DALWINDER SINGH Applicant v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, 2023 FC 523

Date: 20230412 Docket: IMM-7132-22 Citation: 2023 FC 523 Ottawa, Ontario, April 12, 2023 PRESENT: Mr. Justice Norris BETWEEN: DALWINDER SINGH Applicant and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent ORDER AND REASONS I. OVERVIEW [ 1 ] The applicant, a citizen of India, seeks refugee protection in Canada. His claim was rejected by the Refugee Protection Division (“RPD”) of the Immigration and Refugee Board of Canada (“IRB”) on February 18, 2022, because it found his allegations were not credible. The applicant appealed this decision to the Refugee Appeal Division (“RAD”) of the IRB.

In a decision dated June 28, 2022, the RAD dismissed the appeal and confirmed the determination of the RPD that the applicant is not a Convention refugee or a person in need of protection. [ 2 ] The applicant has applied for leave for judicial review of the RAD’s decision under subsection 72(1) of the Immigration and Refugee Protection Act , SC 2001, c 27 (“ IRPA ”). He now seeks an order staying his removal from Canada until this application has been disposed of by this Court.

He seeks this relief either under subsection 231(1) of the Immigration and Refugee Protection Regulations , SOR/2002- 227 (“ IRPR ”) or, in the alternative, under

section 18.2 of the Federal Courts Act , RSC 1985, c F-7 (“ FCA ”). [ 3 ] As I will explain in the reasons that follow, I have concluded that this motion must be dismissed. [ 4 ] Briefly, if the applicant were entitled to a stay of removal under subsection 231(1) of the IRPR , an Order of this Court would not be necessary. Subject to other exceptions that do not apply here, the stay would take effect automatically by operation of law upon the filing of his application for leave and judicial review in accordance with

section 72 of the IRPA . However, the applicant is not entitled to an automatic stay of removal because his application for leave for judicial review was filed late. Subsection 231(4) states that subsection 231(1) " “does not apply” " if the person applies for an extension of time to file the application for leave for judicial review. The applicant is such a person. In these circumstances, his only recourse is a discretionary stay of removal under

section 18.2 of the FCA . However, the applicant has not met the three-part test for a stay of removal because he has failed to establish that he would suffer irreparable harm if a stay is not ordered. II. BACKGROUND [ 5 ] The applicant was born in Fatehpur, a village in Punjab, India, in April 1998. [ 6 ] After entering Canada on a work permit, the applicant submitted an application for refugee protection on August 3, 2019. [ 7 ] According to the applicant, he is at risk in India because he entered into a clandestine romantic relationship with a neighbour’s daughter.

She is a member of the Mazhabi community and belongs to a lower caste than the applicant. When the relationship was discovered in or around February 2019, the applicant was threatened with harm by his girlfriend’s father and by other members of the Mazhabi community. The applicant fled his home and hid with a maternal uncle in a nearby village. The applicant then fled to Delhi after several men visited the uncle’s home looking for him. With the assistance of a smuggler, in May 2019 the applicant obtained a work permit for Canada as a singer.

He arrived in Toronto on June 7, 2019. [ 8 ] As I have noted, the RPD rejected the applicant’s claim on credibility grounds. The RAD dismissed the applicant’s appeal and confirmed the RPD’s determination. As did the RPD, the RAD concluded that the applicant was not credible with respect to the allegations that form the basis of his claim for protection. [ 9 ] On July 27, 2022, with the assistance of his former lawyer, the applicant filed a Notice of Application for Judicial Review challenging the RAD’s decision. However, the notice was filed late.

The RAD’s written decision had been sent to the applicant by regular mail on June 30, 2022. Under paragraph 72(2)(

b) of the IRPA , and having regard to Rule 35(2) of the Refugee Appeal Division Rules , SOR/2012-257 , the applicant’s notice should have been served and filed no later than July 15, 2022. Evidence before me on this motion establishes that the applicant had retained his former lawyer prior to that date. [ 10 ] As provided for by Rule 6(1) of the Federal Courts Citizenship, Immigration and Refugee Protection Rules , SOR/93-22 (“ FCCIRPR ”), the applicant’s notice included a request for an extension of time under paragraph 72(2) (

c) of the IRPA . The sole explanation offered for why the application was filed late was that the applicant’s lawyer had erred in calculating the date by which the

notice was due. [11] The applicant perfected his application for leave and for judicial review on August 17, 2022. The respondent’s record was filed onSeptember 16, 2022. The applicant did not file a reply. While the respondent opposes the application for leave, the respondent does notoppose the request for an extension of time. The application for leave is still pending before the Court.

In accordance with Rule 6(2) ofthe FCCIRPR, the request for an extension of time will be determined at the same time as the application for leave. [12] The present motion came before the Court in a somewhat unusual manner. [13] On November 22, 2022, the applicant was directed to report for removal from Canada on January 18, 2023. [14] On November 24, 2022, with the assistance of a new lawyer, the applicant requested a stay of removal from the Canada BorderServices Agency (“CBSA”). Quite properly, the Inland Enforcement Officer assigned to the matter treated the request as a request for adeferral of removal.

The sole ground advanced in support of the request was that, since the applicant had applied for judicial review ofthe RAD’s decision and a decision on that application was still pending, he was entitled to a stay of removal under subsection 231(1) ofthe IRPR. [15] In a decision dated December 21, 2022, the Inland Enforcement Officer determined that, because the notice of application wasserved and filed out of time and an extension of time was therefore required, pursuant to subsection 231(4) of the IRPR, the applicantwas not entitled to a stay of removal under subsection 231(1).

In the absence of any other reason being advanced for deferring theapplicant’s removal, the officer refused the request. [16] The applicant applied for judicial review of the negative deferral decision (Court File No. IMM-12654-22). He also sought an orderstaying his removal from Canada pending the final determination of that application. [17] That motion for a stay came before me for a hearing on January 17, 2023.

I explained at the outset of the hearing that I wasconcerned that there was a risk of an injustice because the applicant was facing imminent removal from Canada, as presented his motionfor a stay of removal appeared hopeless because there did not appear to be any merit to the application for judicial review of the negativedeferral decision, and there was a potentially more promising avenue for seeking the same relief that the applicant had not pursued –namely, a motion for a stay of his removal pending the final disposition of his application for judicial review of the negative RADdecision.

This latter avenue is available to individuals like the applicant who are not entitled to the benefit of a statutory stay of removal:see Toth v Canada (Employment and Immigration) (1988), (FCA), 86 NR 302 (FCA) at para 2; see also Kreishan vCanada (Citizenship and Immigration), 2019 FCA 223 at para 25; and Gerald v Canada (Citizenship and Immigration), (FC). [18] After hearing from the parties, I concluded that it was in the interests of justice to grant an interim stay of the applicant’s removal inconnection with IMM-12654-22 in order to provide the applicant with an opportunity to seek a stay of removal in connection with hisapplication for judicial review of the negative RAD decision: see Singh v Canada (Public Safety and Emergency Preparedness), 2023FC 76. [19] After the parties filed their respective records, the present motion came before me for a hearing on April 4, 2023.

III. ANALYSIS A. Is the applicant entitled to a stay of removal under IRPR subsection 231(1)? [20] Subsection 231(1) of the IRPR provides that, subject to certain exceptions that do not apply here, a removal order is stayed if thesubject of the order makes an application for leave and for judicial review in accordance with

section 72 of the IRPA with respect to adecision of the RAD that rejects, or confirms the rejection of, a claim for refugee protection. The stay is effective until the matter isfinally disposed of by this Court, the Federal Court of Appeal, or the Supreme Court of Canada, as the case may be. [21] The applicant contends that he is entitled to a stay of removal under subsection 231(1) of the IRPR because he has made anapplication for judicial review in accordance with

section 72 of the IRPA of the RAD’s decision confirming the rejection of his claim forrefugee protection. [22] I cannot agree. As set out above, while the applicant has brought an application for judicial review in accordance with

section 72 ofthe IRPA, that application was commenced out of time and an extension of time pursuant to paragraph 72(2)(

c) is therefore required.Subsection 231(4) of the IRPR states that subsection 231(1) "“does not apply”" if the person in question applies for an extension of timeto file an application for judicial review. Since the applicant is such a person, he is expressly excluded from being eligible for a stayunder subsection 231(1) of the IRPR: see Touré c Canada (Citoyenneté et Immigration), 2020 CF 6 at para 3; Farhan v Canada(Citizenship and Immigration), (FC); Gerald; and Singh v Canada (Citizenship and Immigration), (FC). (Toth, mentioned above, held that late-filed applications were implicitly excluded from the scope of a similar statutory stayof removal provided for by paragraph 51(1)(

c) of the Immigration Act, SC 1976-77, c 52.) [23] The applicant submits that subsection 231(4) should not apply to him since it was his former counsel’s error that put him in theposition of requiring an extension of time. Once again, I am unable to agree. Subsection 231(4) does not contemplate drawingdistinctions between cases based on why an extension of time is required. The provision is clear and unambiguous: no one who requiresan extension of time is entitled to an automatic stay of removal.

The Court has no residual discretion to extend the benefit of an automaticstay to an applicant who, even through no fault of their own, failed to commence their application for judicial review within time. Theapplicant relies on a principle of fairness stated in Bowen v City of Montreal, (SCC), [1979] 1 SCR 511 at 519 ("“a partymust not be deprived of his rights on account of an error of counsel where it is possible to rectify the consequences of such error withoutinjustice to the opposing party”") but this principle cannot authorize this Court to ignore a statutory provision.

[24] Thus, if, as they have done, the CBSA decides to enforce the applicant’s removal while the leave application is still pending,subsection 231(1) of the IRPR does not protect the applicant from removal. [25] As I have already stated, the applicant is not without an alternative means for obtaining the relief he seeks. He is entitled to seek adiscretionary stay of his removal under

section 18.2 of the FCA pending the final determination of the application for judicial review ofthe negative RAD decision (as he has also now done). Although this means having to satisfy the three-part test for a stay (see below) asopposed to being entitled to a stay as of right – and in this respect is less advantageous for the applicant than subsection 231(1) of theIRPR – it is the statutory scheme that Parliament adopted. [26] Before leaving this point, it is worth underscoring that the disadvantage faced by someone in the applicant’s position is notnecessarily as significant as it might first appear to be. This is because a decision to grant or refuse relief under

section 18.2 of the FCA isa discretionary one that must be made having regard to all the relevant circumstances (R v Canadian Broadcasting Corp, 2018 SCC 5 atpara 27). As the Supreme Court has stated, "“The fundamental question is whether the granting of an injunction is just and equitable inall of the circumstances of the case.

This will necessarily be context-specific”" (Google Inc v Equustek Solutions Inc, 2017 SCC 34 atpara 25). [27] Where the moving party is not entitled to an automatic stay because an extension of time is required, the "“circumstances of thecase”" will include the reason the notice was not served and filed within time, the length of an extension of time that is required, andwhether the request for an extension of time is opposed by the respondent.

When, as in the present case, the moving party is not entitledto an automatic stay due to a mistake by counsel, the ensuing delay is relatively short, and the respondent does not oppose an extensionof time, these can be important considerations to bear in mind when determining under the third part of the test whether the balance ofconvenience favours granting or refusing the stay. In such circumstances, and other things being equal, it seems unlikely that the balanceof convenience would weigh heavily, if at all, in the Minister’s favour.

While this cannot overcome a failure by the moving party to meetone or both of the other parts of the test, strengths with respect to this factor can compensate for weaknesses with respect to others andlead to a favourable outcome for the moving party. As has often been emphasized, the test for a stay should be applied in a holisticfashion.

While each part of the test is important, and all three must be met, they are not discrete, watertight compartments: see Wasylynukv Canada (Royal Mounted Police), 2020 FC 962 at para 135; Spencer v Canada (Attorney General), 2021 FC 361 at para 51; and PowerWorkers Union v Canada (Attorney General), 2022 FC 73 at para 56. B. Is the applicant entitled to a stay of removal under FCA

section 18.2? [28] To be entitled to a stay of removal under

section 18.2 of the FCA, the applicant must demonstrate three things: (1) that theapplication for judicial review raises a "“serious question to be tried;”" (2) that he will suffer irreparable harm if a stay is refused; and (3)that the balance of convenience (i.e. the assessment of which party would suffer greater harm from the granting or refusal of the staypending a decision on the merits) favours granting the stay: see Toth at para 6; Canadian Broadcasting Corp at para 12; Manitoba(Attorney General) v Metropolitan Stores Ltd, (SCC), [1987] 1 SCR 110; and RJR-MacDonald Inc v Canada (AttorneyGeneral), (SCC), [1994] 1 SCR 311 at 334.

As I have already noted, the applicant must meet all three parts of the testto be entitled to a stay of removal. [29] In the present context, the threshold for establishing a serious question to be tried under the first part of the test is a low one.

Theapplicant only needs to show that at least one of the grounds raised in the underlying application for judicial review is not frivolous orvexatious (RJR-MacDonald at 335 and 337; see also Gateway City Church v Canada (National Revenue), 2013 FCA 126 at para 11 andGlooscap Heritage Society v Canada (National Revenue), 2012 FCA 255 at para 25). [30] In the underlying application, the applicant submits that the RAD fell into reviewable error in two respects: first, by failing toevaluate his evidence in light of relevant cultural norms and traditions; and second, in finding that photographs showing the applicant andhis girlfriend together in public settings were inconsistent with the applicant’s claim that they had kept their relationship a secret. [31] While the grounds for review advanced by the applicant do not appear strong, I am satisfied that they meet the very low threshold ofnot being frivolous or vexatious. [32] In my view, it is the second part of the test that is determinative. [33] I pause at this point to note that there is no issue of prematurity here.

As I have already mentioned, the CBSA began to take action toenforce the applicant’s removal last November. Given the interim order made in IMM-12654-22, that agency has not taken any furtherenforcement action against the applicant at this time.

However, in view of the steps it took last November, it is reasonable to expect that,if the applicant does not secure a stay of his removal, the CBSA will resume enforcement action against him in the near future. [34] Under the second part of the test, the applicant relies on two forms of irreparable harm: first, the risk he claims he faces if he isrequired to return to India; and second, the impact on his wife of being separated from the applicant, including disruption to her studies inCanada. [35] As presented on this motion, the first form of irreparable harm is the very same risk that the applicant alleged in his claim forrefugee protection.

He has not provided any new evidence of continuing interest in him by his alleged agents of persecution since theRAD dismissed the appeal on June 28, 2022. Indeed, there is no evidence that they have had any interest in the applicant since shortlyafter he left India nearly four years ago.

Nor has the applicant presented any evidence of any other harm he would be at risk of sufferingif he were to be removed to India. [36] In a case such as this, where the risk considered in the decision under review is now posited as the irreparable harm that is likely toresult from removal, there is a significant overlap between the first two parts of the test for a stay (Gill v Canada (Public Safety andEmergency Preparedness), 2020 FC 1075 at para 22). This overlap can cut both ways.

On the one hand, if persuaded that there is aserious flaw in the RAD’s decision, the Court can be expected to give much less weight, if any, to that determination in its assessment ofirreparable harm. On the other hand, in the absence of any serious flaws in the RAD’s determination, the Court may be persuaded that

the RAD’s conclusion deserve some weight – perhaps even significant weight – in its own independent assessment of irreparable harm.This can especially be the case when no new evidence relating to risk has been provided. [37] On motion to stay removal from Canada, the Court should act as a safety valve to ensure that removal does not occur in the face of aflawed assessment of risk by an administrative decision maker tasked with making this assessment (Abu Aldabat v Canada (Citizenshipand Immigration), 2021 FC 277 at para 18).

Equally, however, a stay motion is not meant to be an opportunity to reargue risks that havebeen adequately assessed by previous decision makers (Abu Aldabat at para 35). [38] To establish irreparable harm, the applicant must show that there is "“real, definite, unavoidable harm – not hypothetical andspeculative harm”" (Janssen Inc v Abbvie Corporation, 2014 FCA 112 at para 24). He must adduce clear and non-speculative evidencethat irreparable harm will follow if the stay is refused. Unsubstantiated assertions of harm will not suffice.

Instead, "“there must beevidence at a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result”" unlessthe stay is granted (Glooscap Heritage Society at para 31). As I have stated elsewhere, in my view, particularly as applied to apprehendedfuture harms, the idea of a "“real probability”" of harm is fundamentally a qualitative as opposed to a quantitative assessment.

The harmthat is relied on certainly cannot be merely hypothetical or speculative but at the same time it is unrealistic to demand evidenceestablishing a precise level of risk when the harm to which the relief is directed will only occur in the future, if at all: see Singh v Canada(Citizenship and Immigration), 2021 FC 846 at para 29. [39] In the present case, both the RPD and the RAD found that the applicant’s allegations were not supported by credible evidence.While I am certainly not bound by the RAD’s findings and must make my own determination concerning the risks faced by the applicantin India, I have not been persuaded that I should reach a different conclusion than the RAD (or the RPD, for that matter).

I am satisfiedthat evidence on which the applicant relied in his refugee claim (which is the same evidence on which he now relies to establishirreparable harm) was properly assessed by the RAD. The RAD provided detailed reasons why it did not find the applicant to becredible. The applicant has not identified any grounds for review that raise serious concerns about the soundness of the RAD’s findingsor its ultimate conclusion. Nor has he presented any new evidence that calls the continuing validity of the RAD’s determination intoquestion.

In short, the applicant has not established with persuasive evidence or cogent argument that, if he is removed from Canada,there is a real probability that he will suffer irreparable harm in India. [40] With respect to the second form of irreparable harm the applicant relies on (the harm that will be suffered by his wife if he isremoved), the respondent contends that this does not come within the scope of the test for a stay because the harm must be to theapplicant’s own interests and not those of a third-party (citing RJR-MacDonald at 341).

I am prepared to assume for the sake of argumentthat, by virtue of their spousal relationship, any harm suffered by the applicant’s wife would also adversely affect the applicant’sinterests. Even doing so, however, the harm the applicant alleges does not transcend that which is inherent in deportation itself.

This isinsufficient to constitute irreparable harm for the purpose of the test for a stay of removal (Palka v Canada (Public Safety andEmergency Preparedness), 2008 FCA 165 at para 12; Melo v Canada (Citizenship and Immigration), , 188 FTR 39 atpara 21). [41] For these reasons, I find that the applicant has failed to meet the second part of the test for a stay. [42] Since this is a sufficient basis on which to dismiss the motion, it is not necessary to consider the balance of convenience. IV.

CONCLUSION [43] For these reasons, the motion for a stay of removal is dismissed. [44] Finally, for the sake of greater certainty, with the final determination of this motion, the interim stay ordered in IMM-12654-22 nowcomes to an end. ORDER IN IMM-7132-22 THIS COURT ORDERS that 1. The motion for a stay of removal is dismissed. “John Norris” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-7132-22

STYLE OF CAUSE: DALWINDER SINGH v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: HELD BY VIDEOCONFERENCE DATE OF HEARING: APRIL 4, 2023 ORDER AND REASONS: NORRIS J. DATED: April 12, 2023 APPEARANCES : Harsimran Makkar For The Applicant Nadine Silverman For The Respondent SOLICITORS OF RECORD : Harsimran Makkar Law Professional Corporation Brampton, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent