2019 FC, 2019 FC 1603

Date: 20191213 Docket: IMM-7404-19 Citation: 2019 FC 1603 Toronto, Ontario, December 13, 2019 PRESENT: Mr. Justice Pentney BETWEEN: JUAN MARCOS GOMEZ GARCIA Applicant and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent ORDER AND REASONS [ 1 ] The Applicant seeks a stay of his removal to Mexico, which is scheduled for December 14, 2019. [ 2 ] This is the second stay application on behalf of the Applicant.

As will be explained in more detail below, the Applicant was previously scheduled to be removed from Canada on November 23, 2019, and he filed a motion to stay his removal on November 22, 2019. This was heard on an urgent basis by Justice Yvan Roy on November 23, 2019, who granted an interim stay for a period of two weeks, in order for a more complete record to be placed before the Court. [ 3 ] On December 7, 2019, the Applicant received a second notice advising that his removal to Mexico was scheduled for December 14, 2019.

He submitted an application for administrative deferral of this removal, but this was denied on December 9, 2019. [ 4 ] The Applicant filed an application for leave and judicial review, as well as a motion seeking a stay of removal, on December 11, 2019. The stay motion was heard on December 12, 2019. These are my reasons for refusing to grant the stay of removal. I. Context [ 5 ] The Applicant is a citizen of Mexico. He arrived in Canada in 2007 as a temporary resident. He made a refugee claim in 2009, which was denied in 2011.

The Applicant then applied for a Pre-Removal Risk Assessment, but he did not receive the results of that request because he had moved and did not advise immigration authorities of his new address. In fact, his PRRA was denied in 2012. [ 6 ] The Applicant was called in for a pre-removal interview by Canada Border Services Agency (CBSA) officials in March 2012, but did not attend. He says that he did not received this request, again because he had moved. A warrant was issued for the Applicant’s arrest. [ 7 ] In 2013, the Applicant started a relationship with a woman who is a Canadian citizen.

They lived in a common law relationship for several years, and their son was born in January 2014. They were married in May 2017, and are now expecting a second child. [ 8 ] In February 2018, the Applicant and his wife filed an in-Canada spousal sponsorship application. As will be described in more detail below, it appears that the spousal sponsorship application has been advancing through the process at Citizenship and Immigration Canada (CIC).

The next significant events are described in the Order of Roy J. at para 1: It appears that Canada Border Services Agency (CBSA) agents communicated with the applicant’s wife … claiming that they wished to verify if the applicant was living with the wife and their infant. The applicant is being sponsored by his wife in order to become a permanent resident of Canada and it would have been in that context that they understand the “demarche” of the government agents.

The sponsorship application is however managed by the Minister of Citizenship and Immigration (MCI) while the removal of aliens is the responsibility of the Minister of Public Safety and Emergency Preparedness. After a short interview, the officers indicated that “they were there to execute/enforce the warrant”… That was the arrest warrant issued on March 5, 2012. The applicant has been detained since. His removal is scheduled for tomorrow, November 23, 2019, at 23:35. [ 9 ] The Applicant sought an urgent stay of that removal order, and in the circumstances, Roy J. granted an interim stay for two weeks.

Among the reasons he gave for issuing the Order, Roy J. noted the following: [5] Not only was the arrest executed with the use of subterfuge, but also the applicant was served with a notification of removal set to occur on November 23, seven days later.

The mere fact that this applicant was treated that way, giving him very little time to react, is not conductive to appropriate deliberations in a matter where children are involved and as a sponsorship application is pending. [6] On the record before this Court, it is unknown what the reasons are for proceeding in this fashion, including the short period, after executing a warrant of arrest more than 7 years old, before the removal is to be executed and why it is alleged that the applicant is a flight risk… [ 10 ] As noted earlier, Roy J. granted an interim stay Order for a period of two weeks, to December 6, 2019.

The Applicant made a formal request to defer removal on December 7, 2019, but this was refused on December 9, 2019. The Applicant has sought leave to bring a judicial review application of that decision, and is seeking stay of his removal pending the determination of that application.

II. Issues [11] The only issue in this matter is: should a stay of removal be granted in these circumstances? III. Analysis [12] In considering whether to grant a stay of removal, this Court applies the same test as for interlocutory injunctions.

The SupremeCourt of Canada recently restated the test as follows: At the first stage, the application judge is to undertake a preliminary investigation of the merits to decide whether theapplicant demonstrates a “serious question to be tried”, in the sense that the application is neither frivolous nor vexatious.The applicant must then, at the second stage, convince the court that it will suffer irreparable harm if an injunction isrefused.

Finally, the third stage of the test requires an assessment of the balance of convenience, in order to identify the partywhich would suffer greater harm from the granting or refusal of the interlocutory injunction, pending a decision on themerits. (R v Canadian Broadcasting Corp, 2018 SCC 5 at para 12, references omitted) [13] This three-pronged test is well-known. It had been set out in earlier decisions of the Supreme Court: Manitoba (Attorney General)v Metropolitan Stores Ltd., (SCC), [1987] 1 SCR 110; RJR — MacDonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR 311.

It was also applied in the immigration context in Toth v Canada (Minister of Employment andImmigration), (1988) 86 N.R. 302, (FCA). Of course, the application of this test is highly contextual and fact-dependent. A. Serious Issue [14] In many cases, the serious issue branch of the test is not a high threshold.

However, in cases where the stay is requested following arefusal to defer removal, it has been found that a higher threshold applies, which requires the Applicant to demonstrate a “likelihood ofsuccess” or "“quite a strong case”" in regard to the underlying application for leave and judicial review (Wang v Canada (Minister ofCitizenship and Immigration), 2001 FCT 148, [2001] 3 FC 682; Baron v Canada (Minister of Public Safety and EmergencyPreparedness), 2009 FCA 81, [2010] 2 FCR 311 at para 67; Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA130 at para 43). [15] The Applicant bears the burden of demonstrating a serious issue in relation to the officer’s refusal to defer his removal.

This mustbe assessed in the context of the legal framework within which the officer made that decision. The relevant principles have recently beensummarized in a concise manner by Justice Walker, in Toney v. Canada (Public Safety and Emergency Preparedness), 2019 FC 1018, atpara 50: [50] The trio of Baron, Lewis and Forde establish the following: 1. An enforcement officer’s discretion to defer removal is very limited and, ultimately, an officer is required toenforce a removal order in accordance with subsection 48(2) of the IRPA (Baron at paras 51, 80: Lewis at para54; Forde at para 36); 2.

In the exercise of their discretion, an officer cannot defer removal to an indeterminate date (Baron at para 80:Forde at paras 36-37, 43); 3. An officer’s discretion is not only limited temporally but is also focused on serious, short-term issues relatingto the safety of an applicant, ability to travel, immediate medical issues, impending births and deaths and, in thecase of children, such considerations as finishing the school year, whether care has been arranged if they areremaining in Canada, or the need for special medical care in Canada (Baron at para 51: Lewis at paras 55, 83;Forde at para 36).

The often-quoted language from Baron (at para 50) which situates the tone of the inquiry isthat deferral should be reserved for those situations involving “the risk of death, extreme sanction or inhumanetreatment” to the applicant; 4. The existence of an outstanding H&C or spousal application in Canada is not a bar to removal absent specialconsiderations. Both the timeliness of filing and the imminence of any decision on the application are importantconsiderations for an officer (Baron at paras 51, 80: Lewis at paras 55-58, 80; Forde at paras 35-40).

As statedin Forde (at para 36), even “in such ‘special situations,’ as discussed below, there are important temporal limitson a removal officer’s discretion to defer removal”. [16] Here the deferral request was set out in a one-page letter which referred to the spousal sponsorship application, stating that the"“process is in an advanced stage”". The letter also indicates that the Applicant has a Canadian-born child and that his wife is pregnantwith their second child.

The letter states that deferral is in the "“best interest of the child(ren)”" but does not set out any informationregarding either the child or the pregnancy. [17] The Applicant submits that the officer’s decision is unreasonable because it does not take into consideration the advanced stage ofthe spousal sponsorship application, nor does it consider the impact of the Applicant’s removal on his pregnant wife or young son. Theevidence filed in support of the stay motion includes information regarding the wife’s concern about her pregnancy, and her fears oflosing the emotional and practical support of her husband.

It also indicates that their son is very close to his father, and has asthma and

allergies for which the father has regularly administered medicine to alleviate his symptoms. The wife describes her fears, and indicatesthat her son has been quite upset since his father’s arrest and detention. The Applicant submits that the officer’s decision does not giveadequate consideration to these factors. [18] In addition, the Applicant points to the advanced stage of the processing of the spousal sponsorship application. The application wasfiled in February 2018. The Applicant underwent a medical examination on December 17, 2018.

On July 25, 2019, the CIC CaseProcessing Centre informed his wife that she had met the requirements for eligibility as a sponsor. More recently, on December 10, 2019the wife contacted CIC to inquire about the status of the Applicant’s application and was informed that they are waiting for an updatedpolice check from Mexico. [19] The Applicant argues that the officer did not consider whether a deferral of his removal should be granted on the basis that thespousal sponsorship is so far advanced in the process.

Instead the officer simply noted that the spousal sponsorship application did notserve as a bar to removal and that the Applicant did not qualify for the administrative stay that is granted as a matter of policy, because itdoes not apply to cases – such as this one – where the spousal sponsorship is filed after the individual has been found to be "“removalready.”" [20] The Respondent submits that the Applicant has failed to establish a "“strong case”" against the officer’s decision.

The discretion ofthe officer is limited, and it was exercised in a reasonable manner here. [21] The decision notes the limited discretion available to defer removal, and then considers both the pending spousal sponsorshipapplication and the impact of removal on the wife as well as the best interests of the child. The officer notes that the Applicant does notbenefit from the public policy stay of removal under subsection 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27[IRPA] because his spousal sponsorship was submitted after he was deemed to be removal ready.

The officer states that the Applicantwas deemed to be removal ready in February 2012. The officer also finds that a spousal sponsorship application does not act as a bar toremoval, and that there was no information provided to show that the Applicant could not submit a spousal sponsorship after he wasremoved from Canada, or that the decision on the existing application was imminent. [22] In relation to the spouse and child, the officer noted that the Applicant’s removal would cause them distress and require a period ofadjustment.

The officer found that the wife would have access to the range of social programs available in Canada and that she wouldhave the care she requires during her pregnancy. The officer acknowledges that the separation of the family will be an emotionalsituation but finds that this is an inherent part of the removals process. [23] The Respondent points out that that the officer cannot be criticized for failing to take into account the information that was filed insupport of the stay application because that material was not placed before the officer.

The decision is reasonable in light of the contextfor the exercise of the officer’s limited discretion and the information that was provided by the Applicant. [24] I am not persuaded that the Applicant has met the high threshold for a “serious issue” in relation to the underlying judicial reviewapplication regarding the refusal to defer removal.

In this case, the officer did engage with the very limited information provided by theApplicant, and in doing so the officer followed the legal framework that guides the exercise of discretion to defer removal. [25] I agree with the Respondent that the officer cannot be faulted for not considering information that was never provided by theApplicant, and in particular the information about the state of the wife’s pregnancy, the medical condition of the son (asthma andallergies), or the impact of the Applicant’s detention and removal on the son. None of that information was submitted to the officer.

Wewill never know whether or not any of this might have affected the officer’s exercise of discretion (and I am not suggesting that it wouldor should have, given the limited nature of the information). But it is not unreasonable for the officer to base the decision on theinformation submitted by the Applicant. [26] In light of my conclusion on this issue, it is not necessary to address the other branches of the test in great detail, and so I will limitmyself to brief comments on each element. B.

Irreparable Harm [27] Irreparable harm refers to harm which cannot be compensated in money; it is the nature rather than the magnitude of the harmwhich is to be examined: R.J.R. MacDonald, at p. 135. In the context of a stay of removal, the harm usually relates to the risk to theindividual(

s) of harm upon removal from Canada. It may also include specific harms that are demonstrated in regard to any personsdirectly affected by the removal, and who will be remaining in Canada: Tesoro v. Canada (Minister of Citizenship and Immigration),2005 FCA 148. [28] I would make two comments about the Applicant’s arguments in this case. First, there is no evidence to support the claim that thereare specific, extraordinary or unusual harams that will befall the Applicant or his family because of his removal.

The harms are theunfortunate impact of the removal of a husband and father who has been living in Canada without legal status. As stated by Justice DenisPelletier in Melo v. Canada (Minister of Citizenship and Immigration), (FC ), at para 21: But if the phrase irreparable harm is to retain any meaning at all, it must refer to some prejudice beyond that which isinherent in the notion of deportation itself. To be deported is to lose your job, to be separated from familiar faces and places.It is accompanied by enforced separation and heartbreak. There is nothing in Mr.

Melo’s circumstances which takes it out ofthe usual consequences of deportation. [29] In addition, the law requires that irreparable harm be established based on evidence, not assertions or speculation: Atwal v Canada(Citizenship and Immigration), 2004 FCA 427. In this case, the Applicant’s submissions regarding irreparable harm rested largely onspeculation and went beyond what the evidence in the record showed. [30] I find, on the evidence, that the Applicant has not established irreparable harm associated with being returned to Mexico. There is

no question that being separated from his pregnant wife and young child will be a significant hardship for the Applicant, and for his wifeand child. That hardship, however, is an inherent consequence of his deportation. C. Balance of Convenience [31] In view of the findings above, I find that the balance of convenience weighs in favour of the Respondent. [32] Canada has an interest in the prompt removal of persons whose refugee claims have not been upheld (as articulated in s. 48(2), citedabove).

This is not merely a matter of administrative convenience, it goes to the wider public interest in ensuring confidence in theintegrity of the immigration program as a whole: Vieira v Canada (Public Safety and Emergency Preparedness), 2007 FC 626; Selliah vCanada (Citizenship and Immigration), 2004 FCA 261 at para 22. [33] In view of this, I find the balance of convenience weighs in favour of the Respondent. [34] I will make one final comment on the Respondent’s argument that the Applicant comes before this Court with unclean hands, andtherefore should not be granted the discretionary remedy of a stay of removal.

There is support in the jurisprudence for this, and theoften-cited case of Canada (Minister of Citizenship and Immigration) v Thanabalasingham, 2006 FCA 14 sets out the criteria to beconsidered in assessing this (see, for examples of the application of these principles: Khasria v. Canada (Public Safety and EmergencyPreparedness), 2016 FC 773, Debnath v Canada (Immigration, Refugees and Citizenship), 2018 FC 332, Wu v. Canada (Citizenshipand Immigration), 2018 FC 779, and Mahuroof v.

Canada (Public Safety and Emergency Preparedness), (FC ). [35] It is evident that the Applicant knew in 2011 that his refugee claim had been denied. He then applied for a Pre-Removal RiskAssessment, so he must be taken to have been aware that his removal was a possibility. The Applicant claims that he did not know, untilhe was arrested, that his PRRA had been denied, but there is no evidence that he did anything to verify the status of the applicationbetween 2012 and the time of his arrest. He had come to Canada on a temporary visa, and had failed to gain status as a refugee.

There isno indication that he was ever informed that he had any other legal status in Canada prior to his arrest. In other cases this Court has foundthat living without status and evading authorities for many years can constitute "“unclean hands.”" [36] Against this, it should be noted that the Applicant claims he was not "“evading”" authorities because throughout this period he wassimply unaware of the PRRA decision or arrest warrant.

He only became aware of it when the CBSA officers showed up to arrest him.This is a relevant consideration in relation to the argument that he has not come to court with clean hands. [37] This underlines the key difficulty in this case. Although the Applicant has lived without legal status for several years, there is noinformation on file to substantiate the claim that he was "“evading”" authorities in the sense that he was aware of a hearing or meetingthat he deliberately avoided.

The more accurate description appears to be that he was "“avoiding”" authorities, and I repeat that he had nobasis to believe that he had any legal status in Canada. [38] On the other hand, he has married a Canadian citizen, has a son who is a Canadian citizen, and another child on the way. There isno evidence of any criminality or other particular issues relating to the Applicant’s time in Canada. Furthermore, the Applicant and hiswife have submitted a spousal sponsorship application and have dutifully complied with the steps to advance it through the process.

Itappears from the record that it was this application which brought the Applicant to the attention of the enforcement authorities, andwhich then lead to his arrest, detention and now his removal from Canada. [39] I make no findings in regard to the clean hands argument, and simply mention these elements as they relate to the particular facts ofthis case. ORDER in IMM-7404-19 THIS COURT ORDERS that the application for a stay of removal pending the determination of the Applicant’s application forjudicial review is denied. “William F.

Pentney” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-7404-19 STYLE OF CAUSE: JUAN MARCOS GOMEZ GARCIA v THE MINISTER OF PUBLIC SAFETYAND EMERGENCY PREPAREDNESS PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: DECEMBER 12, 2019 ORDER AND REASONS: PENTNEY J.

DATED: DECEMBER 13, 2019 APPEARANCES : Hamza Kisaka For The Applicant Rachel Hepburn Craig For The Respondent SOLICITORS OF RECORD : Hamza Kisaka Barrister and Solicitor Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent