2023 FC, 2023 FC 1213

Date: 20230908 Docket: IMM-8077-23 Citation: 2023 FC 1213 Ottawa, Ontario, September 8, 2023 PRESENT: The Honourable Madam Justice Tsimberis BETWEEN: AGHARESE STEPHANIE AISHIDA Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent ORDER AND REASONS [ 1 ] Agharese Stephanie Aishida [Applicant] seeks a stay of removal to Nigeria scheduled for September 10, 2023. The present motion for a stay is brought as interlocutory relief to an Application for Leave and for Judicial Review [ALJR] of a decision dated May 17, 2023, rejecting the Applicant’s Pre-Removal Risk Assessment [PRRA] Application [Decision].

I. Factual Background [ 2 ] The Applicant is a failed refugee claimant and citizen of Nigeria. Her refugee claim is based on claims that if she returned to Nigeria, she would be persecuted by her ex-husband, who wants custody of their children and who is willing to harm her if she does not comply. She is concerned about the custody laws in Nigeria, which favour the father. At one point, the Applicant also claimed to fear her ex-boss, but has since dropped that allegation. [ 3 ] The Applicant’s refugee claim was heard on February 7, 2020.

The Refugee Protection Division [RPD] rejected the claim, raising some credibility concerns, finding that the Applicant failed to establish a forward-looking risk, and finding that the Applicant had an internal flight alternative (IFA) in Port Harcourt. [ 4 ] The Applicant appealed to the Refugee Appeal Division (RAD). In support of her appeal, the Applicant submitted affidavits and letters from family members and friends claiming that shortly after the RPD refusal, her ex-husband contacted her sister and brothers to inquire about her whereabouts.

The RAD found this evidence not to be credible as the timing is coincidental and suspicious. The RAD noted that the Federal Court has determined that it is reasonable for the RAD to consider suspicious timing when assessing the credibility of a document, particularly when it is submitted to directly address the RPD’s concerns. [ 5 ] On the merits, the RAD agreed with the RPD that the Applicant failed to establish a forward-looking risk:

a) When the Applicant and her ex-husband got divorced in 2016, he did not file for custody of the children;

b) On two occasions – once in 2016 and once in 2018 – the ex-husband and his family demanded that Applicant surrender the children to them.The Applicant did not relent on either occasion, and she had not heard from her ex-husband or his family since the 2018 incident;

c) There were no attempts to forcibly remove the children from the Applicant’s custody; and

d) The Applicant left her children with her mother in Nigeria, and her ex-husband had not attempted to obtain custody since she came to Canada. [ 6 ] The Applicant then made an application for a PRRA, wherein she claimed new evidence that there were a number of incidents that took place subsequent to her failed RAD appeal:

a) In September 2022, the Applicant’s ex-husband sought custody of the children, but the Court denied the petition;

b) Shortly thereafter, the Applicant’s ex-husband came to her mother’s house with two men and tried to enter.He pushed down the Applicant’s mother and yelled “where are the children”.The neighbours heard the shouting and chased him away;

c) In November 2022, the Applicant’s ex-husband went to another court seeking custody, but that hearing was adjourned until November 2023. [ 7 ] In support of these new allegations, the Applicant submitted court documents from the two custody proceedings, a police report detailing the incident at her mother’s house, and an affidavit from her mother. [ 8 ] Before proceeding with its own analysis, the PRRA Officer summarized that the Applicant’s “RPD and RAD applications for protection failed, with reasons based two-fold on credibility and a valid IFA. The RAD did not address the IFA as it found the [RPD]

[sic] had sufficient grounds to refuse based solely on lacking establishment of the relevant risks.” The PRRA Officer noted that “the newevidence is instead alleging new, more recent events that suggests there to be a risk to life in Nigeria.

This event is singular in fact, anapparent assault and attempted kidnapping in February 2023.” [9] Like the RPD and the RAD before it, the PRRA Officer found that the Applicant failed to establish that she is “likely to face apersonalized forward-looking risk to her life, a risk of cruel and usual treatment or punishment or that are substantial grounds to believeshe will be subjected to torture upon her return to Nigeria.” [10] In reaching this conclusion, the PRRA Officer found it curious that the Applicant feared that her ex-husband would take custody of(or perhaps even harm) her children, yet she left them behind in Nigeria and sought protection in Canada without them.

A. At the stay motion hearing, the Applicant pointed to the PRRA Officer’s statements that “The applicant does not act in accordancewith a mother whose custody of her children is her primary concern. (…) As of yet, the applicant is still resisting a return to her children,where she would be best positioned to use the Nigerian state to defend herself and her family from her ex-husband. She has yet to availherself or her son of state protection in Nigeria.

The applicant has again not established that the discriminatory custody laws in Nigeriaamount to persecution.” The Applicant argued these statements were moralizing, show that the Officer’s mindset was not open tofairmindedness and that the application was doomed to fail from the beginning. B.

The Respondent argued at the hearing that the above-referenced language used by the PRRA Officer should be assessed given theevidence before it, namely that she was divorced, she had custody of children who live with the grandmother in Nigeria for 5 years andno credible evidence that the husband is forcibly seeking the custody of the children in Nigeria. [11] The PRRA Officer also found that although the custody laws in Nigeria are undoubtedly discriminatory, they are not persecutory.

Inany event, as submitted by the Respondent, according to the Applicant’s own evidence, the Courts have already once rejected her ex-husband’s attempt to gain custody of her children, even though the Applicant has been absent from the country for years. [12] With respect to the Applicant’s fear that she (or her children) will be harmed by her ex-husband, the PRRA Officer indicated therewas only one alleged incident in the last five years (from September 2022) where the ex-husband displayed any propensity to useviolence, and no one was ultimately harmed thanks to intervention from neighbours.

Applicant’s counsel argued at the stay hearing thatone violent incident should have been enough. Though there is no indication on whether the police took any action, the Respondentargues it is likely because the police report was not made until five months after the incident, and six days before the Applicantsubmitted her PRRA application.

As pointed out by the Respondent, there was no allegation that the Applicant’s ex-husband hadattempted to contact the children since the September 2022 incident, despite knowing where they live. [13] Importantly, the PRRA Officer also found that the Applicant had an IFA in Port Harcourt, and that the new evidence did not addressthat the Applicant would be at risk there. The Officer also noted that some of the credibility concerns raised by the RPD and the RADremain unaddressed. II.

Conjunctive Tripartite Test for a Stay Order [14] In order to succeed on a motion to stay the enforcement of a removal order, the Applicant must meet the following tripartite test,namely that: (1) there is a serious issue to be tried (that is, the underlying ALJR raises a serious issue); (2) they would suffer irreparableharm, that is not quantifiable and non-compensable in damages in its absence, if the stay were not granted; and (3) the balance ofconvenience favours granting the stay (RJR-MacDonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR 311[RJR-MacDonald]; Toth v Canada (Minister of Employment and Immigration), (FCA); R v Canadian BroadcastingCorp, 2018 SCC 5 at para 12). [15] The tripartite test is conjunctive, meaning that, to be entitled to relief, an applicant must satisfy all three elements of the test(Janssen Inc v Abbvie Corporation, 2014 FCA 112 at para 14 [Janssen]).

None of the three branches can be seen as an"“optional extra”" (Janssen at para 19), and the "“failure of any of the three elements of the test is fatal”" (Canada (Citizenship andImmigration) v Ishaq, 2015 FCA 212 at para 15; Western Oilfield Equipment Rentals Ltd v M-I LLC, 2020 FCA 3 at para 7). A stay is anextraordinary remedy which requires the Applicant to demonstrate special and compelling circumstances that would justify exceptionaljudicial intervention (Harkat v Canada (Minister of Citizenship and Immigration), 2006 FCA 215 at para 10; Zuniga v Canada(Citizenship and Immigration), 2016 FC 992 at para 5).

III. Analysis of Irreparable Harm [16] I find the determinative issue to be irreparable harm, being the second branch of the tripartite test.

This branch places the onus onthe Applicant to demonstrate through clear and convincing evidence that irreparable harm will occur if the stay of removal is not granted.This must be established based on clear and non-speculative evidence at a convincing level of particularity demonstrating a realprobability that unavoidable irreparable harm will result (Glooscap Heritage Society v Canada (National Revenue), 2012 FCA 255 atpara 31 [Glooscap]; Erhire v Canada (Public Safety and Emergency Preparedness), 2021 FC 941 at para 65 and the cases cited therein).Irreparable harm must consist of more than a series of possibilities and cannot be based on assertions, speculation, assumptions orhypotheticals (Atwal v Canada (Minister of Citizenship and Immigration), 2004 FCA 427 at paras 14-15; Glooscap at para 31).

Thenotion of irreparable harm refers to the nature of the harm suffered rather than its magnitude. It is harm which "“either cannot bequantified in monetary terms or which cannot be cured”" (RJR-MacDonald at p 341). [17] Irreparable harm, for the purposes of a stay application, is a stringent test that requires clear and convincing evidence of a seriousthreat to an applicant’s life or safety (or that of their family) (Pierre v Canada (Public Safety and Emergency Preparedness), 2020 FC887; Mondelus v Canada (Public Safety and Emergency Preparedness), 2011 FC 1138 at paras 70-73; Schenker v Canada (Citizenship

and Immigration), ; Yu v Canada (Citizenship and Immigration), ; Golubyev v Canada(Citizenship and Immigration), 2007 FC 395 at para 12). [18] The Applicant has failed to establish that she would suffer irreparable harm upon removal to Nigeria. [19] In the present matter, the Applicant argues that if returned to Nigeria, she would suffer irreparable harm based on the sameallegations that were already rejected by the RPD and RAD Officers before the contested decision was made by the PRRA Officer.

TheApplicant’s fear of harm or persecution by her ex-husband, was the very same risk that was assessed and rejected by the RPD and RADOfficers. Before the RPD and RAD, a determinative issue was credibility. The PRRA Officer noted that it was the same risk andconcluded that the new evidence submitted by the Applicant was insufficient to disprove the assessment by the RPD and the RAD.Before the PRRA, the new evidence and narrative provided by the Applicant has not addressed the IFA in Port Harcourt beingunreasonable.

It is well settled that risks previously assessed, found lacking and rejected before by RPD, RAD and/or PRRA officerscannot be relied upon to demonstrate irreparable harm in a subsequent stay motion (Okolo v.

Canada (Citizenship and Immigration),2023 FC 39 at para 39, citing Jackson v Canada (Public Safety and Emergency Preparedness), 2011 FC 1381 at para 47, citingSingh v Canada (Minister of Citizenship and Immigration), 2005 FC 145 at para 14; Eid v Canada (Minister of Citizenship andImmigration), 2010 FC 639 at para 85; Goshen v Canada (Public Safety and Emergency Preparedness), 2011 FC 1380 at para 6;Spooner Romero v Canada (Citizenship and Immigration), ; Idahosa v Canada (Citizenship and Immigration), ). [20] The Applicant argues that irreparable harm necessary flows if she established that there is a serious issue in the underlying PRRA(“the existence of the serious issue in the context of this case also translates to a serious likelihood of irreparable harm” and “where theunderlying application is a PRRA application, a finding of a serious issue ought to necessitate a finding that irreparable harm couldresult”).

The Applicant pleads that its arguments on serious issue meet the low threshold, and thus, if the Court accepts that a seriousissue has been raised, then irreparable harm follows. The Applicant highlights that the underlying application is about the risk of physicalharm, which in the circumstances constitutes irreparable harm. [21] The Court does not agree with the Applicant that irreparable harm necessarily follows if the Applicant has met its low thresholdburden to meet a serious issue. As submitted by the Respondent, both the Federal Court and Federal Court of Appeal have rejected thissyllogism.

In Zhou v Canada (Citizenship and Immigration), 2016 FC 931 at paras 14-16, the Honourable Mr. Justice Roy relied on theFederal Court of Appeal’s decision in Janssen Inc. v Abbvie Corporation, 2014 FCA 112 at paras 19-21, to reject this syllogism andnotes that each branch of the tripartite test for a stay adds something important and must be satisfied. [22] The Applicant also submits that the potential mootness of the pending judicial review of the Decision constitutes irreparable harm.The potential mootness of an underlying application is not sufficient, in and of itself, to constitute irreparable harm.

In so finding, I amguided by the Federal Court of Appeal in Shpati v Canada (Public Safety and Emergency Preparedness), 2011 FCA 286: [34] This, in my opinion, is sufficient to dispose of the appeal. However, in case I am wrong, and in order to attempt toreduce uncertainty in the law, it is appropriate for this Court to address the issue raised in the certified question: does thepotential mootness of the pending PRRA litigation warrant deferral of removal? [35] In my view, the answer to this question is no.

If it were otherwise, deferral would be virtually automatic whenever anindividual facing removal had instituted judicial review proceedings in respect of a negative PRRA.

This would betantamount to implying a statutory stay in addition to those expressly prescribed by the IRPA, and would thus be contrary tothe statutory scheme. [23] Indeed, there is no statutory provision for a stay pending the review of a PRRA decision, which indicates Parliament’s intention thata failed PRRA applicant can be removed prior to their judicial review application being determined by the Court (Immigration andRefugee Protection Regulations, SOR/2002-227, ss. 231-232, Ucuk v Canada (Citizenship and Immigration), (FC),at para 11). [24] For this Court to do as the Applicant suggests and to find that any mootness in this litigation satisfies the test for irreparable harm, itwould apply to virtually all removal cases in which a stay is sought and would essentially deprive the Court of the discretion to decidequestions of irreparable harm on the facts of each case (El Ouardi v Canada (Solicitor General), 2005 FCA 42 at para 8; see alsoMohamed v.

Canada (Citizenship and Immigration), 2012 FCA 112 at para 32). Nevertheless, it remains open to the Court, on theindividual circumstance of a particular case, to conclude that mootness constitutes irreparable harm (Palka v Canada (Public Safety andEmergency Preparedness), 2008 FCA 165 at para 20).

Considering the foregoing, I have not been persuaded that, in the present case,there are particular circumstances allowing me to conclude that the potential mootness of the Decision reaches the level of irreparableharm. [25] For the foregoing reasons, I conclude that the requirements of the tripartite test for a stay of execution of the removal order have notbeen met. ORDER in IMM-8077-23 THIS COURT ORDERS that the motion for a stay of execution of the removal order issued against the Applicant is dismissed. “Ekaterina Tsimberis” Judge FEDERAL COURT

FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-8077-23 STYLE OF CAUSE: AGHARESE STEPHANIE AISHIDA v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD BY VIDEOCONFERENCE DATE OF HEARING: AUGUST 15, 2023 ORDER AND REASONS: TSIMBERIS J. DATED: SEPTEMBER 8, 2023 APPEARANCES : KINGSLEY I. JESUOROBO For The Applicant DANIEL ENGEL For The Respondent SOLICITORS OF RECORD : JESUOROBO & ASSOCIATES TORONTO, ONTARIO For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent