2022 FC, 2022 FC 1208

Date: 20220817 Docket: IMM-7575-22 Citation: 2022 FC 1208 Toronto, Ontario, August 17, 2022 PRESENT: Madam Justice Go BETWEEN:MOSES NKAMUHABWAApplicantAndTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] Mr.

Moses Nkamuhabwa [Applicant] seeks a stay of his removal to Uganda, scheduled for August 18, 2022, until the finaldetermination of his application for leave and for judicial review of a decision dated July 29, 2022 by an Inland Enforcement Officer[Officer] denying the Applicant’s request to defer the execution of the removal order [Decision]. [2] Having considered the material filed by the parties and submissions by counsel, I am dismissing the application for a stay. I. Context [3] The Applicant is a citizen of Uganda who came to Canada in 2019.

The Applicant’s refugee claim was refused by the RefugeeProtection Division and the Refugee Appeal Division. [4] The Applicant met his spouse in July 2019 and they married in July 2021. The Applicant and his spouse filed a spousal sponsorshipapplication in January 2022. [5] Following a pre-removal interview in June 28, 2022, the Applicant was served with a Direction to Report on July 12, 2022.

On July26, 2022, the Applicant submitted a request to defer his removal, citing as the basis of his request, damage to his spouse’s mental health,the high-cost disruptive internet connection in Uganda, the best interests of his spouse’s two children, and the pending sponsorshipapplication. [6] The Officer concluded that there were insufficient compelling, unusual, or extenuating circumstances that outweigh her statutory dutyto enforce the valid removal order. The Officer thus denied the Applicant’s deferral request. II.

Issues and Legal Test for Obtaining a Stay [7] The only issue is whether a stay of removal should be granted in these circumstances. [8] In order to obtain a stay, the Applicant must meet the tripartite test articulated by the Supreme Court of Canada in Manitoba (AttorneyGeneral) v Metropolitan Stores (MTS) Ltd, (SCC), [1987] 1 SCR 110, 38 DLR (4th) 321 [Manitoba], RJR-MacDonald vCanada (Attorney General), (SCC), [1994] 1 SCR 311, 111 DLR (4th) 385 [RJR-MacDonald], and R v CanadianBroadcasting Corp, 2018 SCC 5, which is the test to be applied to stays of removal: Toth v Canada (Minister of Employment andImmigration) (1988), (FCA), 86 NR 302, 11 ACWS (3d) 440 (FCA). [9] A stay of removal is warranted only if all three elements of the test are satisfied, namely: (

i) the underlying application for judicialreview raises a serious issue; (ii) the moving party will suffer irreparable harm if the stay is not granted and the removal order isexecuted; and (iii) the balance of convenience favours the granting of the order. [10] The application of this test is highly-contextual and fact-dependent. As the Supreme Court of Canada explained, "“[u]ltimately, thequestion is whether granting the injunction would be just and equitable in all the circumstances of the case”" (Google Inc v EquustekSolutions Inc, 2017 SCC 34 at para 1). III. Analysis A.

Serious Issue [11] While in many cases, the threshold for the serious issue branch of the test is not high, in cases where the stay is requested followinga refusal to defer removal, a higher threshold applies. The Applicant needs to demonstrate a "“likelihood of success”" or "“quite a strongcase”" in regard to the underlying application for leave and judicial review: Wang v Canada (Minister of Citizenship and Immigration),2001 FCT 148, [2001] 3 FC 682 [Wang]; Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81,

[2010] 2 FCR 311 at para 67 ; and Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at para 43 . [ 12 ] The Applicant raises several serious issues in the underlying application. [ 13 ] First, the Applicant points to the Officer’s reliance on Public Policy under s.25(1) of the Immigration and Refugee Protection Act [ IRPA ] and Regulation 233 under the Immigration Refugee Protection Regulations [ IRPR ], to conclude that the Applicant is not eligible to benefit from a deferral or stay of removal because he and his spouse do not reside together and have not been cohabiting since his spouse moved to Yellowknife in February 2020.

The Applicant argues that, in so finding, the Officer denied the Applicant procedural fairness by usurping the role of an officer of the Immigration, Refugees and Citizenship Canada [IRCC]. The Applicant further submits the Officer applied an incorrect definition of cohabitation and thereby committed an error of law, and fettered her discretion. [ 14 ] I am not persuaded by the Applicant’s argument. I agree with the Respondent that the Officer’s analysis under Regulation 233 was unnecessary.

However, the Officer conducted the analysis in response to the Applicant’s submission, which referenced Rule 233. [ 15 ] Further, I find the Officer did not reject the deferral request on the basis of Rule 233 or the associated public policy. [ 16 ] The Officer acknowledged, as she should, that IRPA confers some discretion to temporarily defer a removal.

However, the Officer reasonably noted the Applicant’s recently submitted spousal sponsorship application had not passed the eligibility stage, and that according to the IRCC website, the average processing time for spousal applications made in this category are taking 36 months to process and could be longer due to COVID-19 pandemic. The Officer also acknowledged in some cases it would be appropriate to grant a temporary deferral of removal when an application for permanent residency is outstanding and near the final decision making point.

In this case, the Officer noted insufficient evidence has been provided to show that a decision by IRCC will be rendered sooner than the estimated timeframe and the Applicant did not indicate a time period for deferral. The Officer thus denied the referral request.

The Officer’s conclusion, in my view, was entirely reasonable and did not raise any serious issue. [ 17 ] Next, the Applicant argues that there are serious unresolved issues regarding the mental health of the Applicant’s spouse and stepchildren, and the Officer unreasonably assessed the facts when she stated that there are various resources available to assist his spouse and stepchildren. [ 18 ] I disagree. [ 19 ] The only evidence submitted by the Applicant to support his submission that his spouse’s mental health condition would deteriorate should the Applicant be removed from Canada was a psychological report prepared on July 22, 2022.

The Officer reviewed the report and found that the Applicant’s spouse was receiving medical care for her underlying medical issue. The Officer noted the Applicant’s spouse was able to access treatment and receive a psychological evaluation via Whatsapp video call, and participated in a support group for people with similar medical conditions.

After considering there are various resources and treatments available to assist the Applicant’s spouse’s mental health, the Officer then stated she was not satisfied a short term deferral would have a significant impact on the Applicant’s spouse and children’s mental health. This finding in my view is consistent also with the psychologist’s opinion that necessary mental health services should be implemented before the Applicant is removed, thus acknowledging that such services are indeed available.

In view of the evidence before the Officer, her conclusion in this regard was reasonable. [ 20 ] At the hearing, the Applicant raised a new argument that the Officer should have deferred the Applicant’s removal until after the necessary services are put in place for his spouse. The Applicant never put this submission in his deferral request, even though the obligation was on him to put his best case forward.

Instead, the Applicant sought to have the removal deferred until the spousal sponsorship application was dealt with. [ 21 ] When asked, counsel continued to insist at the hearing that there is no need to put any specific timeline in a deferral request, as officers should simply exercise their discretion in light of the circumstances of each case. With respect, counsel’s argument is not supported by the case law, which reflects the legislative constraint on removal officers when exercising their discretion: Williams v.

Canada (Minister of Public Safety and Emergency Preparedness) 2020 FC 683 , at para 17 , citing Chief Justice Crampton in Forde v Canada (Public Safety and Emergency Preparedness) , 2018 FC 1029 . [ 22 ] The Applicant also points to the Officer’s assessment of hardships facing him and his family in view of mobile data availability and accessibility in Uganda as another serious issue. The Applicant argues the Officer failed to consider this issue.

While I note the Officer stated mobile data cost and availability in Uganda is not a relevant ground, the Officer did consider this factor in any event but concluded: " “mobile data cost and availability is not sufficient exceptional circumstances to warrant a deferral of removal reasonable” " .

I find nothing unreasonable about this conclusion. [ 23 ] Finally, the Applicant submits the Officer failed to consider the best interests of his stepchildren by finding the Applicant can still communicate with them from Uganda, and ignored evidence as to the unavailability and inaccessibility of mobile network in Uganda. [ 24 ] As the Respondent points out: " “It is not enough to state that the child or children in question will suffer emotionally or that separation from remaining family members will be disruptive.” " ( Toney v Canada (Minister of Public Safety and Emergency Preparedness) , 2019 FC 1018 at para 48 ).

In this case, the Applicant provided very limited submissions in his deferral request regarding the best interests of his two stepchildren and no evidence to support that these two children would suffer any harm as a result of his removal. In view of the insufficient evidence, it was reasonable for the Officer to conclude that the Applicant can communicate with the children via phone as he has been doing since they moved to Yellowknife with their mother. [ 25 ] In conclusion, I find the Applicant has not established there are serious issues to be tried. B.

Irreparable Harm [ 26 ] While not necessary for me to do so in view of my findings above, I will consider if there is irreparable harm in this case, to ensure I

have considered all the equitable factors that may justify the granting of the stay. [27] Irreparable harm refers to harm which cannot be compensated in money; it is the nature rather than the magnitude of the harm whichis to be examined: RJR MacDonald, at p. 135. In the context of a stay of removal, the harm usually relates to the risk to the individual(s)of harm upon removal from Canada.

It may also include specific harms that are demonstrated in regard to any persons directly affectedby the removal, and who will be remaining in Canada: Tesoro v Canada (Minister of Citizenship and Immigration), 2005 FCA 148. [28] The law requires that irreparable harm be established based on evidence, not assertions or speculation: Atwal v Canada (Citizenshipand Immigration), 2004 FCA 427 at paras 14-15.

However, the test for irreparable harm is also not one of absolute certainty: Suresh vCanada (Minister of Citizenship and Immigration), (FCA), [1999] 4 FC 206 (C.A.) at para 12. [29] The Applicant submits that, in addition to financial hardship, there is irreparable harm to removing him in view of the mental healthcondition of his spouse, which in turn would affect his stepchildren.

The Applicant also submits his own physical, mental, psychologicalwellbeing will be severely affected. [30] I will note, first of all, the Applicant provided no evidence regarding the impact of the removal on his own mental andpsychological wellbeing. There is also little in terms of evidence with respect to the impact on his stepchildren.

As to the impact on hisspouse, I agree with the Respondent that while the Applicant’s spouse needs mental health treatment, it does not rise to the level ofirreparable ham, in view of accessible resources and treatments. [31] While I acknowledge that the Applicant and his spouse are living in different parts of the country to pursue better employmentopportunities, and while I am sympathetic to the Applicant and his family, I agree with the Respondent the evidence in this case fallsshort of establishing irreparable harm, if stay is not granted. C.

Balance of Convenience [32] In light of my findings above, the balance of convenience favours the Respondent. ORDER in IMM-7575-22 THIS COURT ORDERS that the application for a stay of removal pending the determination of the Applicant’s application forjudicial review is dismissed. "Avvy Yao-Yao Go" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-7575-22 STYLE OF CAUSE: MOSES NKAMUHABWA v THE MINISTER OF PUBLIC SAFETY ANDEMERGENCY PREPAREDNESS PLACE OF HEARING: HELD VIA VIDEOCONFERENCE DATE OF HEARING: August 16, 2022 ORDER AND REASONS: GO J.

DATED: AUGUST 17, 2022 APPEARANCES : Kingsley Jesuorobo For The Applicant Aida Kalaj For The Respondent SOLICITORS OF RECORD : Kingsley Jesuorobo Kingsley Jesuorobo & Associates Toronto, Ontario For The Applicant Attorney General of Canada Saskatoon, Saskatchewan For The Respondent