2022 FC, 2022 FC 1235

Date: 20220828 Docket: IMM-8256-22 Citation: 2022 FC 1235 Ottawa, Ontario, August 28, 2022 PRESENT: Madam Justice Go BETWEEN: DANILO DE LEON Applicant and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent ORDER AND REASONS [ 1 ] The Applicant seeks a stay of his removal to the Philippines, scheduled for August 29, 2022, until a decision is made on the Applicant’s Pre-Removal Risk Assessment [PRRA] and until the Applicant’s medical condition is diagnosed.

The motion is brought incidental to a pending application for leave and judicial review with respect to a decision concerning the Applicant’s request for a deferral of his removal. The decision dated August 25, 2022 by an Inland Enforcement Officer [Officer] denying the Applicant’s request to defer the execution of the removal order [Decision] was rendered after the filing of the herein leave application and the motion for stay. [ 2 ] The Applicant was advised of his removal on July 22, 2022. He waited for a month before making his deferral request, and did not bring this motion until August 25, 2022.

I fully endorse the Respondent’s comments that the Applicant’s conduct is contrary to this Court’s practice guidelines, and is prejudicial to the Respondent, not to mention depriving the Court of the benefit of a full record of the Applicant’s case. [ 3 ] The Applicant submits incomplete information in support of his stay motion. Most critically, while the Applicant asks for his removal be stayed until a decision is made on the Applicant’s PRRA, the Applicant has not included a copy of his PRRA application in his motion record.

Through an affidavit dated August 27, 2022 filed after the filing of the stay motion, the Applicant provided some explanations about his delay in requesting for deferral and some information about his current and previous PRRA applications.

In response, the Respondent filed a copy of the Applicant’s prior PRRA decision. [ 4 ] Notwithstanding my concerns about the Applicant’s conduct, I am of the view that the appropriate and just solution in the circumstances of this case is to exercise my discretion to hear the motion, and to grant an interim interlocutory stay until the final determination of his application for leave and for judicial review of the Decision. I. Context [ 5 ] The Applicant is a 51-year-old citizen of the Philippines. The Applicant came to Canada in 2009 as a Temporary Foreign Worker.

He was authorized to remain in Canada until December 2, 2016. [ 6 ] The Applicant has a long immigration history including an application for Permanent Residency through the Alberta Provincial Nominee Program refused on January 11, 2021, a PRRA rejected on January 30, 2019, and an application for a Temporary Resident Permit denied on November 24, 2021. The Applicant has also received two prior deferrals of his removal. [ 7 ] The Applicant had been charged but acquitted of several serious offences under the Criminal Code [ Code ].

However, he was found guilty of failing to comply with conditions under section 145(3) of the Code rendering him inadmissible under s.36(2)(

a) of the Immigration Refugee Protection Act. [ 8 ] In his deferral request dated August 22, 2022, the Applicant stated that he is a well-known community activist and the chairperson of Migrante Canada, a non-profit organization advocating for the rights of migrant workers.

The Applicant stated that the Government of the Philippines has “red tagged” Migrante Canada as a communist cum terrorist organization because the organization has criticized that Government on their human rights records. [ 9 ] The Applicant also stated that he has been a “vociferous opponent” of the Government of the Philippines; that the news about his removal has reached the “higher offices” of the Government of the Philippines; and that agents of that government have begun raids on the Applicant’s house in his home country. Further, the Applicant stated he has initiated a PRRA application.

The Applicant argued an abrupt removal from Canada without waiting for the outcome of the PRRA application could have serious consequences for his life, as he is actively sought by the Government of the Philippines, which is known for engaging in extra judicial killings under the guise of “war on drugs”. [ 10 ] In the Decision, the Officer noted that the Applicant “does not currently have an active PRRA Application and therefore the basis of his request is defunct.” The Officer also noted that the Applicant’s risk of returning to the Philippines “was assessed through the [PRRA] process”.

As such, the Officer consider these risks “already reviewed and decided upon by authorities with much greater risk assessment specialization”.

II. Analysis The Court’s Discretion to Hear the Applicant’s Stay Motion [11] In a letter dated August 25, 2022, the Respondent submitted that the Court should refuse to entertain the Applicant’s stay motion.The Respondent noted that the Applicant waited for more than a month to make their deferral request, before submitting a last-minutestay motion, leaving the Respondent with no time to respond. [12] I share the Respondent’s concerns. I also note there are several defects in the stay motion.

First, the Notice of Motion states that theApplicant requests for a stay until a decision is made on the Applicant’s PRRA application and his medical diagnosis, yet the underlyingapplication for leave for judicial review is in regard to a deemed decision not to defer his removal. Second, in the deferral request, theApplicant did not provide any reasons for the delay in his request for deferral. Finally, as noted above, the Applicant has not included acopy of his PRRA application in his deferral request.

His most recently filed affidavit contained only email communications confirmingthat he has submitted a PRRA application to the Vancouver Backlog Reduction Office, but not a copy of the PRRA application itself. [13] As the Respondent also rightly submitted in their letter, this Court does not have to entertain the Applicant’s last-minute attempt tostay in Canada, especially when the motion was filed less than two business days before his scheduled removal. [14] As noted by Justice Norris in Nsungani v.

Canada (Minister of Citizenship and Immigration), 2019 FC 1172 [Nsungani] [16] The Court certainly discourages last-minute motions for stays of removal. They do not give the Minister an adequate opportunity torespond, the Court may not receive a complete record of relevant material from either party, and the Court may not have sufficient timeto review the materials in advance of the hearing, or to properly consider and decide the motion.

For these reasons, bringing stays ofremoval at the last minute is generally not in the interests of justice: see Beros v Canada (Citizenship and Immigration), 2019 FC 325 atparas 12-13; Khan v Canada (Public Safety and Emergency Preparedness), 2018 FC 1275 at paras 12-13; and Nsumbo v Canada(Citizenship and Immigration), (FC). The Court therefore has the discretion to decline to hear a stay motion that isnot brought in accordance with the requisite timelines.

A key consideration is whether the moving party could reasonably have broughtthe motion sooner. [15] In his affidavit dated August 27, 2022, the Applicant stated that he became depressed upon learning of his removal, and did notleave his house for almost a week.

The Applicant also did not have any financial resources to hire a representative and relied on financialhelp he received through a campaign for donation by Migrante, which finally enabled him to hire a lawyer in the week of August 22,2022. [16] The Applicant also explained that in his previous PRRA application, he only submitted the PRRA forms with no supportingdocuments, and wrote his statement on the forms thinking that it was just an application for him to stay in Canada temporarily. [17] I take all of these factors into account - the Applicant’s checkered immigration history, his criminal inadmissibility, his migrantrights activism, and his explanations for the delay - in finding that it would be in the interests of justice to hear the case.

I find support forthis position in Nsungani, at paras 19-20, and also in Yuan v Canada (Minister of Public Safety and Emergency Preparedness), [2019]F.C.J. No. 1629, where the Court exercised its discretion to hear a last-minute stay request, notwithstanding the applicant’s inadequateexplanation for the delay.

Should the Court grant a stay of removal? [18] The issue before me is whether a stay of removal should be granted in these circumstances. [19] In order to obtain a stay, the Applicant 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). [20] 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. [21] 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). A.

Serious Issue [22] 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; Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81, [2010] 2FCR 311 at para 67; and Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at para 43. [23] I find there are two serious issues to be tried. [24] First, the Officer’s finding that the Applicant does not have an active PRRA turned out to be an error.

Although the Officer should

not be faulted for committing this error, given the close proximity between the Applicant’s filing of the PRRA and his deferral request, itwas an error nonetheless. This error influenced the Officer’s belief that the Applicant’s basis of his deferral request is defunct, making ita serious issue to be tried. [25] Second, I find the Officer’s reliance on the Applicant’s previous PRRA rejection as the basis for refusing his deferral request to bean error. The Applicant submitted his first PRRA application in November 2018, and the PRRA was refused on January 30, 2019.

Sincethen, two new developments have taken place. First, the Applicant became Chair of Migrante Canada in July 2021.

Second, according toa support letter signed by four officers of Migrante Canada dated August 15, 2022, the Government of the Philippines “passed the Anti-Terror Law in June 2022 [which] applies to Filipinos overseas who are regarded as “terrorists” just by simply speaking up on issues ofoverseas Filipinos. [The Applicant’s] work with Migrante Canada will surely put him and his family in danger of imprisonment withtrumped-up charges, or tortured, and worst, killed”. [26] As these events took place after the Applicant’s previous PRRA decision, the new risks, if any, associated with these events wouldnot have been evaluated in the initial PRRA process.

The Officer’s reliance on the expertise of PRRA officers for the risk assessmentconcerning the Applicant’s removal was thus misplaced. [27] The Respondent asks the Court to take note of the fact that in the previous PRRA application, the Applicant was alleging acompletely different set of facts.

As such, the Respondent submits that the Officer was being put in a position of trying to believe therisks that the Applicant is claiming now. [28] I note however that the Officer did accept that the Applicant “has played a significant role in Migrante Alberta and has participatedin activism supporting Filipino Migrant worker rights.” The Officer also acknowledged “the news articles presenting risks that humanrights activists are facing [in] the Philippines.” Thus, the fact that the Applicant has relied on a different set of allegations in his previousPRRA in my view strengthens his argument that the Officer fettered her discretion by relying on the previous PRRA assessment, insteadof conducting an assessment, albeit limited, of the new risks the Applicant faces as a migrant rights activist.

B. Irreparable Harm [29] 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. [30] 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. [31] 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: LYB 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 (T.D.) ; Suresh v Canada (1998), (ON SC), 49CRR (2d) 131, 77 ACWS (3d) 163. [32] There is some non-speculative evidence before the Officer to suggest that the Applicant would face irreparable harm should hisremoval be enforced at the present time.

In addition to the above quoted letter from Migrante Canada, the Applicant has also providedevidence about his well-publicized activism vis-à-vis temporary foreign workers in Canada as a member of Migrante Canada. There isalso evidence indicating Migrante as a group has been labelled by officials of the Government of the Philippines as a communist andterrorist group. [33] The Respondent submits there is no evidence demonstrating that the Government of the Philippines is aware of the Applicant’sactivism.

I note however, that the news about the Applicant’s removal has received more than half a million views on social media, andthe Applicant has received online threats associated with such news. [34] I further note that the Officer attempted to draw a line between Migrante and Migrante Alberta, stating there is minimal concreteevidence showing the latter has been also labelled as a communist or terrorist group by the Philippines Government. I am not asconfident that the authorities in the Philippines would pay as much attention to such distinctions and find no basis for the Officer’sconclusion in this regard.

Nor do I find comforting, as the Officer did, the plea made by the President-elect’s national security adviser-designate urging a stop to the practice of red tagging, given that the Anti-Terror Law is still in place in the Philippines. [35] More importantly, the fact that there has been change in circumstances concerning the Applicant that may adversely affect the risksof his removal and such risks have yet to be properly assessed constitutes irreparable harm. [36] As Justice Shore stated in Win v Canada (Minister of Citizenship and Immigration), 2008 FC 398: [33] Where an Applicant would face some risk of serious mistreatment, the extent of which has yet to be evaluated, on returnto his country, these circumstances amount to irreparable harm. (Monemi v.

Canada (Solicitor General), [2005] F.C.J. No.10 (QL), by Justice James O'Reilly.) [37] Also as the Federal Court of Appeal confirmed in Savunthararasa v. Canada (Minister of Public Safety and EmergencyPreparedness), 2016 FCA 51: [7] It is common ground that, based upon jurisprudence of this Court, when evidence of some new risk is put forward, an enforcement

officer may defer removal when the failure to defer will expose the person seeking deferral to a risk of serious personal harm. More specifically, an enforcement officer may defer removal where an applicant establishes a risk of death, extreme sanction or inhumane treatment that has arisen since the last assessment of risk ( Baron v. Canada (Minister of Public Safety and Emergency Preparedness ) , 2009 FCA 81 , [2010] 2 F.C.R. 311 , at paragraph 51 ; Canada (Public Safety and Emergency Preparedness) v. Shpati , 2011 FCA 286 , [2012] 2 F.C.R. 133 , at paragraphs 41-43 ).

Enforcement officers are not to conduct a full assessment of the alleged risks, nor come to a conclusion as to whether the person is at risk. Rather, officers are to consider and assess the risk-related evidence in order to decide whether deferring removal is warranted in order to allow a full assessment of risk. [ 38 ] While I note that the Applicant submitted his PRRA application on the same day as his deferral request, I disagree with the Respondent’s characterization of his request for deferral as indefinite. The Applicant’s initial PRRA was decided within two months.

In any event, I am not tying my order to the outcome of the Applicant’s PRRA decision. Rather, I am granting a stay only until the underlying leave application is decided. C.

Balance of Convenience [ 39 ] 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. [ 40 ] While there is a public interest in the prompt removal of persons with a negative immigration history like the Applicant, Canada also has an interest in ensuring its fulfilment of domestic human rights and constitutional laws, as well as its compliance with international human rights treaties. [ 41 ] The Federal Court of Appeal has found that a request to defer removal and the right to seek a stay of removal in the Federal Court are among the ways in which a claimant’s interests under

section 7 of the Canadian Charter of Rights are protected: Kreishan v Canada (Citizenship and Immigration) , 2019 FCA 223 at para 122 . [ 42 ] I acknowledge the Applicant does have a criminal history. I note however, while the charges he once faced were serious, ultimately he was convicted of a lesser charge. The Applicant certainly has not done himself any favour by treating his previous PRRA application in a cavalier fashion and by waiting until the 11 th hour to make a deferral request. He could have, and should have, reached out for help sooner.

However, I also take into account counsel’s submission that the Applicant has always complied with the Canada Border Services Agency’s reporting requirements and in that sense, thus come to the Court with “clean hands”. [ 43 ] Ultimately, there is a broader public interest of ensuring the new risks facing the Applicant are properly assessed. This was not done here. As such, the balance of convenience lies with the Applicant. [ 44 ] I acknowledge that my decision will disrupt the removal arrangements that are already in place.

My decision should not be seen as an endorsement of the Applicant’s conduct in the context of the deferral request. In light of all the circumstances of the case, I order a stay of the Applicant’s removal on an interim interlocutory basis. ORDER in IMM-8256-22 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-8256-22 STYLE OF CAUSE: DANILO DE LEON v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: HELD VIA TELECONFERENCE DATE OF HEARING: August 28, 2022

ORDER AND REASONS: GO J. DATED: August 28, 2022 APPEARANCES : Manraj Sidhu For The Applicant Justine Lappointe For The Respondent SOLICITORS OF RECORD : Manraj Sidhu Nanda & Company Edmonton, Alberta For The Applicant Attorney General of Canada Edmonton, Alberta For The Respondent