ALEX BACIU Applicant v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2020 FC 7

Date: 20200103 Dockets: IMM-7142-19 IMM-7143-19 Citation: 2020 FC 7 Ottawa, Ontario, January 3, 2020 PRESENT: Mr. Justice Sébastien Grammond Docket: IMM-7142-19 BETWEEN: ALEX BACIU Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent Docket: IMM-7143-19 AND BETWEEN: CARLA GAVIOTA BACIU Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent ORDER AND REASONS [ 1 ] Mr. and Ms. Baciu seek a stay of their removal to Romania, which is scheduled for January 6, 2020.

I am dismissing their motion, as a review of all relevant considerations favours allowing the respondent to enforce the law immediately. [ 2 ] This motion raises issues that are more complex than usual. As all motions for stay of removal, however, it must be decided on an urgent basis and without a complete evidentiary record. In those circumstances, the Court strives to do as best as it can. I. Background [ 3 ] Mr. and Ms. Baciu are Romanian citizens of Roma ethnicity. They landed at Pierre Elliott Trudeau airport on October 20, 2019 and claimed asylum.

They were asked to return to the airport for a further interview on November 7, 2019, which they did. On that date, they were detained, because the Canada Border Services Agency [CBSA] had discovered that they both had been convicted of theft in the United States. [ 4 ] While still in detention, they were brought back to the airport for a further interview on November 11, 2019. During that interview, they signed forms to the effect that they voluntarily withdrew their asylum claims and a declaration to the effect that they would not be in danger if they returned to Romania.

As a result, an exclusion order was made against them. [ 5 ] The next day, they were brought before the Immigration Division [ID] of the Immigration and Refugee Board for a review of their detention. On that occasion, they stated that they did not really want to withdraw their claim, that the CBSA officers pressured them into doing so and that they were denied the possibility of contacting a lawyer or a family member. They reiterated these allegations in an affidavit filed in support of this application. [ 6 ] On December 3, Mr. and Ms. Baciu filed applications for a pre-removal risk assessment [PRRA].

The grounds for their applications consisted of one handwritten paragraph each. Mr. Baciu alleged that his life was in danger in Romania as a result of violence and racism against Roma. He mentions one incident during which Romanian boys beat him. Ms. Baciu alleged that she received threats from the family of a Romanian boy whom she did not want to date. On December 19, their PRRA application was denied.

The PRRA officer found that the Bacius had provided insufficient evidence to support their allegations and that they had not rebutted the presumption of state protection. [ 7 ] Meanwhile, on November 26, Mr. and Ms. Baciu filed an application for leave and judicial review of the exclusion order and then sought interlocutory relief quashing the exclusion order. It is not necessary to give a detailed account of the communications between their counsel and the registry office during the following weeks.

Suffice it to say that counsel for the Bacius repeatedly sought to have a motion heard before any date for removal was set. The directives given by several members of the Court were to the effect that the proper procedure to obtain interlocutory relief was to file a motion for stay of removal once a removal date is set.

When the respondent confirmed that the Bacius’ removal would take place on January 6, 2020, I directed that the motion for stay of removal be heard on January 3. [ 8 ] In spite of this, there was considerable confusion at the hearing of this motion, as counsel for the Bacius expected the Court to render a decision on the underlying application. I had to explain again the proper procedure. Counsel was then able to put forward his clients’ case for obtaining a stay of their removal.

II. Analysis [9] Motions for stay of removal are decided on the basis of the well-known three-part test for interlocutory injunctions: RJR –Macdonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR 311 [RJR], and R v Canadian Broadcasting Corp,2018 SCC 5, [2018] 1 SCR 196.

The Court must determine whether: (1) the applicant has shown that the underlying application raises aserious issue; (2) the applicant will suffer irreparable harm if the stay is not granted; and (3) whether the balance of convenience favoursthe applicant. [10] As it is grounded in equity, the application of this test is flexible and contextual and the overarching goal is to “do justice asbetween the parties:” Surmanidze v Canada (Public Safety and Emergency Preparedness), 2019 FC 1615 at paragraphs 28 and 35[Surmanidze].

This means that the test should not be viewed as a flowchart or computer algorithm in which questions can only beanswered in a binary manner and the result flows mechanically: Mosaic Potash Esterhazy Limited Partnership v Potash Corporation ofSaskatchewan Inc, 2011 SKCA 120 at paragraph 26. The Court must weigh all the relevant factors in favour or against the granting ofinterlocutory relief, and the RJR test is meant to guide the Court in that process. A. Serious Issue [11] The Bacius cannot be removed from Canada if their claim for asylum is still being processed.

This is why their case on the meritsentirely hinges upon the validity of the withdrawal of their claims. [12] In this regard, they argue that the withdrawal is invalid because it was obtained through pressure exerted by CBSA officials andwithout the advice of a lawyer. On the other hand, the respondent says that the Bacius were given the opportunity to contact a lawyer,but declined to do so, and that the withdrawal was entirely voluntary. [13] It is difficult to reach any firm conclusion on this issue in the absence of a more complete evidentiary record. The CBSA officersinvolved did not provide an affidavit.

The GCMS notes on which the respondent relies indicate that the Bacius were informed of theirright to counsel after they signed the withdrawal, not before. When testifying before the ID, however, it appears that Mr. Baciurecognized that he was given the opportunity, at some unspecified point in time, to speak to a family member or lawyer. [14] Serious issue is a relatively low threshold: RJR at 337. At this stage, I am prepared to find that the Bacius have raised a seriousissue.

However, I will give limited weight to this factor, as the limited evidence before me could be compatible with a number ofinterpretations, including the possibility that the Bacius simply regret their decision to withdraw their claims for asylum. B. Irreparable Harm [15] Interlocutory relief is granted to prevent some irreparable harm from happening before the merits of the underlying application canbe decided. The Bacius argue that they are at risk in Romania because of their Roma ethnicity.

They rely on my decision in Calin vCanada (Citizenship and Immigration), 2018 FC 707 [Calin], in which I reviewed recent objective evidence about the treatment of Romain Romania, including cases of abuse by the police and other public authorities. [16] Calin, however, was a case in which the risk to which the applicants would be exposed upon returning to Romania had never beenassessed. To the contrary, the Bacius have had the benefit of a PRRA. [17] One might say that the Bacius’ PRRA decision is flawed in certain respects.

For example, the finding of state protection may behard to reconcile with the objective evidence I reviewed in Calin. But this is a case where the output is commensurate with the input.The Bacius’ applications consisted of one paragraph each. Even though they were given time to do so, they did not file supportingmaterials or submissions. I note that, by that time, they were represented by a lawyer. [18] Moreover, on November 11, Mr.

Baciu signed a declaration to the effect that it would not be dangerous for him to return toRomania, which contradicts his PRRA application. [19] To summarize, while I recognize that Roma may be exposed to irreparable harm if removed to Romania, it appears that the Baciusdid not take this risk very seriously. Thus, I will not give strong weight to this factor. [20] The Bacius also argue that their removal from Canada would, in practice, render their underlying application moot. I appreciate thatif they are removed, they would have little reason to pursue their application on the merits.

However, in immigration matters, the factthat an application would become moot is not considered, in and of itself, as irreparable harm: Canada (Public Safety and EmergencyPreparedness) v Shpati, 2011 FCA 286 at paragraphs 34 and 35, [2012] 2 FCR 133. Rather, actual harm must be proven on a case-by-case basis. C. Balance of Convenience [21] This brings me to the last prong of the RJR test, the balance of convenience. This is where the Court must assess and weigh allrelevant considerations and make a decision. [22] As I have mentioned above, the Bacius have put forward a weak case.

The issue they raise regarding the voluntary character of thewithdrawal of their claim for asylum is serious, in the sense that it is not frivolous, but it is far from certain that they would prevail on themerits. Even though I do not wish to trivialize the difficult situation facing Roma in Romania, the Bacius did not take seriously theopportunity they had to explain the irreparable harm that would flow from their removal to Romania.

[ 23 ] On the other side of the scale is the respondent’s duty to enforce the law and to remove diligently persons who are not entitled to remain in Canada. As my colleague Justice William F. Pentney stated, “ this is not merely a matter of administrative convenience, it goes to the wider public interest in ensuring confidence in the integrity of the immigration program as a whole: ” Surmanidze , at paragraph 56 . [ 24 ] Counsel for the respondent also argued that the Bacius did not come to the Court with “clean hands,” given their criminal records.

However, a criminal record is not an absolute bar to obtaining a stay of removal. In this case, the Bacius have been found guilty of relatively light, non-violent offences. [ 25 ] Nevertheless, I am concerned by the fact that Mr. Baciu has used false identities while in the United States. CBSA also obtained information to the effect that he was wanted in Romania and that he had been summoned to appear in court in November of last year. Thus, his coming to Canada appears to be calculated to evade Romanian authorities.

This shows a general pattern of trying to evade the law, which does not favour the granting of a stay of removal. [ 26 ] Overall, I find that the factors favouring removal weigh heavier than the factors favouring the granting of a stay. Accordingly, the motion for a stay of removal will be dismissed. ORDER in files IMM-7142-19 and IMM-7143-19 THIS COURT ORDERS that : 1.

The motion for a stay of the applicants’ removal to Romania is dismissed. “Sébastien Grammond” Judge FEDERAL COURT SOLICITORS OF RECORD Dockets: IMM-7142-19 AND IMM-7143-19 STYLE OF CAUSE: ALEX BACIU v THE MINISTER OF CITIZENSHIP AND IMMIGRATION STYLE OF CAUSE: CARLA GAVIOTA BACIU v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: January 3, 2020 ORDER AND REASONS: GRAMMOND J.

DATED: January 3, 2020 APPEARANCES : Saïd Le Ber-Assiani FOR THE APPLICANTS Chantal Chatmajian For The Respondent SOLICITORS OF RECORD : Ferdoussi Hasa Attorneys Montréal, Quebec FOR THE APPLICANTS Attorney General of Canada Ottawa, Ontario For The Respondent