafter,on March 13, 2018. It was denied on July 2, 2019.

A new H & C application for permanent residency was submitted on September 9,last and is currently in the queue. It is estimated that it takes 31 months for these types of applications to be processed. [2] With a deportation order pending, the applicant was advised of the requirement for travel documents. Thus, we are told that heattended the “Nigerian High Commission” in Calgary in February 2018. The affidavit of the deferral officer of November 21, 2019simply states that the process was halted.

The affidavit adds that “(t)he applicant was then advised he required travel documents for bothhimself and for his Canadian born son of whom he had full custody and stated was going with him to Nigeria” (para 9). Thus, theytravelled to Ottawa in April 2019 to attend in person an interview at the Nigerian High Commission. Travel documents were obtained inMay 2019.

In spite of travel documents having been received in order to return to Nigeria, the applicant, as we saw, made another H & Capplication last September. [3] At a removal interview on October 1, 2019, the applicant was advised of the tentative time-frame for removal of mid-November2019. Mr. Owolabi claims not remembering that interview. It is on November 8, 2019 that he attended another interview where he wasgiven a direction to report for removal at 45 minutes after midnight on Tuesday, November 26. [4] The applicant sought an administrative deferral of his removal on November 12, 2019.

It is in the form of a one-page letter in whichreference is made to the pending H & C application and the best interests of Mr. Owolabi’s two sons in Canada. It appears that theapplicant is the father of other children in Nigeria and he is also the father of another son who lives with his mother in Lethbridge. Theson who is to join the applicant in Nigeria and Mr.

Owolabi are estranged from this son’s mother. [5] In the request for deferral of removal, it is stated that the applicant has no had time to prepare for the removal and that the departurewill have deleterious effects on the child. [6] With no evidence to speak of, the deferral officer issued a two and one half-page decision on November 20. He addressed the twoissues raised in the letter of November 12: • The existence of a pending H & C application does not prevent the removal of an alien. There is no automatic stay while an H & Capplication is processed and the processing time is currently 31 months long.

Given that the application has been made very recently, adeferral is not warranted. • As for the interests of the child (who will turn 10 on December 14), the deferral officer concluded that it is in the best interests of theson that he will accompany his father, as planned for quite some time. No evidence was offered about the alleged deleterious effects onthe child who is seen, like other children, as being resilient and adaptable to changing situations. Also, there is limited evidence ofinvolvement between the other son and his father.

The deferral officer concluded that “family separation, unfortunate and disruptive as itmay be, is part of the inherent consequences of deportation. [7] On a motion for a judicial stay of a removal order, an applicant must satisfy the tripartite test enunciated in RJR-MacDonald Inc. vCanada (Attorney General), (SCC), [1994] 1 SCR 311[RJR-MacDonald Inc.] and Toth v Canada (Minister ofEmployment and Immigration), (1988) (FCA), 86 NR 302: 1. Is there a serious issue to be tried in the underlying judicial review application? 2. Will there likely be irreparable harm if the stay is not granted? 3.

Does the balance of convenience favour the applicant? In my view, the applicant does not satisfy any of the three branches: he had to satisfy them all if he were to prevail.

[8] In order to satisfy the “serious issue” branch of the test, an applicant “must be able to put forward quite a strong case” (Baron vCanada (MCI), 2009 FCA 81; [2010] 2 FCR 311, at para 67). Furthermore, the judge must have in mind that the standard of review ofthe deferral officer’s decision is reasonableness, which of course implies a measure of deference on the part of the judge. In other words,a strong case in the context of a review governed by a requirement that the decision under review be shown to be unreasonable, is asignificant threshold.

It is only once that has been established that the “serious issue” branch of the test will be satisfied. [9] Here, the applicant relies on an H & C application to argue that his removal ought to be deferred. The mere existence of such anapplication does not constitute a bar to removal (Baron, para 50). Special considerations are required (Baron para 51). None have beenpresented to the deferral officer.

Pending H & C applications can bring about a different result, but only if brought on a timely basis andthey have not been resolved because of backlogs in the system (Simoes v Canada (MCI), (2000) 7 IMM L.R. (31d) 141, at para 12). Toput it differently, if an H & C application has not been decided because of an inordinate backlog, and the H & C application has been inthe system for quite some time, the applicant should not be penalized as the government decides to deport a person in that predicamentwithout having dealt with a timely application.

The H & C application in our case is very recent and a first one has already been rejected.There are no special considerations. (Lewis v Canada (MPSEP), 2017 FCA 130; Forde v Canada (MPSEP) 2018 FC 1029; Payuket vMPSEP 2019 FC 1466 [10] As for the best interests of the child, is has long been the law that illegal immigrants cannot avoid removal because they are theparents of children born in Canada (Legault v Canada (MCI), 2002 FCA 125; [2002] 4 FC 358, at para 12). What is required is for thedecision-maker to be alert, alive and sensitive to the best interests of children.

There is no preordained decision that follows from suchexamination. The applicant had to show that there was a serious issue to be tried in a judicial review of the deferral officer’s decision, inthe sense that there is quite a strong case where the standard of review is reasonableness. On the record before the decision-maker, therewas only the assertion that Mr. Owolabi needed “time in which to have his application for permanent residence in Canada onhumanitarian and compassionate consideration taking into consideration the best interests of his Canadian born children” (request fordeferral, November 12, 2019).

The deferral officer can hardly be faulted for having found as he did. The applicant’s factum is hardlymore enlightening as it simply states that the officer’s analysis is flawed and cannot stand (factum, para 25). There was not a failure toassess the interest of the children, just a disagreement with the decision reached by the deferral officer, but without any reason that couldfit the bill of “serious issue”. [11] Having reached the conclusion that there is no serious issue, there is no reason to go any further. The motion for a judicial staymust be dismissed in view of the record.

I would add however two observations. First, given the evidence in this case, if the applicantwere to prevail, that would mean that as soon as there are children involved, the mere fact of the presence of children becomes thedeterminative issue and a stay must be granted.

That seems contrary to Baker v Canada (MCI) (SCC), [1999] 2 SCR817, Kanthasamy v Canada (MCI), 2015 SCC 61, [2015] 3 SCR 909; Hawthorne v Canada (MCI), 2002 FCA 475, [2003] 2 FC 555.The best interests of the child principle is said to be highly contextual and a function of the evidence presented. [12] Second, it is likely that the “irreparable harm” branch of the test was not met in this case. There is a strict requirement that there beevidence, not only assertions. These are at best speculative.

The law requires clear, convincing and unspeculative evidence (Lima vCanada (MPSEP), , at para 7 for a review of the Federal Court of Appeal jurisprudence) [13] As a result, the motion of a stay of the removal order set to be executed on November 26 is dismissed. ORDER in IMM-7053-19 THIS COURT ORDERS that: 1. The motion for a stay of the execution of the removal order, scheduled to take place on November 26, 2019, 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-7053-19STYLE OF CAUSE: AZIZ OWOLABI v THE MINISTER OF PUBLIC SAFETY AND EMERGENCYPREPAREDNESSPLACE OF HEARING: BY teleconference between OTTAWA, ONTARIO, edmonton, alberta ANDcALGARY ALBERTADATE OF HEARING: NOVEMBER 23, 2019ORDER AND REASONS: ROY J.DATED: NOVEMBER 24, 2019 APPEARANCES:

Roxanne Haniff-Darwent For The Applicant Galina Bining For The Respondent SOLICITORS OF RECORD : Darwent Law Office Barristers & Solicitors Calgary, Alberta For The Applicant Attorney General of Canada Edmonton, Alberta For The Respondent