2021 FC, 2021 FC 1389

Date: 20211209 Docket: IMM-8887-21 Citation: 2021 FC 1389 Ottawa, Ontario, December 9, 2021 PRESENT: The Honourable Mr. Justice Phelan BETWEEN:DAVID LINADIApplicantandTHE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIPRespondent ORDER AND REASONS [1] This is a motion for a stay of removal following a refusal to defer removal.

While the underlying decision to be challenged is thedeferral decision, the substance of the Applicant’s proceeding is a negative PRRA, leave from which is still outstanding. [2] The core of the Applicant’s case here is that the removal of the Applicant would cause harm to the family because the wife/motherhas mental health challenges and the Applicant is needed to be present during the family immigration hearing in a few months to supplysupport for the family.

The claim that he needed to remain in Canada to be a witness appears to have been abandoned since all hearingsare presently remote. [3] This motion is governed by the tripartite test found in Toth v Canada (Minister of Employment and Immigration) (1998), (FCA), 86 NR 302 – serious issue; irreparable harm; and balance of convenience. I. Serious Issue [4] I fail to see a serious issue arising from the refusal to defer.

The Officer’s discretion is narrowly circumscribed as made clear inBaron v Canada (Public Safety and Emergency Preparedness), 2009 FCA 81. [5] The Applicant put great emphasis on the merits of the PRRA decision but was unable to convincingly articulate a serious issue inrespect of the deferral. The threshold for "“serious issue”" is heightened because of the nature of the relief. II. Irreparable Harm [6] Assuming even that a serious issue had been made out and at the elevated level required, this stay motion would fail on the issue ofirreparable harm.

The Applicant pleads irreparable harm by reason of family separation. There was a paucity of relevant psychologicalevidence on this point. The family had been separated in the past and would be again if the wife and children’s refugee claim wereupheld. The family is prepared to accept that separation. III. Balance of Convenience [7] The law favours removal as mandated by Parliament. Further, in this instance, the Applicant is seeking equitable relief yet does nothave "“clean hands”".

He repeatedly issued fraudulent documents to enter and re-enter Canada. [8] Despite the Applicant’s argument, I see nothing in the Immigration and Refugee Protection Act, SC 2001, c 27, that countenances orencourages the use of false documents. It has been recognized that many legitimate refugees have entered Canada on a false documentbut there is nothing in law or practice that suggests the use of fraudulent documents is acceptable. IV. Conclusion [9] For these reasons, this motion for a stay is dismissed. ORDER in IMM-8887-21 THIS COURT ORDERS that the motion for a stay is dismissed. "Michael L. Phelan"

Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-8887-21 STYLE OF CAUSE: DAVID LINADI v THE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP PLACE OF HEARING: HELD BY VIDEOCONFERENCE DATE OF HEARING: December 7, 2021 ORDER AND reasons: PHELAN J. DATED: december 9, 2021 APPEARANCES : Jeffrey L. Goldman For The Applicant Hillary Adams For The Respondent SOLICITORS OF RECORD : Jeffrey L. Goldman Barrister and Solicitor Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent