ORDER

UPON MOTION filed by the Applicant dated January 10, 2022, for an Order:

1. staying the Applicant’s removal to Jakarta, Indonesia, scheduled to take place on January 17, 2022, until such time as her Application for Leave and for Judicial Review of the April 23, 2020 decision denying her Pre-Removal Risk Assessment [PRRA] application (Court Docket: IMM-9053-21) and her Application for Leave and for Judicial Review of the September 2, 2021 decision denying her application for permanent residence from within Canada on humanitarian and compassionate [H&C] grounds (Court Docket: IMM-9120-21) have been finally disposed of; and

2. adding the Minister of Public Safety and Emergency Preparedness as a Respondent for the purposes of the relief sought on the motion;

AND UPON noting the Respondent agrees that for the purpose of the stay order only the style of cause should be amended to add the Minister of Public Safety and Emergency Preparedness;

AND UPON considering the Minister of Public Safety and Emergency Preparedness has authority over the enforcement of a removal order, the style of cause is accordingly amended, adding the Minister of Public Safety and Emergency Preparedness as a Respondent for the purpose of this motion only (Federal Courts Rules, r 76);

AND UPON having Directed that the Applicant’s stay of removal motion in Court Docket: IMM-9053-21 and Court Docket: IMM-9120-21 were to be consolidated into a single motion record and heard together;

AND UPON reviewing the materials, the affidavits, and the parties’ written submissions;

AND UPON hearing the parties’ oral submissions by Zoom audio conference on January 14, 2022;

AND UPON considering that the stay of a removal order is a form of extraordinary equitable relief requiring the exercise of the Court’s discretion having regard to all of the relevant circumstances;

AND UPON considering the tripartite test set out in Toth v Canada (Minister of Employment and Immigration) (1988), 86 NR 302 at para 6 (FCA) [Toth], according to which it must be demonstrated by the Applicant that:

• (i) a serious issue exists;

• (ii) the Applicant would suffer irreparable harm if the removal was not stayed; and

• (iii) the balance of convenience favours staying the removal;

AND UPON considering that the Toth test is conjunctive;

AND UPON considering that the threshold to establish a serious issue is low and the Applicant need merely demonstrate that the issues raised in the underlying proceeding are not frivolous or vexatious (RJR MacDonald Inc v Canada (Attorney General), [1994] 1 S.C.R. 311 at 335; Thanabalasingham v Canada (Minister of Public Safety and Emergency Preparedness), 2006 FC 486 at para 7);

AND UPON finding that the Applicant has failed to establish a serious issue in respect of the decision denying her PRRA application in Court Docket: IMM-9053-21 but has established a serious issue in respect of the decision denying her application for permanent residence from within Canada on H&C grounds in Court Docket: IMM-9120-21 for the reasons that follow:

I. Background

[1] The Applicant is a citizen of Indonesia and a Christian who married a man from a Muslim family in 1982. She reports her husband’s family threatened and mistreated her and that she and her three children experienced physical and verbal abuse from her husband. She states that, as a woman living in a Muslim-run country, she could not report the domestic abuse to police, that divorce was not simple and financial considerations prevented her from leaving her husband. The Applicant fled to the United States in January 2001 with her husband and two of their children after she and her husband were beaten and the Applicant sexually assaulted by Muslim extremists.

[2] Upon arrival in the United States, the Applicant made a refugee claim with her husband. The individual retained to assist her with her immigration matters was, reportedly unbeknownst to her, engaged in immigration fraud. She referred others to this individual.

[3] The Applicant’s husband was deported to Indonesia in May 2004 and the Applicant has been estranged from him since then. The Applicant left the United States and entered Canada with her children in late 2004. Before entering Canada, she learned through a friend that her immigration representative and his colleagues had been arrested on charges of human trafficking and immigration fraud. Subsequent to entering Canada, she found online articles listing her name among those connected to the fraud.

[4] The Applicant made a claim for refugee protection in Canada in 2004. The claim was refused in 2006. Leave for judicial review was dismissed by this Court in 2007.

[5] In October 2006 and June 2007 respectively, the Applicant and her children applied for permanent residence on H&C grounds and filed a PRRA. Both were refused in October 2008.

[6] In 2008, her counsel first alerted officials to the reports that charges relating to human trafficking and immigration fraud were pending against the Applicant in the United States.

[7] The refused H&C application was returned for redetermination after judicial review in July 2009. Approval in principle of the H&C application was received in November 2009. The application then went into Stage 2 processing. In 2013, Applicant’s counsel sent in police clearance certificates showing that her record was clear of any formal charges in the United States. From 2013, the H&C application remained pending.

[8] In January 2019, a letter was sent to the attention of the Applicant’s counsel outlining the concerns regarding the Applicant’s admissibility and giving her the opportunity to respond. The Applicant reports this letter was never received due to problems with email communications. The H&C application was refused, the Officer finding reasonable grounds to believe the Applicant was inadmissible for organized criminality under paragraph 37(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], and under paragraph 40(1)(a) of the IRPA for having misrepresented or withheld material facts. Leave for judicial review was refused.

[9] The Applicant initiated a second PRRA application in November 2019 and a second H&C application on July 13, 2020. Both were refused, and it is those decisions that are the bases for the Applications underlying this motion. The Applicant was notified of the negative decisions on November 22, 2021. A Direction to report for removal was issued on the same date.

II. IMM-9053-21

[10] The Applicant submits that serious issues arise in the underlying Application for Leave and for Judicial Review of the PRRA decision. It is argued that the Officer: (1) made veiled credibility findings in the guise of insufficiency findings, and (2) unreasonably required corroboration of the Applicant’s evidence and that of her daughter in the absence of any finding that the presumption of truthfulness had been rebutted.

[11] I take no issue with the Applicant’s position that the jurisprudence recognizes that credibility findings may be veiled or implied. A Court cannot rely on a decision-maker’s statement that findings are based on the sufficiency of evidence where it is alleged credibility was the issue. In such circumstances, the Court is required to look beyond the words used and consider context, logic and the findings at issue (Majali v Canada (Citizenship and Immigration), 2017 FC 275 at para 31). Having done so in this instance, no issue arises with respect to the actual nature of the Officer’s conclusions.

[12] The Officer accurately notes that the narrative provided by the Applicant in support of the PRRA recounts abuse by her estranged husband and sets out the Applicant’s explanation for not going to the police. The Officer then correctly states that to satisfy section 97 of the IRPA, an individual must demonstrate, on a balance of probabilities, that return to their home country will subject the person to the harm feared.

[13] The Officer finds the Applicant has provided little evidence that she is personally at risk. In doing so, the Officer does not discount or call into question the reported past abuse or the Applicant’s narrative. Instead, the Officer notes there is little evidence of present interest in the Applicant that would create a risk, the Applicant having been separated from her husband for 15 years with no reported contact or threats in the intervening period. The Applicant’s daughter’s letter was similarly general in nature. The letter does include a statement to the effect that the Applicant’s return to Indonesia would amount to a return to an abusive marriage, but there is nothing to indicate why this would be so, given the estranged nature of the relationship and years of no contact.

[14] In observing the lack of detail and evidence of a forward-looking risk, nothing in the surrounding context or the findings themselves suggest the Officer did not believe the Applicant. The insufficiency finding was explained and it was reasonably open to the Officer to conclude the narrative, including the letter from the Applicant’s daughter, was of low probative value for the reasons given. This, in turn, resulted in the finding that little weight was to be given to the Applicant’s narrative despite it being credible. Weight is a function of credibility and probative value. Highly credible evidence of little probative value may be accorded little weight (Magonza v Canada (Citizenship and Immigration), 2019 FC 14 at paras 29 to 31, cited in AB v Canada, 2019 FC 165 at para 36).

[15] Having concluded that the Applicant’s veiled credibility submissions raise no serious issue, there is similarly no serious issue arising from the argument that there was a breach of fairness or that corroborative evidence was unreasonably required. The Officer’s observation in respect of the absence of documentary evidence was factually accurate and not inappropriate or unreasonable in a context where the evidence presented was of low probative value and fell short of meeting the Applicant’s burden.

[16] In my opinion, there is no sound basis upon which to conclude the Officer may have relied on veiled credibility findings or unreasonably required corroborative evidence. No serious issue arises.

III. IMM-9120-21

[17] The Applicant submits that the Officer’s H&C decision raises two serious issues: (1) the Officer failed to provide any reasoning or analysis in assigning weight to the factors that were central in the H&C application, and (2) the Officer relied on an unreasonable finding that the Applicant had misrepresented the existence of the United States charges.

[18] The Respondent concedes, and I agree, that the Applicant has identified a serious issue and has satisfied the first branch of the conjunctive Toth test.

AND UPON considering that irreparable harm must be more than the harm or prejudice that is inherent in the removal process (Melo v Canada (Minister of Citizenship and Immigration) (2000), 188 FTR 39 at para 21), that an applicant must demonstrate through clear and non-speculative evidence that there is a likelihood of harm that it is more than a series of possibilities (Perez v Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 627 at paras 44–45; Atwal v Canada (Minister of Citizenship and Immigration), 2004 FCA 427 at para 14) and that the harm must be real, definite, unavoidable harm—not hypothetical and speculative harm—that cannot be repaired later (Janssen Inc v Abbvie Corporation, 2014 FCA 112 at para 24);

AND UPON concluding that the Applicant has failed to demonstrate through clear and non-speculative evidence that there is a likelihood of irreparable harm for the following reasons:

[19] The Applicant submits that irreparable harm will result should she be removed to Indonesia due to: (1) the risk of domestic violence at the hands of her estranged husband and her husband’s family, and (2) the risk of contracting serious, life-threatening complications from COVID-19 given her age and comorbidities as someone who suffers from diabetes and asthma. The Applicant argues the record establishes a prima facie risk from her estranged husband, together with a non-speculative risk arising from COVID-19 in light of her vulnerabilities.

[20] I acknowledge there is some evidence of potential risk. This evidence was considered by the PRRA Officer and is augmented to some extent in the Applicant’s affidavit supporting this motion. However, this evidence falls short of establishing, on a clear and convincing basis, a likelihood of risk. The harm posed by the Applicant’s estranged husband is asserted in general terms and suffers from the very deficiencies discussed above in respect of the PRRA decision.

[21] In the affidavit sworn in support of this motion, the Applicant states that she will be subjected to abuse if she returns to Indonesia and reports that her son, having recently returned to Indonesia, has experienced abuse by her estranged husband. Speculation will not establish irreparable harm and the son’s circumstances are far from clear. In any event, the Applicant’s evidence is that her son avoided the reported abuse by leaving the home. There is nothing to allow me to conclude the Applicant will have to reside in the same home as her estranged husband should she return to Indonesia.

[22] Turning to the COVID-19 risk, I acknowledge that the vaccination rate in Indonesia is significantly lower than in Canada. I also recognize that the Applicant’s age and her underlying medical conditions may place her at greater risk. For example, the documentary evidence indicates that moderate to severe asthma and diabetes may lead to a more serious illness. However, there is little evidence detailing the circumstances of the Applicant’s health condition beyond a document confirming diabetes and a handwritten note on the letterhead of a walk-in medical clinic. That note simply states, “she is diabetic and has asthma.”

[23] The Applicant’s documentary evidence identifies vaccination as an important preventive measure for those who may be at greater risk from COVID-19. In oral submissions, counsel for the Applicant confirmed the Applicant is fully vaccinated.

[24] The Respondent’s evidence includes recent comparative COVID-19 data by nation. This evidence demonstrates that the COVID risk may actually be less significant in Indonesia than in Canada. Canada has been identified in the Centers for Disease Control and Prevention’s January 10, 2022 report as a “Level 4” nation with a very high level of COVID-19, whereas Indonesia is identified as a “Level 1” nation with a low level of COVID-19.

[25] The evidence also details COVID-19 safety measures in place for air travel, including the health and wellness measures adopted by the air carrier the Applicant is scheduled to travel on. The identified health and wellness measures include mandatory PCR testing prior to travel, the requirement to be masked on board the aircraft and a fully vaccinated crew that must also be masked and wear personal protective equipment at all times.

[26] The evidence demonstrates that significant and serious measures are in place to mitigate the COVID-19 risks when travelling by air. The evidence also indicates that the Applicant’s risk of exposure to COVID-19 in Indonesia is not any greater, and in fact may be lower, than the risk in Canada. The evidence does not establish the COVID-19 risk in these circumstances amounts to irreparable harm.

AND UPON concluding that the Applicant’s failure to demonstrate irreparable harm is determinative of the motion in Court Docket: IMM-9053-21 and Court Docket: IMM-9120-21, and that I need not consider the balance of convenience;

AND UPON concluding that the Applicant has therefore failed to satisfy the tripartite conjunctive Toth test;

THIS COURT ORDERS that:

1. The motion is dismissed.

2. The style of cause is amended to add the Minister of Public Safety and Emergency Preparedness as a Respondent, with immediate effect, for this motion only.