2023 FC, 2023 FC 1129

Date: 20230824 Docket: IMM-9742-23 Citation: 2023 FC 1129 Toronto, Ontario, August 24, 2023 PRESENT: Madam Justice Go BETWEEN:SAJENTHAN GANESHALINGAMApplicantandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] The Applicant, a citizen of Sri Lanka, seeks a stay of his removal to Sri Lanka, scheduled for August 31, 2023. [2] The Applicant submitted a request to defer his removal to the Canada Border Services Agency [CBSA] dated July 26, 2023, withadditional submissions on July 31, 2023 [deferral request].

On August 2, 2023, an Inland Enforcement Officer [Officer] issued a decisiondenying the Applicant’s deferral request [Decision]. On the same day, the Applicant filed an application for leave for judicial review[ALJR] with this Court to seek an order to quash the Decision. [3] Having considered the materials filed by the parties, and having heard the submissions of counsel for the parties, I am granting theapplication for a stay. I. Context [4] The Applicant arrived in Canada in January 2012 and made a refugee claim. The Applicant’s claim was refused and his subsequentappeal was denied.

An order for the Applicant’s removal was issued but the Applicant failed to appear for his removal interview inMarch 2015. An arrest warrant was issued against the Applicant. Between 2015 and 2018, the Applicant evaded the CBSA. [5] In July 2018, the Applicant filed an application for permanent residence on humanitarian and compassionate grounds [H&C]. Shortlythereafter, the Applicant presented himself to the CBSA, which then executed the arrest warrant. The Applicant subsequently filed a Pre-Removal Risk Assessment [PRRA].

The Applicant’s H&C application and PRRA application were both refused in April 2020. [6] In September 2022, the Applicant married his wife, a Canadian citizen. Their daughter was born in April 2023. In June 2023, theApplicant and his wife filed a spousal sponsorship application for his permanent residency in Canada [spousal sponsorship application],and on July 31, 2023, the Applicant received a file number for his spousal sponsorship application. [7] In his deferral request, the Applicant asked for a deferral of removal until a decision is rendered on his spousal sponsorshipapplication. II.

Issues and Legal Test for Obtaining a Stay [8] The only issue is whether a stay of removal should be granted in these circumstances. [9] 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). [10] 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. [11] 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. [12] 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 [Wang]; Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81,[2010] 2 FCR 311 [Baron] at para 67; and Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at para 43.

III. Analysis A. Serious Issue [13] The Applicant raises two general issues arising from the Decision, namely, that the Officer unreasonably assessed the best interestof the child [BIOC] and that the Decision is unreasonable. [14] With respect to the BIOC, the Applicant argues, in part: a. The Applicant’s wife relies on him for basic communication with the outside world due to language barriers and anxiety owing toa history of domestic abuse by her former spouse. The Applicant is the sole liaison between the mother/child and the broadersociety; b. The Applicant’s wife is on maternity leave.

Her monthly maternity benefit is less than their monthly rent. The Applicantcontributes to the shortfall to allow the family to sustain a certain level of living. c. The Applicant’s wife’s family in Canada cannot support her and her child, and she cannot depend on her friends to undertake thekind of support that the Applicant provides for her and their child; d. Removal of the Applicant will result in lengthy separation between the child and the father, which may be permanent if theApplicant is not granted a discretionary Authorization to Return to Canada if the child remains in Canada.

Alternatively, if theApplicant’s child were to accompany the Applicant to Sri Lanka, she would be forced into a dangerous environment as Sri Lankais in a state of crisis whereby basic necessities of living – including food, fuel, and medical care – are no longer available. e. The Applicant’s child was only born in April 2023. Her interests have never before been assessed by any immigration authority.

ABIOC assessment was explicitly called for in the context of the Applicant’s request to defer his removal. [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, as well as the evidence and submissions put before the Officer, I find the Applicant has done so. [16] In coming to this conclusion, I have considered the Respondent’s submissions.

Specifically, I acknowledge that the Respondenttakes issue with the Applicant’s reliance on Huang v Canada (Public Safety and Emergency Preparedness) 2018 FC 446 [Huang] tosuggest that in instances where a child’s best interests have never been before addressed, an enforcement officer’s assessment must berobust.

The Respondent cites Williams v Canada (Public Safety and Emergency Preparedness), 2020 FC 683 [Williams] to note that thisCourt has tempered the finding in Huang. [17] I need not decide if Huang “constitute[s] a significant modification of the principles enunciated in Baron”, as suggested in Williams,at para 15.

This Court has consistently found that BIOC is a consideration in the context of a deferral of removal request, as confirmed byDouglas v Canada (Public Safety and Emergency Preparedness), 2019 FC 902: [16] The depth of the consideration of a child’s best interest does not alter the general nature of the analysis. Whether theshort-term or long-term BIOC is being considered, it will always be contextual and there will always be a multitude offactors.

The only difference is the time period under consideration – short-term or long-term. [18] Indeed, Williams confirms that: [15] ….Enforcement officers are required to be alert and sensitive regarding the BIOC evidence that is relevant to theimminent short-term harm and special exigent circumstances affecting the child arising from an applicant’s removal. [19] The Applicant argues that the lack of BIOC analysis by the Officer makes it impossible to know what the Officer considered to bethe child’s interests, let alone best interests.

The Applicant further submits that the Officer failed to engage with the evidence, includingthe country condition evidence, when they concluded that the Applicant’s wife and child could consider “splitting their time between SriLanka and Canada” until they have confirmation on their spousal sponsorship application, and that the family could remain connectedwith “web based platforms” and phone calls, etc. [20] I need not address all of the Applicant’s arguments.

It is suffice to say that I find the Applicant’s argument that the Officer’sanalysis of the BIOC of the Applicant’s now four-month-old daughter is not responsive to the submissions and evidence he providedconstitutes a serious issue: Galusic v Canada (Public Safety and Emergency Preparedness), 2020 FC 223. B. Irreparable Harm [21] 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. 341.

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. [22] 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. [23] 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 of

Employment 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. [24] As the Respondent concedes, certain issues addressed under the first prong are, in this case, relevant in the second prong of thetripartite test. [25] The Respondent argues, however, that the irreparable harm issues raised by the Applicant are largely inherent in the context ofremoval.

I disagree. [26] While limited, there is some evidence – including the Applicant’s wife’s affidavit and a letter from her family doctor – that suggeststhe Applicant’s wife suffers from anxiety, and relies on the Applicant to accompany her to conduct everyday tasks and attend all medicalappointments for herself and their child.

This suggests a heightened level of dependency that would make family separation, even on ashort-term basis, more difficult to cope with by the Applicant’s wife. [27] The Respondent cites Singh v Canada (Citizenship and Immigration), [Singh] to argue that the difficultiesfacing the Applicant’s wife and child resulting from the Applicant’s removal would not amount to irreparable harm.

Singh, in my view, isdistinguishable given the applicant in that case was found to be ineligible for a spousal sponsorship application as he had returned toCanada without an authorization, and there was a lack of evidence on record about any unusual or urgent medical, emotional orpsychological difficulties or challenges facing the applicant’s wife or child.

In the case at hand, the Applicant included a letter from hiswife’s physician confirming that the Applicant takes his wife and their newborn to all medical appointments, and that without theApplicant’s support, there would be “difficulty both from a mental health and child health perspective.” [28] I will pause to note that the evidence as to the Applicant’s wife’s English speaking-ability is in dispute. I will not consider theApplicant’s new evidence before me to counter the Officer’s finding on this issue.

Nor will I consider the Respondent’s additionalsubmission about the wife’s citizenship status to bolster the Officer’s finding she has some English capacity in view of her previous jobexperience as a telemarketer. [29] While poor economic conditions in country of removal may not give rise to irreparable harm, the county conditions evidence in thiscase demonstrates a serious economic crisis in Sri Lanka that is becoming an alarming health crisis due to the severe shortage of essentialmedications, which in turn is affecting the health of newborns, among other vulnerable populations.

Returning to Sri Lanka with theApplicant would thus put the health and safety of the Applicant’s daughter at risk. [30] I also find that the uncertainty surrounding the family separation exacerbates the difficulties facing the Applicant’s wife and child.As this Court notes in Francisco v Canada (Citizenship and Immigration), [Francisco]: [11] …Irreparable harm is about the nature of the harm and not its scope nor reach.

As Justice Gascon explained atparagraph 49 in Letnes v Canada (Attorney General), 2020 FC 636: “The irreparability of the harm is not measured by thepound.” I am satisfied that the separation of the spouses and the challenge and uncertainty of obtaining an Authorization toReturn if the underlying application is granted constitute irreparable harm in these particular circumstances. [31] Like Francisco, the Applicant would also require an Authorization to Return, even if his wife were to commence an overseassponsorship application immediately, and even if the application were to be granted approximately fourteen months from now. [32] The combined effect of the uncertainty of obtaining an Authorization to Return, the ongoing health crisis in Sri Lanka which makestravel to that country unsafe for the Applicant’s wife and child, and the immediate difficulties facing the Applicant’s wife in caring fortheir child should the Applicant be removed, constitute irreparable harm. [33] As such, the Applicant has met the second branch of the tripartite test.

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 publicinterest to be weighed together with the interests of private litigants: Manitoba, paras 34, 38. [35] I acknowledge there is a public interest in the prompt removal of persons whose refugee claims have been denied.

I also agree withthe Respondent that the Applicant has had the benefit of several immigration applications and assessments since then. [36] I take into account the fact that the Applicant has previously evaded immigration removal for three years. But I also note that since2018, the Applicant has been reporting regularly with CBSA.

While I do not disagree with the Respondent that, in general, applicantsmust not be rewarded for their misconduct, the Applicant in this case has mitigated his past transgression by voluntarily presentinghimself to the CBSA in 2018 and by staying in compliance for the last five years. [37] The Respondent argues the Applicant has come to the Court with unclean hands, relying on cases that are largely distinguishable onthe facts. I note, for instance, that there is no evidence that the Applicant has any criminal record in Canada, nor is there any finding ofmisrepresentation by immigration authorities.

In any event, the Respondent confirms that they are not asking the Court to not hear themotion based on unclean hands, but only to take the Applicant’s past conduct into consideration, which I have done. [38] Taking into account the harm to the Applicant’s wife and child on the one hand, and the Applicant’s past transgression and theinconvenience to the Respondent caused by delay in removal on the other, I find that granting the stay until the underlying ALJR isdetermined would be just and equitable in all the circumstances of the case. The balance of convenience thus lies with the Applicant.

ORDER in IMM-9742-23 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-9742-23 STYLE OF CAUSE: SAJENTHAN GANESHALINGAM v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: HELD VIA VIDEOCONFERENCE DATE OF HEARING: August 22, 2023 ORDER AND REASONS: GO J.

DATED: August 24, 2023 APPEARANCES : Naseem Mithoowani For The Applicants Amy King For The Respondent SOLICITORS OF RECORD : Naseem Mithoowani Mithoowani Waldman Immigration Law Group Toronto, Ontario For The Applicants Attorney General of Canada Toronto, Ontario For The Respondent