2022 FC, 2022 FC 1699

Date: 20221209 Docket: IMM-8248-22 Citation: 2022 FC 1699 Toronto, Ontario, December 9, 2022 PRESENT: Madam Justice Go BETWEEN: Fawzi Iman Ibrahim SHALABYZeinab Abdulkareem Elsayed ALSHARQAWYApplicantsandMINISTER OF CITIZENSHIP AND IMMIGRATION Respondent ORDER AND REASONS [1] The Applicants, Fawzi Iman Ibrahim Shalaby and Zeinab Abdulkareem Elsayed Alsharqawy, seek a stay of removal to Egyptscheduled for December 12, 2022.

The motion for stay is brought as interlocutory relief to an Application for Leave and for JudicialReview of a decision dated July 4, 2022 denying the Applicants’ Pre-Removal Risk Assessment [PRRA] application [PRRA Decision].On November 22, 2022, Justice Mosley issued a Production Order in this matter. [2] Having considered the material filed by the parties, and having heard the submissions of counsel for the parties, I am granting theApplicants’ motion for a stay of their removal. I. Context [3] The Applicants are a couple and are citizens of Egypt. The Applicants founded a charity with their sons in 2003.

Between 2004 and2011, the charity was devoted to serving the needy in Egypt. During the revolution in 2011, the charity began to hold human rights andpolitical awareness seminars. In March 2012, after the Mubarak regime was overthrown, the then newly-elected President MohamedMorsi spoke at an event organized by the Applicants’ charity. [4] After the Morsi government was overthrown, the Applicants’ son and daughter-in-law joined others in protest in 2013.

In December2013, the El Sisi regime shut down the Applicants’ charity and seized its funds based on allegations that the charity was affiliated withthe Muslim Brotherhood and involved in terrorism. Several members of the board of the charity resigned, while others were arrested. [5] One of the Applicants’ sons was wanted by the government of Egypt. The Applicants were questioned by Egyptian security agentsabout their son in October 2015 and were threatened with arrest if they did not produce their son. The Applicants fled to Turkey in May2015, but returned to Egypt due to medical reasons.

The Applicants joined the rest of their family in Turkey in July 2016, and eventuallyreached the US in 2017 where they sought asylum. The Applicants came to Canada after the asylum claims of their family memberswere denied in the US. As the Applicants were found ineligible for making a refugee claim, they were served with a PRRA. [6] Separately, the Applicants’ daughter also made a refugee claim and her claim was accepted by the Refugee Protection Division[RPD]. [7] In their PRRA application, the Applicants alleged a fear of persecution on the basis of:

a) being founders of their charity,

b) theirperceived support of Mohamed Morsi and the Muslim Brotherhood,

c) being connected to persons wanted by the state and

d) as personswho claimed asylum against Egypt in Canada. [8] While finding no credibility concerns with the Applicants, the officer reviewing their PRRA application [Officer] found theApplicants lack a well-founded fear of persecution and risk to life. [9] On November 28, 2022, the Applicants were issued a Direction to Report for removal. The Applicants asked for a deferral of removalin light of the Court’s issuance of the Production Order. The request was denied after the Applicants filed the herein motion for a stay. II.

Issues and Legal Test for Obtaining a Stay [10] The only issue is whether a stay of removal should be granted in these circumstances. [11] 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 [Manitoba], RJR-MacDonald v Canada(Attorney General), (SCC), [1994] 1 SCR 311 [RJR-MacDonald], and R v Canadian Broadcasting Corp, 2018 SCC 5,

which is the test to be applied to stays of removal: Toth v Canada (Minister of Employment and Immigration) (1988), (FCA), 86 NR 302, 11 ACWS (3d) 440 (FCA). [12] 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. [13] 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 [14] The Respondent concedes there is a serious issue. [15] As noted above, the Court has already issued a Production Order in this matter, signalling that a leave order is forthcoming. I findthat the Applicants have demonstrated that they have raised issues that go beyond the “not frivolous or vexatious” threshold on a staymotion, as the Production Order points to the Court’s finding of a fairly arguable case: Joseph v Canada (Citizenship and Immigration), (FC). [16] I therefore find that the first branch of the tripartite test is satisfied. B.

Irreparable Harm [17] Irreparable harm refers to harm which cannot be compensated in money; it is the nature rather than the magnitude of the harm,which is to be examined: RJR-MacDonald at para 64. 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 harm that is demonstrated in regard to any persons directlyaffected by the removal, and who will be remaining in Canada: see Tesoro v Canada (Minister of Citizenship and Immigration), 2005FCA 148 at para 28. [18] 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. [19] Irreparable harm may arise from a risk to life, liberty, or safety that the 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 (CA); Hernandez v Canada (Solicitor General), [1993] FCJNo 950 (TD); Membreno-Garcia v Canada (Minister of Employment and Immigration), (FC), [1992] 3 FC 306 (TD);Suresh v R, (ON SC), [1998] OJ No 296, 49 CRR (2d) 131. [20] Citing Zuniga v Canada (Minister of Citizenship and Immigration) 2016 FC 992 at para 5 and Canada (Minister of Citizenship andImmigration) v Harkat, 2006 FCA 215 at para 10, the Respondent argues that the issuance of a stay is an “extraordinary remedy” and theApplicants need to demonstrate “special and compelling circumstances” that would warrant “exceptional judicial intervention”. [21] I note, as the Applicants points out, the labelling of the remedy sought as extraordinary does not elevate the requirements of thetripartite test. [22] While the Respondent concedes there are serious issues to be tried with respect to the PRRA Decision, the Respondent neverthelessinsists that the Decision was reasonable and the Officer made no errors.

The Respondent submits that because the risks alleged by theApplicants on this motion are the same risks that have been assessed in a PRRA Decision that is barely four months old, the Applicantsdo not meet the test of irreparable harm by merely repeating the same risk allegations. [23] I find the Respondent’s argument somewhat illogical, in light of their concession that there are serious issues to be tried. TheRespondent’s argument would only make sense if the Court could accept the PRRA Decision at face value.

However, given that thereare serious issues to be tried, the Court cannot assume with certainty that the Applicants’ allegations of risk have been properly assessed.As such, it is irrelevant that the PRRA Decision is barely four months old. [24] I agree that the Court should not conflate the first two parts of the test, and allow the existence of a serious issue to establish non-speculative irreparable harm. However, in a case such as this, there are serious issues to be tried that are intricately linked with thequestion of risk assessment.

As such, there is naturally considerable overlap between the evidence and arguments with respect to seriousissues and those relating to irreparable harm.

It thus follows that a finding of serious issues to be tried with respect to a flawed riskassessment could also give rise to a finding of irreparable harm. [25] As to the Respondent’s submission that requirements of the tripartite test are conjunctive, I noted that Justice Norris recentlyconfirmed in Matthew v Canada (Minister of Citizenship and Immigration), 2022 FC 924 at para 14: While each part of the test is important, and all three must be met, they are not discrete, watertight compartments.

Each part focuses theCourt on factors that inform its overall exercise of discretion in a particular case: Wasylynuk v Canada (Royal Mounted Police), 2020 FC962 at para 135. The test should be applied in a holistic fashion where strengths with respect to one factor may overcome weaknesses

with respect to another: see RJR-MacDonald at 339; Wasylynuk at para 135 ; Spencer v Canada (Attorney General) , 2021 FC 361 at para 51 ; British Columbia (Attorney General) v Alberta (Attorney General) , 2019 FC 1195 at para 97 (rev'd on other grounds 2021 FCA 84 ); and Power Workers Union v Canada (Attorney General) , 2022 FC 73 at para 56 .

See also Robert J Sharpe, "Interim Remedies and Constitutional Rights" (2019) 69 UTLJ (Supp 1) at 14. [ 26 ] The Respondent cites several other cases from this Court to support its position that irreparable harm does not necessarily follow if a serious issue has been established.

I need not address these cases as none of them involves the situation in the present matter where the Court has issued a Production Order with respect to a impugned decision of risk assessment. [ 27 ] The Respondent further submits that in order to demonstrate irreparable harm, the Applicants must show that if removed from Canada, they would suffer the harm “during the time between their removal and the time at which any positive decision is made on the application for leave of the underlying decision”, relying on Adams v Canada (Minister of Citizenship and Immigration), 2008 FC 256 [ Adams ] at para 25 .

The Respondent submits that the Applicants have not done so. [ 28 ] With respect, the Respondent has misquoted Justice Shore’s comment in Adams at para 25 : Moreover, to demonstrate irreparable harm, the Applicants must demonstrate that if removed from Canada, they would suffer irreparable harm between now and the time at which any positive decision is made on their application for leave and for judicial review . The Applicants have not done so. ( Reddy v. Canada (Minister of Citizenship and Immigration) , [1999] F.C.J. No. 644 (QL) ; Bandzar v. Canada (Minister of Citizenship and Immigration) , [2000] F.C.J.

No. 772 (QL) ; Ramirez-Perez v. Canada (Minister of Citizenship and Immigration) , [2000] F.C.J. No. 724 (QL) .) [ 29 ] In this case, unlike Adams , a positive decision has already been made in the Applicants’ case by way of a Production Order. Further, I find Adams can be easily distinguished on the facts. In Adams , the applicants had their refugee claims rejected based on credibility concerns and evaded removal for two years before submitting a PRRA application. The applicants did not challenge the PRRA decision for more than a year. Here, the Applicants have never had a refugee hearing.

While their PRRA has been denied, the PRRA Decision is under challenge and will be reviewed by the Court in due course if the matter is not settled. [ 30 ] The Respondent makes several arguments in support of its position that the PRRA Decision was reasonable and as a result, the Applicants would not face irreparable harm due to the insufficient evidence of risk.

I will note however, that in their underlying application for judicial review, the Applicants made several arguments to challenge the Officer’s assessment of the Applicants’ subjective fear of persecution, as well as the Officer’s findings with respect to the objective basis for the prospective risk of persecution.

The Respondent has not responded to these submissions. [ 31 ] In addition to the evidence submitted in support of their PRRA application, the Applicants submitted new evidence to this Court that was not before the PRRA Officer; such evidence appears to undercut some of the factual findings made by the Officer.

The Respondent also makes no submission on the new evidence. [ 32 ] Therefore, I do not find that the Respondent’s submissions have impugned the Applicants’ assertion of irreparable harm. [ 33 ] As there are serious issues to be tried with respect to the Officer’s assessment of the Applicants’ risks, and in view of the evidence before me, I find the risks faced by the Applicants are not speculative. I also find that the risks of persecution faced by the Applicants should they return to Egypt constitute irreparable harm. 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 at paras 34, 38. [ 35 ] While I acknowledge the public interest in ensuring removals are carried out as quickly as possible, in a case like this, the harm to the Applicants in effecting the removal is far greater than the harm caused by delaying the removal. As such, the balance of convenience favours the Applicants.

ORDER in IMM-8248-22 THIS COURT ORDERS that the application for a stay of removal pending the determination of the Applicant’s application for judicial review is granted. "Avvy Yao-Yao Go" Judge FEDERAL COURT SOLICITORS OF RECORD

DOCKET: IMM-8248-22 STYLE OF CAUSE: FAWZI IMAN IBRAHIM SHALABY, ZEINAB ABDULKAREEM ELSAYED ALSHARQAWY v MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD VIA VIDEOCONFERENCE DATE OF HEARING: December 9, 2022 ORDER AND REASONS: GO, J. DATED: December 9, 2022 APPEARANCES : Jared Will For The Applicants Nimanthika Kaneira For The Respondent SOLICITORS OF RECORD : Jared Will Jared Will & Associates Toronto, Ontario For The Applicants Attorney General of Canada Toronto, Ontario For The Respondent