Buza v. Canada (Citizenship and Immigration), docket IMM-5012-20

ORDER

UPON MOTION by the Applicant for an order staying his removal to South Korea, scheduled for February 10, 2021, pending the determination of his application for leave and for judicial review of the refusal of his Humanitarian and Compassionate (H&C) application on September 24, 2020;

AND UPON considering the written submissions of the parties;

AND UPON hearing oral submissions from legal counsel for the parties on February 9, 2021, via videoconference;

AND UPON considering that in order to be successful on a motion for a stay of the removal order, the Applicant must meet the three part test outlined in Toth v Canada (Minister of Employment and Immigration) (1988) 86 N.R. 302 (F.C.A.) [Toth]; namely, (1) that there is a serious issue to be tried; (2) that the Applicant will suffer irreparable harm if the stay is not granted; and (3) that the balance of convenience favours granting the stay;

AND UPON noting that the Toth test is conjunctive, meaning that the Applicant must satisfy all three elements of the test in order to be entitled to relief: Janssen Inc v Abbvie Corporation, 2014 FCA 112, at para 14;

AND UPON noting that in order to establish the existence of a serious issue in the underlying application for judicial review, the applicant need only show that the application is neither frivolous nor vexatious (Copello v Canada (Minister of Foreign Affairs), [1998] F.C.J. No. 1301);

AND UPON being satisfied that the issues raised by the Applicant with the H&C decision are neither frivolous nor vexatious particularly in relation to the consideration of the evidence of his risk in returning to South Korea; accordingly, the Applicant has satisfied the first branch of the Toth test;

AND UPON noting with respect to the irreparable harm part of the Toth test, that the evidence establishes that the Applicant experienced a traumatic childhood that was marred by violence, hunger and displacement. The evidence of Dr. Agarwal is that the Applicant has had “chronic suicidal thoughts” for many years with an attempted suicide. Similar to Konate v Canada (Public Safety and Emergency Preparedness), 2018 FC 703, I am satisfied that the Applicant’s psychological issues are real, are longstanding, and are not being raised for the first time at the risk of removal from Canada. In fact, the evidence is that the Applicant has dealt with these psychological issues for many years. Further, I note that the Applicant has no family or social safety net in South Korea to assist in his reintegration. I am therefore satisfied that the removal of the Applicant would likely cause him irreparable harm;

AND UPON considering that in the circumstances and in the absence of compelling reasons that outweigh the Applicant’s suicide risk (Konate para 24), the balance of convenience favours the Applicant;

THIS COURT ORDERS that the motion is granted and the Applicant’s removal is stayed until this Court finally disposes of the pending application for leave and for judicial review.