2019 FC, 2019 FC 1502

Date: 20191124 Docket: IMM-7069-19 Citation: 2019 FC 1502 Ottawa, Ontario, November 24, 2019 PRESENT: The Honourable Mr. Justice Roy BETWEEN:JOYCE ONOSE AGBANApplicantandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] Ms. Joyce Onose Agban seeks a judicial stay of her removal from Canada to Nigeria to be executed on November 25, 2019.

She wasrefused an administrative stay by a deferral officer on November 23, 2019. [2] As is well known, an applicant must satisfy the tripartite test for interlocutory injunctions and stays of RJR-MacDonald Inc. vCanada (Attorney General), (SCC), [1994] 1 SCR 311 and Toth v Canada (Minister of Employment and Immigration),(1988) (FCA), 86 NR 302: 1. Is there a serious issue that ought to be tried in the underlying judicial review application? 2. Is there irreparable harm that will be sustained if the stay is not granted? 3. Does the balance of convenience favour the applicant?

Failing to meet any of the three branches of the test is fatal to an applicant. [3] This applicant is a 38 year old Nigerian who arrived in Canada on November 27, 2013. She made a refugee protection claim onDecember 2, 2013. She gave birth to a child on February 25, 2014. The refugee protection claim was dismissed on July 22, 2014, thedeterminative issue being the lack of credibility of the applicant. The appeal before the Refugee Appeal Division was also dismissed(December 16, 2014). Leave was denied by this Court on May 27, 2015.

There was a pre-removal risk assessment on July 27, 2018,which resulted in a negative decision on October 28, 2019. At least since that date, the applicant knows that she it is likely she will beremoved from Canada if she does not depart by herself. Ms. Agban has currently pending an “H & C application” since January 24,2019. [4] With regard to the serious issue to be tried, it does no suffice that the issue be merely not vexatious and frivolous. Rather, anapplicant faces a heightened test.

Since Wang v Canada (MCI), 2001 FCT 148, [2001] 3 FC 682 “(i)t is that the test of serious issuebecomes the likelihood of success on the underlying application since granting the relief sought in the interlocutory application will givethe applicant the relief sought in the application for judicial review” (para 12). The case of Baron v Canada (Minister of Public Safetyand Emergency Preparedness), 2009 FCA 81, [2010] 2 FCR 311 not only endorses fully the Wang decision, but it adds to the analysisand is binding on this Court.

One can read 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) Furthermore, because the standard on judicial review is the reasonableness of the decision of the deferral officer, the underlying judicialreview application, quite a strong case must be presented in order to satisfy the “serious issue” prong of the test. [5] The applicant raised three matters concerning the deferral of the removal that ought to be considered: the existence of an H & Capplication, the best interests of the child and the risks facing the applicant upon her return to Nigeria.

H & C application [6] The decision in Baron is a complete response to the argument that a deferral had to be granted because of the pending H & Capplication. One reads at paragraph 49 and 50 of Baron:

[49] It is trite law that an enforcement officer’s discretion to defer removal is limited. I expressed that opinion in Simoes v. Canada (M.C.I.), (FC), [2000] F.C.J. No. 936 (T.D.) (QL),7 Imm.L.R. (3d) 141, at paragraph 12: In my opinion, the discretion that a removal officer may exercise is very limited, and in any case, is restricted to when a removal orderwill be executed.

In deciding when it is "reasonably practicable" for a removal order to be executed, a removal officer may considervarious factors such as illness, other impediments to travelling, and pending H & C applications that were brought on a timely basis buthave yet to be resolved due to backlogs in the system. For instance, in this case, the removal of the Applicant scheduled for May 10, 2000was deferred due to medical reasons, and was rescheduled for May 31, 2000.

Furthermore, in my view, it was within the removalofficer’s discretion to defer removal until the Applicant’s eight-year old child terminated her school year. [50] I further opined that the mere existence of an H&C application did not constitute a bar to the execution of a valid removal order.With respect to the presence of Canadian-born children, I took the view that an enforcement officer was not required to undertake asubstantive review of the children’s best interests before executing a removal order. There is not on this record “quite a strong case” that the deferral officer’s decision could be unreasonable.

In Baron, the Court of Appealfound at para 51: In order to respect the policy of the Act which imposes a positive obligation on the Minister, while allowing for some discretion withrespect to the timing of a removal, deferral should be reserved for those applications where failure to defer will expose the applicant tothe risk of death, extreme sanction or inhumane treatment. With respect to H&C applications, absent special considerations, suchapplications will not justify deferral unless based upon a threat to personal safety. (emphasis in the original) There are no such special considerations in this case.

Indeed the jurisprudence cited by the applicant refers to the imminence of adecision on an H & C application. Nothing appears imminent in this cas [7] It is noteworthy that the pending H & C application is the second such application, the first one having been refused on November10, 2015, a fact that was not disclosed by the applicant. The strong case that the decision of the deferral officer is unreasonable has notbeen made out. The best interests of the child [8] The applicant has conceded that the issue of the best interests of the child is not a determinative issue (factum, para 12).

That was afit concession to make. [9] In effect, the applicant claims that her removal should be deferred until the end of the school year. There is no doubt that this is aconsideration that ought to be examined by a deferral officer. And it was.

He found that the 5 year old child is in kindergarten, which isnot considered a formative year of schooling, and that there is insufficient information supplied by the applicant to demonstrate that notcompleting a year in kindergarten in Canada would adversely affect her education in Nigeria. [10] In her affidavit of November 21, 2019, the applicant declares that “(i)f I am forced to return to Nigeria, J’Dari would nave nochoice but to go with me as she is too young to remain in Canada unsupervised and her father plays no role in her upbringing” (para 14).Otherwise, concedes the mother, arrangements would have had to have been made because a child of that age cannot, obviously, be leftalone.

Clearly this constitutes the better solution. The deferral officer also concluded that this is a course of action that would beappropriate and the Court cannot see where the serious issue is, such that the deferral officer’s decision could be set aside. Other risks [11] The applicant raises other issues having to do with her current psychological state. However, the evidence is less than sufficient togrant a stay of removal. [12] There is on this record two “assessments” which have been made, one dated November 8, 2019 and one dated January 10, 2019.

Asfor the latest one, it comes from a social worker who took the reporting by the applicant as “being depressed, anxious and fatigue”, and,using self-report psychological tests, concluded as follows: “A plan of medical and therapeutic care could be put in place if Ms. Agban can remain in Canada, which will involve medication,counselling and strategies to help cope with depression, anxiety, and trauma she is presently experiencing. Ms. Agban will benefitsignificantly from Cognitive Behavioural Therapy (CTB) and Eye movement Desensitization and Reprocessing (EMDR). Ms.

Agbanwas taught to practice progressive muscle relaxation and calm breathing to help her cope with her anxiety and depression.” [13] The first evaluation was conducted by a psychologist after a one-hour interview. He notes that the applicant has not received anymental-health treatment; he concluded that the applicant requires mental-health treatment as, following a one hour-interview, theapplicant “satisfies diagnostic criteria for major depressive disorder of moderate severity”. The treatment recommended is presented asstress management training, behavioral activation and cognitive behavioral therapy.

That could not justify granting a stay. [ 14 ] The Crown brings to the Court’s attention recent findings of this Court with respect to the same psychologist. [88] In my view, the overriding problem with the Report’s reliability is that it is founded entirely on Dr. Devins’ assessment of the Applicant’s answers to his questions, with some tangible reference to demeanour when responding. […] [113] All of the above excerpts represent impermissible overreach by Dr. Devins and are examples of advocacy on behalf of the Applicant. […] [118] In

summary, Dr. Devins could not have provided a more advantageous report in support of his lawyer’s implied instructions for “a psychological assessment to accompany her request to remain in Canada”. […] [121] It is fair to conclude that medical experts retained by counsel have had their way with little constraint in the content and nature of the medical and psychological reports filed in refugee matters. (Moffat v Canada (Citizenship and Immigration), 2019 FC 896 ) [ 15 ] It will suffice for our purposes to note that there has not been any follow-up on the recommendations.

One comes from a social worker while the other speaks in terms of behavioral and stress management training. This is far removed from “quite a strong case” in order to challenge the decision of the deferral officer who utilized his discretion not to defer the removal on such basis. The applicant says at paragraph 57 of her factum that “it is unreasonable to deny a short deferral of removal to June 2019, so that the applicant can continue her medical treatment…” Firstly, there is no continuation of a treatment that never began.

Secondly, the applicant states that the deferral officer is unreasonable without ever proving it or articulating how it is unreasonable. Bald assertions cannot succeed in a challenge to the exercise of discretion. Indeed, there is no evidence as to why such “treatment” would have to take place in Canada. Wishing to start the treatment does not prevent someone from doing so in her country of nationality. [ 16 ] Given that there is no serious issue raised that the limited discretion to postpone removal from Canada was unreasonably exercised, the motion for a stay of that removal must be dismissed.

There is no need to address the two other prongs of the tripartite test. I would simply observe that for irreparable harm to be shown, there is a requirement, through clear and convincing evidence, that it exists. It may very well be that the statement of the law in Stoney First Nation v.

Shotclose , 2011 FCA 232 , at para 48 , applies in this case: It is all too easy for those seeking a stay in a case like this to enumerate problems, call them serious, and then, when describing the harm that might result, to use broad, expressive terms that essentially just assert – not demonstrate to the Court’s satisfaction – that the harm is irreparable. ORDER in IMM-7069-19 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-5069-19 STYLE OF CAUSE: JOYCE ONOSE AGBAN v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: BY teleconference between OTTAWA AND TORONTO, ONTARIO DATE OF HEARING: NOVEMBER 23, 2019 ORDER AND REASONS: ROY J. DATED: NOVEMBER 24, 2019 APPEARANCES :

Ian G. Mason For The Applicant Aleksandra Lipska For The Respondent SOLICITORS OF RECORD : Lewis & associates Barristers & Solicitors Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent