2023 FC, 2023 FC 1012

Date: 20230724 Docket: IMM-9127-23 Citation: 2023 FC 1012 Toronto, Ontario, July 24, 2023 PRESENT: Madam Justice Go BETWEEN:XIAH NICHOLSApplicantandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS I. Overview [1] The Applicant seeks a stay of his removal to the Bahamas, scheduled for July 25, 2023. [2] The Applicant submitted a request to defer his removal to the Canada Border Services Agency [CBSA] on June 28, 2023 [deferralrequest].

On July 19, 2023, the Applicant filed an application for leave and for judicial review with this Court to seek a review of adeemed negative decision by the CBSA denying the Applicant’s deferral request. On July 21, 2023, an Inland Enforcement Officer[Officer] issued a decision denying the Applicant’s deferral request [Decision]. [3] Having considered the materials filed by the parties, and having heard the submissions of counsel for the parties, I am dismissing theapplication for a stay. II. Context [4] The Applicant is a citizen of the Bahamas.

He came to Canada in March 2022 and made a refugee claim based on alleged persecutionat the hands of gang members in the Bahamas. The Refugee Protection Division [RPD] denied the Applicant’s claim, finding that thematerial aspects of the Applicant’s testimony were not credible. [5] The Applicant asked for a deferral of his removal until the Immigration and Refugee Board decides on the refugee claims of hiscommon-law spouse, Ms. D and her two minor sons. Ms. D and her children filed their refugee claims in May 2022. Ms. D alleged thatshe and her children had to flee the Bahamas because Ms.

D’s physically abusive ex-husband made death threats against her. TheApplicant requested a deferral of removal based on

i) the danger the Applicant will face from Ms. D’s ex-husband in the Bahamas, ii) thebest interests of the children [BIOC] to have the Applicant with them in Canada while their refugee claims are being considered; and iii)Ms. D and the children’s psychological issues. [6] In finding that a deferral of the execution of the removal order is not appropriate in the circumstances, the Officer determined that i)insufficient evidence was submitted to show that the decision on the refugee claims of Ms.

D and her children is imminent; ii)insufficient evidence to show the children could not avail themselves to the Canadian healthcare or social system; and iii) insufficientevidence provided to warrant a deferral of removal on the basis of Ms. D’s and her children’s emotional needs. III.

Issues and Legal Test for Obtaining a Stay [7] The only issue is whether a stay of removal should be granted in these circumstances. [8] In order to obtain a stay, the Applicant must meet the tripartite test articulated by the Supreme Court of Canada in Manitoba (AttorneyGeneral) v Metropolitan Stores (MTS) Ltd, (SCC), [1987] 1 SCR 110, 38 DLR (4th) 321 [Manitoba], RJR-MacDonald vCanada (Attorney General), (SCC), [1994] 1 SCR 311, 111 DLR (4th) 385 [RJR-MacDonald], and R v CanadianBroadcasting Corp, 2018 SCC 5, which is the test to be applied to stays of removal: Toth v Canada (Minister of Employment andImmigration) (1988), (FCA), 86 NR 302, 11 ACWS (3d) 440 (FCA). [9] 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. [10] 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. [11] While in many cases, the threshold for the serious issue branch of the test is not high, in cases where the stay is requested following

a refusal to defer removal, a higher threshold applies. The Applicants need 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 [Wang]; Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81,[2010] 2 FCR 311 at para 67; and Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at para 43. IV. Analysis A. Serious Issue [12] The Applicant raises several issues arising from the Decision, namely: a.

The Officer failed to grapple with the needs of the Applicant’s common law spouse and her two children, in particular, thebeneficial impact of the Applicant’s physical presence in Canada on their mental health, despite submissions on this issue; b. In stating that Ms. D and her children can use the Canadian healthcare and social benefit systems to maintain their emotional andpsychological wellbeing and that the Applicant can maintain contact with them through teleconference or phone, the Officer failedto address the severe psychological damage that would occur to Ms.

D and the children if they were separated from the Applicant,given their pre-existing psychological issues; c. The Officer did not address the Applicant’s argument that his physical presence in Canada is necessary to support his spouseduring her refugee proceedings; and d. The failure to consider an argument advanced by the Applicant is a denial of natural justice and a breach of procedural fairness. [13] The Respondent filed affidavit materials that comprised of the Applicant’s refugee claim forms and narrative. Pointing to theApplicant’s refugee claim materials, as well as those of Ms.

D’s, the Respondent asks the Court to find the Applicant not credible, just asthe RPD had done. The Respondent points out that neither the Applicant nor Ms. D declared each other as a spouse in their respectiverefugee claim. The Respondent further argues that there is no evidence that the Applicant and Ms. D have requested to have their refugeeclaims joined, and no evidnece that Ms. D has made an application to the RPD for a vulnerable person status declaration. [14] I reject these arguments, as they did not form any part of the basis of the Decision.

The Officer also did not refuse the Applicant’sdeferral request due to any credibility concerns. I agree with the Applicant that it is not appropriate, nor is it fair, for the Respondent tocome up with reasons to supplement the Decision after the fact. [15] The Applicant needs only to establish at least one serious issue, on the elevated threshold as set out in Wang at para 10. Havingreviewed the Decision and the evidence put before the Officer, I find he has done so. B.

Irreparable Harm [16] 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. [17] Irreparable harm may arise from a risk to life, liberty, or safety that an 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, 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 (TD) ; Suresh v Canada (1998), (ON SC), 49CRR (2d) 131, 77 ACWS (3d) 163. [18] The test for irreparable harm is not one of absolute certainty: Suresh v Canada (Minister of Citizenship and Immigration), (FCA), [1999] 4 FC 206 (CA) at para 12.

However, the law requires that irreparable harm be established based onevidence, not assertions or speculation: Atwal v Canada (Citizenship and Immigration), 2004 FCA 427 [Atwal] at paras 14-15. [19] As this Court noted in Ledshumanan v Canada (Public Safety and Emergency Preparedness), 2021 FC 1463 at para 52: … [the Applicant has] to demonstrate, through clear, convincing and non-speculative evidence, that there is a realprobability of irreparable harm during that interim period, such that the extraordinary remedy of a stay of removal iswarranted ([Atwal] at para 14).

As in any stay application, the burden lies on the moving party (Canada (Attorney General)v Bertrand, 2021 FCA 103 at para 10). [20] While I do not accept all of the Respondent’s arguments with respect to the second branch of the tripartite test, I agree that theApplicant has failed to provide “clear and convincing” evidence to make the case for irreparable harm. [21] The Respondent cited Vargas v Canada (Public Safety and Emergency Preparedness), 2010 FC 938, in which the Court finds noirreparable harm from the removal due to a lack of a medical report supporting that the applicant’s child is likely suffering fromSchizophrenia, despite medical evidence submitted to the Enforcement Officer that the child hears voices and sees visions and that she isdepressed. [22] In this case, the Applicant submitted no medical report to the Officer, nor to the Court.

[ 23 ] The only evidence that the Applicant submitted to the Officer, and now relies on in his stay motion, consists of the affidavits of Ms. D and her two children, stating that they suffer from anxiety and fear of being attacked, and that the Applicant’s physical presence greatly alleviates their constant psychological suffering by providing a sense of safety and security. [ 24 ] As the Respondent rightly points out, the Applicant has not provided any accompanying psychological reports or assessment, nor has he submitted any explanation as to why such reports cannot be obtained.

I am by no means suggesting that in asserting irreparable harm of a psychological nature, an applicant must always include a third-party assessment or report. In the context of this case, however, other than the assertion made by Ms. D that she will “suffer a complete emotional breakdown” during her upcoming RPD proceeding, there is no other evidence to support the Applicant’s claim that Ms. D. and the two children will suffer irreparable harm.

I note that while the two children both attest to the beneficial impact of having the Applicant’s presence, their affidavit falls short of asserting any irreparable harm to their own wellbeing should the Applicant be removed from Canada. [ 25 ] In conclusion, the Applicant has not met the second branch of the tripartite test. C. Balance of Convenience [ 26 ] In light of my findings above, the balance of convenience favours the Respondent. ORDER in IMM-9127-23 THIS COURT ORDERS that the application for a stay of removal pending the determination of the Applicants’ application for judicial review is dismissed.

"Avvy Yao-Yao Go" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-9127-23 STYLE OF CAUSE: XIAH NICHOLS v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: HELD VIA TELECONFERENCE DATE OF HEARING: July 24, 2023 ORDER AND REASONS: GO J. DATED: July 24, 2023 APPEARANCES : Jeffrey L. Goldman For The Applicant Charles J. Jubenville 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