Luis Alberto RODRIGUEZ PICADO Miriam CHAVARRIA GUTIERREZ Luz Fabiana RODRIGUEZ CHAVARRIA SHELSY MARIAM RODRIGUEZ CHAVARRIA Applicants v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, 2023 FC 911

Date: 20230628 Docket: IMM-7833-23 Citation: 2023 FC 911 Toronto, Ontario, June 28, 2023 PRESENT: Madam Justice Go BETWEEN:Luis Alberto RODRIGUEZ PICADO Miriam CHAVARRIA GUTIERREZ Luz Fabiana RODRIGUEZ CHAVARRIA SHELSY MARIAM RODRIGUEZ CHAVARRIAApplicantsandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] The Applicants are a family of four: Mr. Luis Alberto Rodriguez Picado, his spouse Miriam Chavarria Gutierrez, and their two minorchildren Luz Fabiana and Shelsy Mariam.

The Applicants seek a stay of their removal to Costa Rica, scheduled for July 5, 2023. [2] The Applicants submitted a request to defer their removal to the Canada Border Services Agency [CBSA] on May 24, 2023 [deferralrequest], which was supplemented by additional supporting evidence and submissions on June 2, 2023. On June 20, 2023, an InlandEnforcement Officer [Officer] issued a decision denying the Applicants’ deferral request [Decision].

On the following day, theApplicants filed an application for leave for judicial review [ALJR] with this Court to seek a writ of certiorari quashing the Decision. [3] Having considered the materials filed by the parties, and having heard the submissions of counsel for the parties, I am granting theapplication for a stay. I. Context [4] The Applicants are citizens of Costa Rica, from which they fled on April 4, 2018 due to threats from a criminal gang after Mr. Picadospoke to the police about their activities. The Applicants made a refugee claim in Canada.

The Refugee Protection Board [RPD]concluded there is an Internal Flight Alternative and rejected their claim.

The Applicants’ appeal of the RPD decision was denied, andleave for judicial review of the appeal decision was also dismissed. [5] The Applicants submitted an application for permanent residence on humanitarian and compassionate grounds [H&C application] onDecember 16, 2022. [6] The Applicants previously asked to defer their removal until the first week of July so that their children could finish the school year.Their initial request was granted and removal scheduled for July 5, 2023. [7] In their deferral request, the Applicants asked for a 3 to 6 months deferral until they could receive a stage-one decision on the H&Capplication, or a deferral until June 2024, so that Shelsy could complete her Grade 12 school year in Ontario.

The Applicants submitevidence that Shelsy would have to repeat Grade 10 and 11 if they return to Costa Rica, putting her back two years in her education. TheApplicants also submitted evidence showing that the immunosuppressive therapy medication which Ms.

Gutierrez takes for herautoimmune disease is not available in Costa Rica, as the illness is not on a list of recognized illnesses in that country. [8] In finding that a deferral of the execution of the removal order is not appropriate in the circumstances, the Officer determined that theH&C application has not been assessed and a decision is neither imminent nor overdue. The Officer concluded that they have not beenprovided with evidence that Ms.

Gutierrez or any other family member “are medically unfit to fly”, are “in need of emergency medical orpsychiatric care prior to leaving Canada”, or that the children “would be denied an education in Costa Rica.” II.

Issues and Legal Test for Obtaining a Stay [9] The only issue is whether a stay of removal should be granted in these circumstances. [10] In order to obtain a stay, the Applicants must meet the tripartite test articulated by the Supreme Court of Canada in Manitoba(Attorney General) v Metropolitan Stores (MTS) Ltd, (SCC), [1987] 1 SCR 110, 38 DLR (4th) 321 [Manitoba], RJR-MacDonald v Canada (Attorney General), (SCC), [1994] 1 SCR 311, 111 DLR (4th) 385 [RJR-MacDonald], and R vCanadian Broadcasting Corp, 2018 SCC 5, which is the test to be applied to stays of removal: Toth v Canada (Minister of Employmentand Immigration) (1988), (FCA), 86 NR 302, 11 ACWS (3d) 440 (FCA).

[11] 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. [12] 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. [13] 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 Applicants need 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 [Baron] at para 67; and Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at para 43. III. Analysis A. Serious Issue [14] The Applicants raise several issues arising from the Decision.

Among those are that: a. the Officer fettered their discretion by failing to consider the arguments put forth with respect to the pending H&C application, andfailed to appreciate the compelling circumstances of the case; b. the Officer ignored evidence with respect to the best interests of the children (including the mental health of a close family friend)and speculated with respect to Shelsy’s academic future; c. the Officer failed to address the impact of the removal on the employer of Mr. Picado; and d. the Officer failed to address Ms.

Gutierrez’s medical needs. [15] The Applicants further elaborate that a removal officer has some discretion to consider a “broad range of circumstances” and that anofficer’s failure to consider “compelling individual circumstance… may constitute an unlawful fettering of the officer’s discretion”:Prasad v Canada (Minister of Citizenship and Immigration), 2003 FCT 614 at para 32. [16] At the hearing, the Applicants further submitted that the Officer erroneously relied on Baron to find that the only thresholdwarranting a deferral request is where “the failure to defer will expose the applicant to the risk of health, extreme sanction or inhumanetreatment”: at para 51.

The Applicants noted that the Federal Court of Appeal stated in the same paragraph: With respect to H&C applications, absent special considerations, such applications will not justify deferral unless based upona threat to personal safety. [17] The Applicants further reiterated that they were not asking the Officer to assess the merits of their H&C application, contrary to theRespondent’s submission.

Rather, the Applicants submitted that the case law is clear that when a removal officer is presented with anH&C application filed in a timely manner, the officer shall consider whether there are special considerations to warrant a deferral: Baronat para 51. [18] The Respondent submits that an outstanding H&C application is not, on its own, basis for deferring a removal, and that the Officeronly needs to consider the short-term interests of the Applicants in their deferral request.

The Respondent submits that the Officerreasonably considered the main grounds for the deferral request, and reasonably exercised their discretion not to defer in view of thelength of the deferral requested. [19] The Applicants need only to establish at least one serious issue, on the elevated threshold as set out in Wang at para 10. Havingreviewed the Decision and the evidence put before the Officer, I find they have done so. B.

Irreparable Harm [20] 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. [21] 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 (CA) at para 12. [22] Irreparable harm may arise from a risk to life, liberty, or safety that an individual would be exposed to if removed to their country oforigin: Begashaw v Canada (Minister of Citizenship and Immigration), 2009 FC 462 at para 54, citing Sivakumar v Canada (Minister ofEmployment and Immigration), (FCA), [1996] 2 FC 872, 63 ACWS (3d) 912 (CA); Hernandez v Canada (SolicitorGeneral) (1993), 42 ACWS (3d) 892, [1993] FCJ No 950 (QL); Membreno Garcia v Canada (Minister of Employment andImmigration), (FC), [1992] 3 FC 306, 55 FTR 104 (TD) ; Suresh v Canada (1998), (ON SC), 49CRR (2d) 131, 77 ACWS (3d) 163.

[ 23 ] There is some overlap between the evidence and arguments with respect to serious issues and those relating to irreparable harm. In particular, it was put to the Officer that a deferral for three to six months was warranted because Ms. Gutierrez suffered from an autoimmune disease that required medication and regular follow ups, which is part of the compelling circumstances underpinning their H&C application. [ 24 ] As explained in a letter from her physician, Ms.

Gutierrez suffers from a chronic, incurable autoimmune disease which “attacks the muscles of the body, resulting in weakness, loss of function and elevated risk of comorbid cardiovascular disease and cancer”. The physician also explains that Ms. Gutierrez’s disease has been controlled with the use of multiple treatment modalities, without access to which, her health “would be put at significant risk”. As the physician opines: IV IG in particular may not be easily accessible outside of North American clinical settings, and this therapy in particular remains the cornerstone treatment to manage this disease.

Discontinuation of this treatment would certainly result in flare and complications, which would threaten her long-term health and function. [ 25 ] Finally, the physician expresses “significant concerns” if forced to leave Canada, as Ms. Gutierrez would be “unable to receive adequate care based on the complexity of disease”. [ 26 ] The Applicants also submitted a letter from a medical practitioner in Costa Rica, Dr. Navarro, confirming that Ms.

Gutierrez would not be approved for treatment with IVIG, the very treatment that her Canadian physician describes as the “cornerstone” to managing her illness. [ 27 ] The Applicants cite Pimentel Dos Santos v Canada (Citizenship and Immigration) , 2022 FC 765 [ Pimentel Dos Santos ], where Justice Norris addressed the test with respect to irreparable harm: [13] Under the second part of the test, “the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicants' own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application” ( RJR-MacDonald at 341).

This is what is meant by describing the harm that must be established as “irreparable”. It concerns the nature of the harm rather than its magnitude ( ibid. ). Generally speaking, irreparable harm is harm that cannot be quantified in monetary terms or that could not be cured for some other reason even if it can be quantified (e.g. the other party is judgment-proof). [14] To establish irreparable harm, the applicants must show that there is “real, definite, unavoidable harm -- not hypothetical and speculative harm” ( Janssen Inc v Abbvie Corporation , 2014 FCA 112 at para 24 ).

They must adduce clear and non-speculative evidence that irreparable harm will follow if the stay is refused. Unsubstantiated assertions of harm will not suffice. Instead, "there must be evidence at a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result" unless the stay is granted [citations omitted]. [15] As I have stated elsewhere, in my view, particularly as applied to apprehended future harms, the idea of a “real probability” of harm is fundamentally a qualitative as opposed to a quantitative assessment.

The harm that is relied on certainly cannot be merely hypothetical or speculative but at the same time it is unrealistic to demand evidence establishing 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 .

As well, the idea of a “real probability” should not be understood as setting a threshold for establishing irreparable harm that will unduly foreclose access to the third part of the test, where the balancing of interests that is the essence of the exercise of equitable discretion is carried out. It is only in the third part of the test that the Court would determine whether, if there is a real risk of irreparable harm, it is an unacceptable risk having regard to all of the circumstances of the case.

See Singh at para 31 . [ 28 ] The Respondent submits that many of the alleged harms are long-term considerations that fall outside of the timeframe for consideration in the present motion, which focuses on whether harm will occur during the span of the stay of removal. [ 29 ] The Respondent also submits that the letter from the physician in Costa Rica does not constitute “objective evidence” that is clear and convincing. [ 30 ] I agree with the Respondent that certain aspects of the harm alleged by the Applicants constitute long-term considerations.

However, that does not mean that there is no immediate harm resulting from the removal. [ 31 ] I also reject the Respondent’s characterization of the medical evidence from Costa Rica. The letter is provided by a third party physician. That the letter is not issued by the government of Costa Rica does not make it any less objective. Further, I note that in confirming that that the needed treatment would not be available in Costa Rica, Dr.

Navarro specifically refers to the Government Guidelines for the Institutional Use of Intravenous Immunoglobulin. [ 32 ] Based on the evidence before me, I conclude that there is clear and convincing evidence that there would be immediate harm to Ms. Gutierrez should the removal be effected. I also find that the harm in question cannot be quantified or remedied, if the Applicants are removed. [ 33 ] As such, the Applicants have met the second branch of the tripartite test. C.

Balance of Convenience [ 34 ] In the third branch of the test, the Court has to consider where the balance of convenience lies, taking into consideration the public interest to be weighed together with the interests of private litigants: Manitoba , paras 34, 38. [ 35 ] I acknowledge there is a public interest in the prompt removal of persons whose refugee claims have been denied. I also agree with

the Respondent that the Applicants have had the benefit of several immigration applications and assessments, including a previous deferral of removal. But I also note that the Applicants have yet to have the benefit of their H&C application assessed. Further, there is no evidence before me to suggest that the Applicants have failed to comply with any immigration enforcement requirements or have any criminal record in Canada. [ 36 ] The Applicants cite Pimentel Dos Santos at para 29 where the Court stated: [29] The applicants are subject to removal because they overstayed their legal status as visitors to Canada.

This is an important consideration in assessing the public interest. However, the only "inconvenience" to the respondent if the applicants are not removed now and their application for judicial review is dismissed is that their removal from Canada will have been delayed; it will not have been frustrated entirely. On the other hand, the "inconvenience" to the applicants of losing the right to a meaningful remedy is significant and, as I have determined above, irreparable.

This interest is not confined to the applicants; it is shared by the public and by the administration of justice, a factor that also tips the balance in favour of a stay.

In the particular circumstances of this case, this outweighs the public interest in the immediate enforcement of the removal order. [ 37 ] In this case, the “inconvenience” to the Applicants involve the loss of access to much needed medical treatment while they await the outcome of the stage-one decision of their H&C application. [ 38 ] In view of my above findings, granting the stay until the underlying ALJR is determined would be just and equitable in all the circumstances of the case. The balance of convenience thus lies with the Applicants.

ORDER in IMM-7833-23 THIS COURT ORDERS that the application for a stay of removal pending the determination of the Applicants’ application for judicial review is granted. "Avvy Yao-Yao Go" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-7833-23 STYLE OF CAUSE: LUIS ALBERTO RODRIGUEZ PICADO, MIRIAM CHAVARRIA GUTIERREZ, LUZ FABIANA RODRIGUEZ CHAVARRIA, SHELSY MARIAM RODRIGUEZ CHAVARRIA v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: HELD VIA VIDEOCONFERENCE DATE OF HEARING: june 27, 2023 ORDER AND reasons: GO J.

DATED: JUNE 28, 2023 APPEARANCES : Richard Wazana For The ApplicantS Kevin Doyle For The Respondent SOLICITORS OF RECORD :

Richard Wazana Barrister and Solicitor Toronto, Ontario For The Applicants Attorney General of Canada Toronto, Ontario For The Respondent