FRED MUSASIZI Applicant v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, 2020 FC 5

Date: 20200103 Docket: IMM-7692-19 Citation: 2020 FC 5 Ottawa, Ontario, January 3, 2020 PRESENT: Mr. Justice Sébastien Grammond BETWEEN:FRED MUSASIZIApplicantandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] Mr. Musasizi is seeking a stay of his removal to Uganda scheduled for January 7, 2020. I am denying his motion for a stay, becausehe has not shown that the decision to deny his application for deferral was unreasonable. I. Facts [2] Mr. Musasizi is a citizen of Uganda. A brief

summary of his immigration history will be sufficient for the purposes of these reasons.He arrived in Canada in April 2000 and claimed refugee status shortly thereafter. His claim was denied in September 2000. As a result ofa number of offences he committed from 2007 to 2011, he was found to be inadmissible for serious criminality pursuant to

section 36 ofthe Immigration and Refugee Protection Act, SC 2001, c 27 [the Act]. [3] He applied for relief for humanitarian and compassionate [H&C] grounds. His application was denied in June 2017. He also appliedfor a pre-removal risk assessment [PRRA]. This application was denied in September 2017. In both cases, he applied to this Court forjudicial review, but leave was denied. [4] On November 21, 2019, Mr. Musasizi received a direction to report for his removal on January 7, 2020. On December 6, he asked anofficer of the Canada Border Services Agency [CBSA] to defer his removal for one year.

This application was based on the fact that Mr.Musasizi’s wife is set to undergo surgery on January 20, 2020, and that Mr. Musasizi’s presence is necessary for her recovery. A doctor’sletter was annexed to the application for deferral. [5] On December 17, 2019, a CBSA officer denied Mr. Musasizi’s request. She mentioned that there was no evidence that only Mr.Musasizi could attend to his wife’s needs while she recovers from her surgery.

In particular, she noted that his wife has three adultchildren and that, other than the fact that they are working full-time, there is no allegation that they are unable to support their mother.Moreover, she observed that Mr. Musasizi has been without a valid work permit since December 2017, which casts a doubt on hisallegation that he provides financial support to his wife. The officer also noted that Mr. Musasizi did not argue that he was himself unfitto fly or that new risks had arisen since the rejection of his PRRA application. [6] Mr.

Musasizi then applied for judicial review of the CBSA officer’s decision and brought the present motion for a stay of hisremoval. II. Analysis [7] Before turning to Mr. Musasizi’s situation, it is useful to clarify the general framework that this Court uses to decide motions for stayof removal. A. Stays of Removal: A User’s Guide [8] 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.

As it is grounded in equity, the application of this test is highly contextual and fact-dependent and the overarching goal isto "“do justice as between the parties:”" Surmanidze v Canada (Public Safety and Emergency Preparedness), 2019 FC 1615 atparagraphs 28 and 35 [Surmanidze]. [9] To understand the context in which the Court has to decide these motions, it is useful to distinguish two categories of cases. [10] The first category of cases is where the applicant’s recourses under the Act are not yet exhausted.

Sections 231 and 232 of theImmigration and Refugee Protection Regulations, SOR/2002-227, provide that an applicant’s removal is automatically stayed until acertain point in the immigration process, usually when a PRRA decision is rendered. Beyond that point, an applicant who seeks judicial

review of a negative PRRA decision may bring a motion for stay of removal before this Court. In that context, the first two prongs of the RJR test overlap significantly and the main issue is whether the PRRA officer reasonably assessed the harm to which the applicant would be exposed upon removal to his or her country of origin: see, for example, Manto v Canada (Immigration, Refugees and Citizenship) , 2018 FC 335 .

In contrast, where an applicant is awaiting a decision on an H&C application, or is seeking judicial review of a negative H&C decision, this Court usually does not grant a stay of removal, especially if it appears that the H&C application was made at the last minute, in an attempt to delay removal: see Lewis v Canada (Public Safety and Emergency Preparedness) , 2017 FCA 130 at paragraphs 56–57 , [2018] 2 FCR 229 [ Lewis ] . The same is true of spousal sponsorship applications: Forde v Canada (Public Safety and Emergency Preparedness) , 2018 FC 1029 at paragraph 40 . [ 11 ] Mr. Musasizi is not in such a situation.

As I mentioned above, his PRRA and H&C applications have been denied and leave to seek judicial review of these decisions has been denied as well. Thus, Mr. Musasizi has exhausted his recourses under the Act . As a result, he can only ask for a second type of stay of removal, which is temporary in nature. [ 12 ] In the second category of cases, the applicant can no longer obtain the right to remain in Canada and must leave the country. The only remaining question is when.

In this regard, subsection 48(2) of the Act states that " “[i]f a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and the order must be enforced as soon as possible.” " Despite this apparently absolute language, the Federal Court of Appeal has recognized that CBSA officers have a limited discretion to defer removal, through a procedure that has become known as " “administrative deferral:” " Baron v Canada ( Minister of Public Safety and Emergency Preparedness ) , 2009 FCA 81 at paragraph 51 , [2010] 2 FCR 311 [ Baron ]; Lewis , at paragraph 54 ; Revell v Canada (Citizenship and Immigration) , 2019 FCA 262 at paragraph 12 [ Revell ] . [ 13 ] Except in cases where a new risk has arisen in the country to which the applicant must be removed ( Savunthararasa v Canada ( Public Safety and Emergency Preparedness ) 2016 FCA 51 , at paragraph 7 , [2017] 1 FCR 318; Atawnah v Canada (Public Safety and Emergency Preparedness), 2016 FCA 144 at paragraph 22 , [2017] 1 FCR 153 ), the application for administrative deferral must be based on a transitional situation that causes a significant prejudice to the applicant or to related persons.

Justice Yves de Montigny of the Federal Court of Appeal gave the following examples of such situations: " “illness or other impediments to removal, the short term best interests of children, or the existence of pending immigration applications that were made on a timely basis:” " Revell , at paragraph 50 ; see also Kreishan v Canada (Citizenship and Immigration) , 2019 FCA 223 at paragraphs 125–126 ; Toney v Canada (Public Safety and Emergency Preparedness) , 2019 FC 1018 at paragraph 50 ; Newman v Canada ( Public Safety and Emergency Preparedness ) , 2016 FC 888 . [ 14 ] However, removal from Canada inevitably carries a number of negative consequences, such as the loss of employment or the separation of family members: Kanthasamy v Canada (Citizenship and Immigration) , 2015 SCC 61 at paragraph 23 , [2015] 3 SCR 909.

These consequences do not constitute grounds for deferring removal: Selliah v Canada (Minister of Citizenship and Immigration) , 2004 FCA 261 at paragraph 13 . [ 15 ] Where a CBSA officer denies a request for administrative deferral, that decision is subject to judicial review in this Court. Moreover, when such an application for judicial review has been initiated, the applicant may bring a motion for stay of removal in this Court.

Given that granting the motion for a stay is equivalent to the remedy sought by the main application, the first prong of the test is applied more rigorously and the applicant must show " “quite a strong case:” " RJR , at 338–339; Baron , at paragraphs 66–67 . Moreover, given that the CBSA officer’s role is to assess the harm flowing from the removal of the applicant, once again the first two prongs of the RJR test overlap significantly: see , for example, Surmanidze , at paragraph 52 .

Moreover, the CBSA officer is entitled to consider factors that would be relevant to the third prong of the RJR test, such as the applicant’s conduct and criminal record and the public interest in ensuring the removal of persons not entitled to remain in Canada. Thus, the issue really boils down to a single question: whether the CBSA officer unreasonably failed to take into consideration harm that fits into a recognized category, which counterbalances the obligation to effect removal as soon as possible. [ 16 ] Having set the framework in which motions for stay of removal are analyzed, I can now turn to Mr.

Musasizi’s case. B. Mr. Musasizi’s Case [ 17 ] The focus of the inquiry is whether Mr. Musasizi has shown " “quite a strong case” " that the CBSA officer unreasonably failed to exercise her discretion under subsection 48(2) of the Act . To be reasonable, a decision must be internally coherent and be justified in light of the applicable legal and factual constraints: Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 at paragraph 101 [ Vavilov ]. [ 18 ] A decision must also be responsive to the arguments raised by the parties: Vavilov , at paragraph 127 . Here, the only argument raised by Mr.

Musasizi is the fact that his wife will need his presence to facilitate her recovery after the surgery set for January 20, 2020. [ 19 ] The doctor’s letter filed in support of Mr. Musasizi’s application for deferral provides little detail as to the nature of the surgery and the expected recovery period. It reads more like a plea for compassion based on factors that are beyond medical expertise, such as family separation and financial support. It ends with a request to defer Mr. Musasizi’s deportation for nine months. [ 20 ] In light of this letter, it was reasonable for the CBSA officer to conclude that Mr.

Musasizi’s wife has other sources of support to help her recover after surgery. [ 21 ] Moreover, even though the argument concerning the financial support that Mr. Musasizi provides to his wife was contained in the doctor’s letter and not in the application for deferral, the CBSA officer reasonably declined to consider this factor, because Mr. Musasizi has been without a valid work permit since December 2017. If this statement was factually incorrect, Mr. Musasizi could have made the argument, but failed to do so in his affidavit or in his motion dated December 19, 2019.

It was too late to raise this issue at the hearing of this motion, without a proper evidentiary basis. [ 22 ] Thus, Mr. Musasizi has not shown " “quite a strong case,” " indeed any case at all, that the CBSA officer’s decision is unreasonable.

[ 23 ] Given this finding, it is unnecessary to consider the respondent Minister’s allegations that Mr. Musasizi does not come to the Court with clean hands or has attempted to avoid the law. In fact, it is usually not the role of a reviewing Court to buttress an administrative decision with arguments that were not considered by the decision-maker: Vavilov , at paragraph 96 . [ 24 ] Hence, Mr. Musasizi’s motion for a stay of his removal will be dismissed. ORDER in IMM-7692-19 THIS COURT ORDERS that: 1.

The style of cause is changed so that the name of the respondent reads " “The Minister of Public Safety and Emergency Preparedness.” " 2. The applicant’s motion for a stay of his removal from Canada is dismissed. “Sébastien Grammond” Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-7692-19 STYLE OF CAUSE: FRED MUSASIZI v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: January 2, 2020 ORDER AND REASONS: GRAMMOND J. DATED: January 3, 2020 APPEARANCES : Harry Blank, Q.C.

For The Applicant Sean Doyle For The Respondent SOLICITORS OF RECORD : Harry Blank, Q.C. Barrister and Solicitor Montréal, Quebec For The Applicant Attorney General of Canada Ottawa, Ontario For The Respondent