2023 FC, 2023 FC 1117

Date: 20230818 Docket: IMM-8825-23 Citation: 2023 FC 1117 Ottawa, Ontario, August 18, 2023 PRESENT: The Honourable Madam Justice Tsimberis BETWEEN: JIAMING WEN Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent ORDER AND REASONS UPON considering the Applicant’s motion for a stay of execution of his removal to Shanghai, China, scheduled to take place on August 19, 2023 at 1:25 pm; AND UPON considering the Applicant’s Motion Record filed on August 3, 2023 and the Respondent’s Motion Record filed on August 11, 2023; AND UPON hearing the submissions of counsel for both parties on August 15, 2023 via videoconference and considering all the arguments advanced on behalf of the parties; The motion for a stay of the execution of the removal of the Application is dismissed.

I. Background [ 1 ] The Applicant is a citizen of the People’s Republic of China [China] who has been in Canada on and off since 2014, as a foreign student studying in Canada pursuant to student permits. He last entered Canada on March 13, 2019 on a student visa issued from February 26, 2019 to July 31, 2020, and a passport issued by China with an expiration date of October 8, 2023. [ 2 ] On February 10, 2021, the Applicant drove through a stop sign in downtown Toronto, and crashed his vehicle into a TTC sign. Police officers on patrol determined that he had been driving under the influence of a drug.

He was taken to hospital in an ambulance, where he refused a demand for a drug evaluation by a Peace Officer. The Applicant was subsequently charged with impaired operation/conveyance, and failure to submit to a drug evaluation/Peace Officer demand pursuant to the Criminal Code . [ 3 ] On May 24, 2022, the Applicant pled guilty and was convicted of impaired operation/conveyance at a Toronto courthouse ( s. 320.14(1) of the Criminal Code ). He was ordered to pay a fine and was prohibited from driving for 12 months.

The other offence for which he was charged for failing to submit to a Drug Evaluation by a Peace Officer was withdrawn in exchange for the plea of guilty to impaired driving. [ 4 ] On October 21, 2022, the Applicant was issued a deportation order by the Canada Border Services Agency [CBSA] for serious criminality. As a result, the Applicant was entitled to apply for a Pre-Removal Risk Assessment [PRRA], which he submitted in December 2022.

In his PRRA, the Applicant alleged a fear of persecution or cruel and unusual treatment or punishment in China due to his criminal conviction, his drug addiction, and his political opinions regarding China’s drug laws and his beliefs in the legalization of cannabis. [ 5 ] The Applicant’s PRRA was refused by reasons dated May 30, 2023 and by letter dated May 31, 2023 [Decision]. It is this Decision that is the subject of the underlying application for leave and judicial review [ALJR].

The pre-removal risk assessment officer [PRRA Officer] assessed both ss. 96 and 97 of the Immigration and Refugee Protection Act , SC 2001, c 2 [ IRPA ] and concluded that the Applicant would not be subject to risk of persecution, torture, risk to life or risk to cruel and unusual treatment or punishment if returned to China. [ 6 ] Under s. 96 of the IRPA , the PRRA Officer found the Applicant had not established a nexus to a Convention ground as the Applicant did not, on a balance of probabilities, establish that his fear is by reason of his political opinions on Chinese drug laws.

Under s. 97 of the IRPA , the PRRA Officer rejected the Applicant’s assertion that he would be at risk in China based upon his drug-related criminal conviction in Canada because the Applicant did not provide evidence to support his allegations that Chinese authorities would find out about his conviction and that the inevitable result would be to enter his personal information into the Drug User Internet Dynamic Control and Early Warning System, or simply the Dynamic Control System [DCS].

Furthermore, the PRRA Officer held that the Applicant failed to show the risk he alleged was personalised because in a peer-reviewed journal

article submitted by the Applicant, it is stated that as of 2019, 4.7 million people registered in the DCS, suggesting that the risk of being placed in the system is generalized to anyone in China who is caught using, or is suspected to have been using illicit drugs.

[7] The Applicant now asks this Court to stay his removal from Canada until the disposition of the within application for leave and if theleave is granted, until the application for judicial review is disposed of by the Court or the Applicant’s PRRA application is re-determined by a different officer.

In order to succeed on a motion to stay the enforcement of a removal order, the Applicant must meetthe following tripartite test, namely that: (1) there is a serious issue to be tried (that is, the underlying ALJR raises a serious issue); (2) hewould suffer irreparable harm, that is not quantifiable and non-compensable in damages in its absence, if the stay were not granted; and(3) the balance of convenience 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), (1988) 86 NR 302, (FCA); R v Canadian Broadcasting Corp, 2018 SCC 5 at para 12). [8] The tripartite test is conjunctive, meaning that, to be entitled to relief, an applicant must satisfy all three elements of the test (JanssenInc v Abbvie Corporation, 2014 FCA 112 at para 14 [Janssen]).

None of the three branches can be seen as an “optional extra” (Janssenat para 19), and the “failure of any of the three elements of the test is fatal” (Canada (Citizenship and Immigration) v Ishaq, 2015 FCA212 at para 15; Western Oilfield Equipment Rentals Ltd v M-I LLC, 2020 FCA 3 at para 7). A stay is an extraordinary remedy whichrequires the Applicant to demonstrate special and compelling circumstances that would justify exceptional judicial intervention (Harkat vCanada (Minister of Citizenship and Immigration), 2006 FCA 215 at para 10; Zuniga v Canada (Citizenship and Immigration), 2016 FC992). II.

Serious Issues [9] For the first branch of the tripartite test - “serious issue to be tried” – the threshold is generally low. The issue must be neitherfrivolous nor vexatious. The Applicant raises three issues with the Decision, namely he alleges that the PRRA Officer (

i) erred in theassessment of risk due to his criminal conviction by overlooking “key evidence” and particularly by ignoring Applicant’s evidence abouthow his criminal record would come to the attention of authorities in China; (ii) erred in its assessment of evidence in having read onlyone

article and ignoring six other articles; and (iii) misapprehended the s. 96 risk alleged. [10] Based on my review of the record, I have not been persuaded that the Applicant has established a serious issue regarding the PRRAOfficer’s Decision: i. While the Applicant argues the PRRA Officer ignored the Applicant’s evidence about how his criminal record would come to theattention of the authorities in China, the Officer’s finding was that there was insufficient evidence to support the Applicant’s assertion ofwhy he would have to disclose his Canadian criminal conviction.

Indeed, and as submitted by the Respondent, the Applicant speculatesabout when and where he may have to do so, and has not pointed to evidence to show the “inevitable result of this would be to placehim” in the DCS such that he would then be subject to a detoxification system that has come under international criticism. TheApplicant’s evidence before the Officer only stated he “believed” this result would occur, and his evidence only asked the Officer todraw a “reasonable inference” this would be the case. ii.

The Applicant’s arguments also fail to address the PRRA Officer’s alternative and important finding that the alleged risk was not arisk personal to the Applicant as the Officer reasonably noted that as of 2019, there were 4.7 million people registered in the DCS,which showed this was a generalized risk to anyone in China caught using or suspected of using illicit drugs. As such, theApplicant was not a person in need of protection under s. 97(1)(b)(ii) of the IRPA. iii. While the Applicant argues a serious issue regarding the Officer’s assessment of the evidence, claiming the Officer “appears tohave read only one

article cited by the applicant’s PRRA counsel” while ignoring six others, a careful review of the PRRAOfficer’s Reasons shows this is inaccurate.The Officer notes that the “(

a) Letter from the Applicant’s lawyer” was considered,which letter contains specific references to the six other articles mentioned by the Applicant and concern the DCS.The Officer’sreasons explicitly mentioned those sources, noting: “To support this statement, the applicant has provided a letter from this lawyerthat cites several sources on this topic.” Accordingly, the PRRA Officer considered the evidence and found it was lacking.

ThePRRA Officer is not obligated to specifically mention each and every piece of evidence in his decision; he is presumed to haveconsidered it and in this case, explicitly made reference to the general contents. iv.

While the Applicant argues a serious issue with the PRRA Officer misapprehending the risk alleged regarding his views aboutdrug use in China, he has not shown the Officer’s finding that he lacked a nexus to a Convention ground was made in error.Neitherhas the Applicant challenged the PRRA Officer’s finding that he failed to submit any evidence to suggest Chinese citizens face arisk of persecution for holding any of the beliefs the Applicants says he holds about drugs and China’s drug laws. [11] While I need not address the remaining two parts of the tripartite test discussed above given its conjunctive nature and given myfinding that the Applicant has failed to meet the first (serious issue) component, I will nonetheless address the remaining part of the Tothtest for the edification of the Applicant.

III. Irreparable Harm [12] The Applicant pleads that its arguments on a serious issue to be tried meet the low threshold, and thus, if the Court accepts that aserious issue has been raised, then irreparable harm follows. I do not agree with the Applicant that irreparable harm necessarily follows.The proper authoritative approach has been set out by the Federal Court of Appeal in Selliah v. Canada (MCI), 2004 FCA 261 and ElOuardi v. Canada (Solicitor General), 2005 FCA 42, which found that the mere presence of a serious issue with a PRRA Officerdecision is not determinative of irreparable harm.

Rather, the Court must assess the evidence before it and make its own determinationconcerning the risks faced by the Applicant. [13] This second branch of the tripartite test – “irreparable harm” - places the onus on the Applicant to demonstrate through clear andconvincing 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 real probability that unavoidable irreparable harm willresult (Glooscap Heritage Society v Canada (National Revenue), 2012 FCA 255 at para 31 [Glooscap]; Erhire v Canada (Public Safetyand Emergency Preparedness), 2021 FC 941 at para 65 and the cases cited therein). Irreparable harm must consist of more than a seriesof possibilities and cannot be based on assertions, speculation, assumptions or hypotheticals (Atwal v Canada (Minister of Citizenshipand Immigration), 2004 FCA 427 at paras 14-15; Glooscap at para 31).

The notion of irreparable harm refers to the nature of the harmsuffered rather than its magnitude.

It is harm which “either cannot be quantified in monetary terms or which cannot be cured” (RJR-MacDonald at p 341). [14] Irreparable harm, for the purposes of a stay application, is a stringent test that requires clear and convincing evidence of a seriouslikelihood of jeopardy to an applicant’s life or safety (Pierre v Canada (Public Safety and Emergency Preparedness), 2020 FC 887;Mondelus v Canada (Public Safety and Emergency Preparedness), 2011 FC 1138 at paras 70-73; Schenker v Canada (Citizenship andImmigration), ; Yu v Canada (Citizenship and Immigration), ; Golubyev v Canada (Citizenshipand Immigration), 2007 FC 395 at para 12). [15] The risk alleged by the Applicant on the facts is speculative and is not supported by clear and convincing evidence.

There wasinsufficient evidence that the Applicant’s Canadian criminal record would come to the attention of the Chinese authorities or that theApplicant would inevitably be placed in the DCS database and be subjected to the controls the Applicant alleges. Also, there is noevidentiary support that the Applicant would be at risk of irreparable harm due to being part of the DCS (like millions of Chinese citizensthat are registered in the DCS) and due to the beliefs he holds about drug use or due to his alleged addiction.

There is simply no clear andconvincing evidence demonstrating a real probability of unavoidable irreparable harm. [16] Absent any unreasonableness in the PRRA Officer’s evaluation of the alleged risk, the same allegations of risk that have beenassessed and rejected do not ground irreparable harm. In the present case, the allegations are essentially the same as those raised beforethe PRRA Officer.

It is well settled that risks previously assessed and rejected cannot be relied upon to demonstrate irreparable harm in asubsequent stay motion (Singh v Canada (Minister of Citizenship and Immigration), 2005 FC 145 at para 14; Eid v Canada (Citizenshipand Immigration), 2010 FC 639 at para 85; Goshen v Canada (Public Safety and Emergency Preparedness), 2011 FC 1380 at para 6;Spooner Romero v Canada (Minister of Citizenship and Immigration), ; Idahosa v Canada (Citizenship andImmigration), ). IV.

Balance of Convenience [17] On the third part of the test, I would have found that the balance of inconvenience favours the Minister who represents the public’sinterest that the IRPA is enforced in an efficient, expeditious, and fair manner.

Section 48 of the IRPA provides that the removal order beenforced “as soon as possible.” In this case, the exclusion order has been in place since May 31, 2023. [18] 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-8825-23 THIS COURT ORDERS that the Applicant’s motion to stay the execution of his removal to China is dismissed. "Ekaterina Tsimberis" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-8825-23 STYLE OF CAUSE: JIAMING WEN 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: AUGUST 18, 2023 APPEARANCES : SHAHRYAR MAZAHERI For The Applicant MEVA MOTWANI For The Respondent SOLICITORS OF RECORD : MAZAHERI LAW TORONTO, ONTARIO For The Applicant ATTORNEY GENERAL OF CANADA DEPARTMENT OF JUSTICE CANADA TORONTO, ONTARIO For The Respondent