Docket: IMM-14926-24
Citation: 2024 FC 1317
Toronto, Ontario, August 23, 2024
PRESENT: Madam Justice Go
BETWEEN: |
Charles Edward MWANGI |
Applicant |
and |
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS |
Respondent |
ORDER AND REASONS
I. Overview
[1] Mr. Charles Edward Mwangi [Applicant] seeks a stay of removal to Kenya, scheduled for August 25, 2024, until the final determination of his application for leave and for judicial review [ALJR] of a decision dated August 21, 2024 by an Inland Enforcement Officer [Officer] denying the Applicant’s request to defer the execution of the removal order [Decision].
[2] Having considered the materials filed by the parties, and having heard the submissions of counsel for the parties, I am dismissing the Applicant’s motion for a stay of his removal.
II. Context
[3] The Applicant is a citizen of Kenya. The Applicant came to Canada in 2019 and made a refugee claim based on fear of persecution from his relatives due to his bisexuality. The Refugee Protection Division [RPD] rejected the Applicant’s claim on credibility grounds, finding the Applicant had not established his identity as a bisexual man. The Refugee Appeal Division [RAD] upheld the RPD’s finding and dismissed the Applicant’s appeal. The Applicant filed an ALJR of the RAD decision. The Court declined to grant leave.
[4] The Applicant submitted an application for permanent resident status on humanitarian and compassionate grounds [H&C application] in April 2024.
[5] The Applicant’s Pre-Removal Risk Assessment [PRRA] application was refused on May 3, 2024. The Applicant filed an ALJR for the PRRA decision, along with a request for an extension of time, on August 8, 2024.
[6] In the deferral request, the Applicant asked for his removal to be deferred for 10 months on two grounds:
To allow the Applicant to see through his pending judicial review of his refused PRRA; and
To allow the Applicant to receive a first stage decision regarding his pending H&C application.
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 (Attorney General) v Metropolitan Stores Ltd, [1987] 1 S.C.R. 110 RJR-MacDonald v Canada (Attorney General), [1994] 1 S.C.R. 311, and R v Canadian Broadcasting Corp, 2018 SCC 5, which is the test to be applied to stays of removal: Toth v Canada (Minister of Employment and Immigration) (1988), 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 judicial review raises a serious issue; (ii) the moving party will suffer irreparable harm if the stay is not granted and the removal order is executed; 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, the question is whether granting the injunction would be just and equitable in all the circumstances of the case:”
Google Inc v Equustek Solutions 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 Applicant needs to demonstrate a “likelihood of success”
or “quite a strong case”
in regard to the underlying application for leave and for judicial review: Wang v Canada (Minister of Citizenship and Immigration), 2001 FCT 148, [2001] 3 FC 682 at para 11; Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81, [2010] 2 FCR 311 at para 67.
IV. Analysis
[12] As the Respondent points out, the Applicant does not challenge the Officer’s findings that a pending ALJR of a negative PRRA and a pending H&C application are not impediments to removal. The Respondent also notes an outstanding H&C decision must either be imminent or delayed for an officer to grant a deferral, neither of which is the case here. Further, the Respondent submits the Officer’s findings were reasonable and supported by the jurisprudence. I agree.
[13] In this case, the Officer noted in the Decision that they sought to identify through the submissions whether the Applicant has presented sufficient new objective, non-speculative evidence not previously reviewed to justify a deferral. The Officer concluded that they have not been provided with sufficient new evidence of risk, noting the previous RPD and RAD decisions that found credibility to be the determinative issue and that these decisions were upheld by the Court. The Officer noted in particular the previous determinations that the Applicant’s claim as a bisexual man was not credible. The Officer noted the recent photos and messages were insufficient to overcome the findings “where the decision makers had access to all of the evidence to make their findings.”
The Officer also found that participating in a pride parade and showing support for the LGBTQ+ community is not indicative of a person’s sexual preferences or identification.
[14] The Officer’s findings were reasonably supported by the record and the case law. I find the Applicant fails to raise a serious issue regarding the Officer’s findings.
[15] As to the Applicant’s argument that he submitted “new and old evidence”
in his deferral request that demonstrates a sur place claim in Canada based on his sexual orientation, I find this argument does not raise a serious issue. The Applicant does not explain in his written submission what constitutes his sur place claim.
[16] At the hearing, the Applicant clarified that his sur place claim was based on the media interviews the Applicant gave to the Canadian media about his deportation and his allegations of risk on the basis of bisexuality. The Applicant submitted that he would be at serious risk upon his return if these news articles were to come to the attention of the Kenyan authorities.
[17] I reject this argument for several reasons. First, the Applicant did not put the issue of sur place claim before the Officer, and thus the Officer did not err by not addressing this issue. Second, it is not the Court’s role to address an issue that was not raised by the Applicant in support of his deferral request. Third, the cases the Applicant cite are distinguishable on the facts.
[18] In his written submission the Applicant cites Zambrano Torres v Canada (Public Safety and Emergency Preparedness), 2024 CanLII 7632 (FC) [Torres]; Abolupe v Canada (Citizenship and Immigration), 2023 CanLII 97651 (FC) [Abolupe] and Adeyemi v Canada (Public Safety and Emergency Preparedness), 2022 CanLII 116844 [Adeyemi].
[19] I find none of these cases assists the Applicant. Torres involved a sur place claim as the applicant submitted evidence about his relationship with a new partner in Canada. In the matter before me, the RPD heard from the Applicant’s alleged partner in Canada and found his testimony did not establish the Applicant’s sexual orientation due to numerous inconsistencies in the evidence. In Abolupe, there was a serious issue due to the fact that the applicant was unrepresented at previous proceedings. In Adeyemi, the Court granted the stay motion not because of the serious issue arising from the applicant’s sexual identity, but because of his mental health conditions.
[20] At the hearing, the Applicant also cited Singh v Canada (Minister of Citizenship and Immigration), 2023 FC 127, a stay motion based on a negative PRRA decision. There, the issue of sur place claim was put squarely before the PRRA officer, as the applicants in that case submitted new evidence about their activities in Canada that post-dated their negative refugee claims; it is thus factually different from the case at hand.
[21] At the hearing, the Applicant also raised two other issues with the Decision, namely, the Officer misnamed the Applicant in one line of the Decision, and that the Decision was only three pages long. I agree with the Respondent that the misnaming of the Applicant was not material and the length of the Decision is not determinative of its reasonableness.
[22] In conclusion, the Applicant fails to raise a serious issue with regard to the Decision on an elevated threshold. On that basis alone, the motion must fail.
[23] In any event, I also find the Applicant fails to demonstrate irreparable harm. The law requires that irreparable harm be established based on evidence, not assertions or speculation: Atwal v Canada (Minister of Citizenship and Immigration), 2004 FCA 427 at paras 14-15. The Applicant fails to advance any arguments on irreparable harm other than providing a general description of the law and asserting that he has a sur place claim. The Applicant’s assertion that his activities in Canada and the news articles would come to the attention of the Kenyan authorities is speculative, at best.
[24] In light of the above, the balance of convenience favours the Respondent.
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