Docket: IMM-12008-23
Citation: 2023 FC 1399
Montréal, Quebec, October 20, 2023
PRESENT: Mr. Justice Gascon
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BETWEEN: |
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GABRIELLA RACHELLA FOSTER |
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Applicant |
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and |
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS |
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Respondent |
ORDER AND REASONS
I. Overview
[1] The Applicant, Ms. Gabriella Rachella Foster, brings a motion to be granted an order staying the execution of her removal to Trinidad and Tobago, scheduled to take place on October 21, 2023 [Stay Motion].
[2] The application underlying this Stay Motion is an application for leave and judicial review [ALJR] of the July 31, 2023 decision of a Senior Immigration Officer [Officer] refusing Ms. Foster’s application for a Pre-Removal Risk Assessment [PRRA]. The Officer found that she was not at risk of persecution, torture, risk to life, or risk of cruel and unusual punishment if returned to her country of nationality [Decision].
[3] For the reasons that follow, Ms. Foster’s Stay Motion will be dismissed. Further to my review of the materials filed with the Court by each party, including the affidavits and the written submissions, and after hearing the oral submissions of counsel for both parties by videoconference on October 18, 2023, I am not persuaded that the facts justify the exercise of the Court’s discretion in favour of the stay sought by Ms. Foster. I instead find that, on a balance of probabilities, Ms. Foster has not met the tripartite test articulated by the Supreme Court of Canada [SCC] in RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 S.C.R. 311 [RJR-MacDonald] for the issuance of interlocutory injunctions or stays, and applied to stays in immigration matters by the Federal Court of Appeal [FCA] in Toth v Canada (Minister of Employment and Immigration) (1988), 86 NR 302 (FCA) [Toth].
II. Background
[4] The facts relevant for this Stay Motion can be summarized as follows.
[5] Ms. Foster came to Canada in March 2019. Upon her arrival, she made a refugee claim which was refused by the Refugee Protection Division [RPD] in January 2022.
[6] Ms. Foster was scheduled for removal on June 25, 2022, but she failed to appear. A warrant was issued for her arrest. She was arrested on January 6, 2023, and subsequently released on a bond with terms and conditions.
[7] On January 18, 2023, Ms. Foster submitted a PRRA application, followed by an affidavit on March 29, 2023, and submissions on May 6, 2023. In her PRRA submissions, Ms. Foster claimed to be at risk at the hands of an associate of her former employer, following her termination. No other grounds of risks were alleged in her PRRA materials.
[8] In her affidavit filed in support of this Stay Motion, Ms. Foster claims that she provided additional documents in support of her PRRA application on June 12, 2023, and on September 6, 2023. However, these documents are not included in her motion record.
[9] Ms. Foster’s PRRA application was rejected in the Decision on July 31, 2023, as the Officer found that Ms. Foster’s risk was not forward-looking and that her risk allegations had already been considered and rejected by the RPD. The Officer further determined that Ms. Foster did not adduce sufficient objective evidence to support her new allegations of risk regarding her agent of persecution.
[10] In the meantime, on May 24, 2023, Ms. Foster filed submissions in support of an application for permanent residence on humanitarian and compassionate [H&C] grounds. In her cover letter addressed to Immigration, Refugees and Citizenship Canada [IRCC], Ms. Foster stated that she was requesting that her H&C and PRRA applications be considered together, specifying that “[w]e anticipate relying on some of the evidence submitted by Ms. Foster in support of her PRRA.”
As part of her H&C submissions, Ms. Foster claimed that she would face hardship in Trinidad and Tobago on several grounds, including that she will be discriminated against as a “perceived”
member of the LGBTQ community due to her advanced age and the fact that she is not married, has no children, and dresses in a masculine way.
[11] There is no evidence on the record that Ms. Foster’s request to consider her PRRA and H&C applications together was accepted by the Canadian immigration authorities.
III. Analysis
[12] A stay order is an extraordinary equitable relief requiring special and compelling circumstances (Canada (Minister of Citizenship and Immigration) v Harkat, 2006 FCA 215 at para 10), and for which the requirements can be summarized as follows.
[13] Ms. Foster must meet the well-accepted tripartite RJR-MacDonald/Toth test. This test requires Ms. Foster to demonstrate that: i) there is a serious issue to be tried in her underlying ALJR, following a preliminary assessment of the merits of the application; ii) irreparable harm will result if the stay is not granted and her removal is not stayed; and iii) the balance of convenience favours the granting of the order and the staying of her removal (R v Canadian Broadcasting Corp, 2018 SCC 5 [CBC] at para 12).
[14] As stated by the SCC in Google Inc v Equustek Solutions Inc, 2017 SCC 34 [Google], the fundamental question is whether the granting of the injunctive relief is “just and equitable in all of the circumstances of the case,”
and this will “necessarily be context-specific”
(Google at para 25). I pause to observe that the SCC decision in Google has not changed the well-accepted three-prong test developed in RJR-MacDonald and expanded in CBC for mandatory injunctions, nor has it superimposed an additional consideration over it. However, the Google decision reinforces the principle that, in exercising their discretion to grant a stay or an interlocutory injunction, the courts need to be mindful of overall considerations of justice and equity. In sum, the RJR-MacDonald/Toth test cannot be reduced to a simple box-ticking exercise of the three components of the test.
[15] The RJR-MacDonald/Toth test is conjunctive, meaning that all three elements of the test must be satisfied in order for the Court to grant relief (Air Passengers Rights v Canada (Transportation Agency), 2020 FCA 92 at para 15; Janssen Inc v Abbvie Corporation, 2014 FCA 112 [Janssen] at para 19). None of the branches can be seen as an “optional extra”
(Janssen at para 19), and the “failure of any of the three elements of the test is fatal”
(Canada (Citizenship and Immigration) v Ishaq, 2015 FCA 212 at para 15; see also Western Oilfield Equipment Rentals Ltd v M-I LLC, 2020 FCA 3 [Western Oilfield] at para 7).
[16] That said, the three prongs of the test are not watertight compartments. They are somewhat interrelated and they should not be assessed in total isolation from one another (The Regents of University of California v I-Med Pharma Inc, 2016 FC 606 at para 27, aff’d 2017 FCA 8; Merck & Co Inc v Nu-Pharm Inc (2000), 4 CPR (4th) 464 (FC) at para 13). They are instead flexible and interconnected: “[e]ach one relates to the others and each focuses the court on factors that inform the overall exercise of the court’s discretion in a particular case”
(Wasylynuk v Canada (Royal Mounted Police), 2020 FC 962 at para 135). However, this does not mean that one of the three compartments can be completely empty and compensated by the other two being filled to a higher level. There still needs to be something on each of the three branches, and none of the elements of the test can be entirely left aside and rescued by the other two. In stays of removal sought in the immigration context, notably those involving PRRA decisions, there is sometimes overlap between the first two prongs of the RJR-MacDonald/Toth test (Gill v Canada (Public Safety and Emergency Preparedness), 2020 FC 1075 at para 22).
[17] Moreover, the exceptional nature of a stay of removal in immigration matters is reinforced by the fact that a removal interferes with the normal administrative process prescribed by Parliament in section 48 of the Immigration and Refugee Protection Act, SC 2001, c 27. This provision expressly states that, when enforceable, a removal order “must be enforced as soon as possible.”
A. Serious issue
[18] The first component of the tripartite test is whether the materials on the underlying ALJR and the evidence before the Court are sufficient to satisfy the Court, on a balance of probabilities, that the applicant has raised a serious issue to be tried. The demonstration of a single serious issue suffices to meet this part of the test (Jamieson Laboratories Ltd v Reckitt Benckiser LLC, 2015 FCA 104 at para 26).
(1) The applicable test
[19] The “serious issue”
element of the RJR-MacDonald/Toth test requires the Court to do a preliminary assessment of the strength of the merits of Ms. Foster’s underlying challenge of the PRRA Decision. The requirement of a serious issue to be tried can give rise to one of three different thresholds (Letnes v Canada (Attorney General), 2020 FC 636 [Letnes] at para 40; Okojie v Canada (Citizenship and Immigration), 2019 FC 880 at paras 69–87).
[20] In this case, since the underlying ALJR is a PRRA decision, the usual and general threshold on the first branch of the RJR-MacDonald/Toth test applies. It is a low one. At this stage, the Court should not engage in an extensive review of the merits of the underlying ALJR and must simply conclude that the issues raised in the underlying proceeding are “neither vexatious nor frivolous”
(RJR-MacDonald at pp 335–339).
[21] I pause to underline that, contrary to what the Minister appears to allege in his submissions, the Court need not be convinced that the PRRA Decision is reasonable nor that Ms. Foster has no reasonable chance of success in her underlying ALJR. A PRRA decision is not a situation where the elevated threshold for the establishment of a serious issue applies, pursuant to which applicants would need to show a “likelihood of success”
in their underlying ALJR (Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 [Baron] at para 66; Wang v Canada (Minister of Citizenship and Immigration), 2001 FCT 148 at para 11).
[22] Here, Ms. Foster claims that the following serious issues arise in her underlying ALJR: 1) the Officer allegedly erred in law by failing to consider the additional evidence she submitted in her H&C application as well as on June 12, 2023, and September 6, 2023, and more specifically, the evidence relating to the perception of her being a member of the LGBTQ community; 2) the Officer allegedly breached procedural fairness by refusing to consider her PRRA and H&C applications together, contrary to what is stated in the IRCC guidelines; and 3) the Officer allegedly made veiled credibility findings in respect of her new allegations of risk.
[23] I am not persuaded by Ms. Foster’s arguments.
(2) Ms. Foster’s submissions
[24] Regarding the alleged failure to consider the evidence relating to the perception of her being a member of the LGBTQ community, the record leaves no doubt that Ms. Foster’s PRRA submissions are totally silent on this alleged ground of risk. The PRRA application refers solely to the risk relating to the threats coming from the associate of her former employer. Furthermore, according to the evidence before me, the May 24, 2023 submissions in support of Ms. Foster’s H&C application were not before the PRRA Officer. Incidentally, Ms. Foster’s own cover letter sent with the H&C application states that the PRRA submissions may be relied upon in support of the H&C application, it does not suggest the reverse.
[25] Similarly, the evidence submitted by Ms. Foster does not allow me to conclude that the June 12, 2023, and September 6, 2023 submissions were filed in relation to her PRRA application. As indicated above, the Court has no information on the contents of these additional submissions.
[26] The Officer cannot be faulted for having failed to consult submissions that were not before them and filed in relation to a different immigration application.
[27] Turning to Ms. Foster’s allegation that the Officer breached procedural fairness by refusing to consider her PRRA and H&C applications together, I first point out that Ms. Foster’s own request to consider her two applications jointly was insufficient to place these submissions before the PRRA Officer. In this case, there is no evidence that the same officer is reviewing both applications.
[28] Ms. Foster’s reliance on the IRCC guidelines and on the doctrine of legitimate expectations is also misplaced. It is true that a legitimate expectation may result from an official practice or assurance that certain procedures will be followed as part of the decision-making process, or from the existence of administrative rules of procedure followed by a decision-maker in particular instances (Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 95). However, the practice or conduct said to give rise to the legitimate expectation must be “clear, unambiguous and unqualified.”
[29] This is not the case here. The IRCC guidelines and materials relied on by Ms. Foster simply state that “[i]f an applicant submits both an H&C and a PRRA application, both assessments may be done concurrently”
[emphasis added]. Other references in the IRCC guidelines indicate that IRCC will join H&C and PRRA applications from the same client “when possible to be processed concurrently,”
and that there will be circumstances where the principle of concurrent processing of H&C and PRRA applications will not apply. These statements fall well short of a situation giving rise to a legitimate expectation and a breach of procedural fairness: they are anything but clear, unambiguous, and unqualified.
[30] In addition, nowhere in the record is there any indication that IRCC accepted Ms. Foster’s request to consider her PRRA and H&C applications together.
[31] Finally, nothing supports Ms. Foster’s allegation that the Officer made veiled credibility findings in respect of her new allegations of risk. I accept that a decision maker’s conclusion that there is insufficient evidence to support an assertion can sometimes hide what is actually a veiled adverse credibility finding. However, the analysis first starts with the decision, and the distinction ultimately rests on the wording and context of the decision. The term “credibility”
is often erroneously used in a broader sense of insufficiency or lack of persuasive value. But these are two different concepts. A credibility assessment goes to the reliability of the evidence. When there is a finding that the evidence is not credible, it is a determination that the source of the evidence (for example, an applicant’s testimony) is not reliable. The reliability of the evidence is one thing, but the evidence must also have sufficient probative value to meet the applicable standard of proof.
[32] A sufficiency assessment goes to the nature and quality of the evidence needed to be brought forward by an applicant in order to obtain relief, to its probative value, and to the weight to be given to the evidence by the trier of fact, be it a court or an administrative decision maker. The law of evidence operates a binary system in which only two possibilities exist: a fact either happened or it did not. If the trier of fact is left in doubt, the doubt is resolved by the rule that one party carries the burden of proof and must ensure that there is sufficient evidence of the existence or non-existence of the fact to satisfy the applicable standard of proof. The evidence must always be sufficiently clear, convincing, and cogent to satisfy the balance of probabilities test (FH v McDougall, 2008 SCC 53 at paras 45–46). It cannot be assumed that, in cases where an immigration officer finds that the evidence does not establish the applicant’s claim, the officer has not believed the applicant.
[33] Here, the Officer’s reasoning and assessment is worded in terms of insufficiency of the evidence, and I cannot identify passages which could be characterized as an implicit or veiled credibility finding. A careful reading of the PRRA Decision confirms that, in the eyes of the Officer, the issue relating to Ms. Foster’s new allegation of risk regarding the associate of her former employer was one of insufficiency of evidence, not credibility.
(3) Conclusion
[34] For all those reasons, I am not persuaded that Ms. Foster’s ALJR challenging the PRRA Decision raises “serious issues”
for the purpose of this Stay Motion, in the sense of non-frivolous or non-vexatious issues. I find that Ms. Foster has thus not met the serious issue element of the RJR-Macdonald/Toth test.
B. Irreparable harm
[35] On the second component of the tripartite test, applicants need to provide clear, convincing, and non-speculative evidence establishing a real probability that they will suffer irreparable harm between now and the time their ALJR is finally disposed of, in the event that they are removed from Canada, such that the extraordinary remedy of a stay of removal is warranted (Atwal v Canada (Minister of Citizenship and Immigration), 2004 FCA 427 [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). The existence of one ground meeting the required attributes of irreparable harm is sufficient to meet the second prong of the RJR-MacDonald/Toth test (Toth at p 5).
(1) The applicable test
[36] Irreparable harm refers to the nature of the harm suffered rather than its magnitude. It is harm which “either cannot be quantified in monetary terms or which cannot be cured”
(RJR-MacDonald at p 341).
[37] Irreparable harm is a strict test. In the context of stays of removal in immigration matters, it implies a serious likelihood or jeopardy to an applicant’s (or his or her family’s) life, security, or safety, and it also requires evidence going beyond the inherent consequences of deportation (Palka v Canada (Public Safety and Emergency Preparedness), 2008 FCA 165 [Palka] at para 12; Atwal at paras 16–17; Ghanaseharan v Canada (Minister of Citizenship and Immigration), 2004 FCA 261 [Ghanaseharan] at para 13; Melo v Canada (Minister of Citizenship and Immigration) (2000), 188 FTR 39 [Melo] at para 21).
[38] The FCA has frequently insisted on the attributes and quality of the evidence needed to establish irreparable harm in the context of stays or injunctive reliefs (Canada (Health) v Glaxosmithkline Biologicals SA, 2020 FCA 135 at paras 15–16; Western Oilfield at para 11; Janssen at para 24).
[39] Irreparable harm must flow from clear and non-speculative evidence (AstraZeneca Canada Inc v Apotex Inc, 2011 FC 505 at para 56, aff’d 2011 FCA 211; Aventis Pharma SA v Novopharm Ltd, 2005 FC 815 at paras 59-61, aff’d 2005 FCA 390; Syntex Inc v Novopharm Ltd (1991), 36 CPR (3d) 129 (FCA) at p 135). Simply claiming that irreparable harm is possible is not enough: “[i]t is not sufficient to demonstrate that irreparable harm is ‘likely’ to be suffered”
(United States Steel Corporation v Canada (Attorney General), 2010 FCA 200 [US Steel] at para 7). There must be evidence that the moving party will suffer irreparable harm if the injunction or the stay is denied, “a real probability that unavoidable irreparable harm will result unless a stay is granted”
[emphasis added] (Gateway City Church v Canada (National Revenue), 2013 FCA 126 [Gateway City Church] at para16; see also Canada (Attorney General) v Robinson, 2021 FCA 39 at para 24; Arctic Cat, Inc v Bombardier Recreational Products Inc, 2020 FCA 116 at paras 19–20; Canada (Attorney General) v Oshkosh Defence Canada Inc, 2018 FCA 102 at para 25; US Steel at para 7; Centre Ice Ltd v National Hockey League (1994), 53 CPR (3d) 34 (FCA) at 52).
[40] A real probability does not mean a certainty, but the evidence must be more than a series of possibilities, speculations, or hypothetical or general assertions (Gateway City Church at paras 15–16; Atwal at para 14). Assumptions, hypotheticals, and arguable assertions unsupported by evidence carry no weight (Glooscap Heritage Society v Canada (National Revenue), 2012 FCA 255 [Glooscap] at para 31). It is also not enough “for those seeking a stay […] to enumerate problems, call them serious, and then, when describing the harm that might result, to use broad, expressive terms that essentially just assert – not demonstrate to the Court’s satisfaction – that the harm is irreparable”
(Stoney First Nation v Shotclose, 2011 FCA 232 at para 48). Quite the contrary, there needs to “be evidence at a convincing level of particularity”
demonstrating a real probability of unavoidable irreparable harm (Gateway City Church at para 16, citing Glooscap at para 31; see also Janssen at para 24).
[41] Furthermore, the FCA added that “it would be strange if a litigant complaining of harm it caused itself, harm it could have avoided or repaired, or harm it still can avoid or repair could get such serious relief”
(Janssen at para 24; see also Western Oilfield at paras 11–12).
[42] Finally, any person wishing to benefit from an extraordinary equitable remedy like a stay of removal must establish the facts supporting their application through sufficiently convincing and cogent evidence allowing the Court to conclude that, on a balance of probabilities, irreparable harm will occur. When prejudice or injustice is not supported by facts on the record, it needs to be proven by affidavit evidence (Frame v Riddle, 2018 FCA 204 at para 30; see also Pfeiffer & Pfeiffer Inc v Lafontaine, 2003 FCA 391 at para 5; Laliberte v Canada, 2004 FCA 208 at paras 4–5). In other words, “[s]omeone who wishes to benefit from an equitable remedy like a stay must at least establish the facts supporting the application”
(Trabelsi v Canada (Citizenship and Immigration), 2016 FC 585 at para 6). This is typically done through affidavit evidence provided by the applicant.
[43] In this case, Ms. Foster submits that she will suffer irreparable harm if removed to Trinidad and Tobago because of the risk she faces at the hands of the associate of her former employer. She also claims that irreparable harm will result from the fact that she is perceived as a member to the LGBTQ community. Finally, she claims that her pending ALJR challenging the PRRA Decision will become moot if a stay is not granted, and that a removal will deprive her of an effective remedy against the Decision.
[44] Again, I am not persuaded by Ms. Foster’s arguments.
(2) Ms. Foster’s submissions
(a) The risk allegations against the associate of her former employer
[45] Ms. Foster first asserts that she faces risk in Trinidad and Tobago at the hands of the associate of her former employer.
[46] Here, the irreparable harm claimed by Ms. Foster stems from risk allegations which she unsuccessfully made in her refugee claim and in her PRRA application. This risk was assessed and rejected by both the RPD and the PRRA Officer, as it lacked persuasive evidence. It cannot rise from its ashes and form the basis supporting a claim of irreparable harm now (Canada (Public Safety and Emergency Preparedness) v Shpati, 2011 FCA 286 [Shpati] at paras 41–42; Ogieriakhi v Canada (Citizenship and Immigration), 2023 FC 256 at para 11; Ledshumanan v Canada (Public Safety and Emergency Preparedness), 2021 FC 1463 at paras 62–64; Touré c Canada (Citoyenneté et Immigration), 2020 CF 6 (CanLII) at para 8).
[47] On this Stay Motion, the harm alleged by Ms. Foster on this front is the same risk that was assessed and rejected by the Officer, and no clear and convincing evidence regarding any new alleged risk in respect of her agent of persecution has been brought before the Court.
(b) The risk as a perceived member of the LGBTQ community
[48] As a second ground of irreparable harm, Ms. Foster claims that she will face harassment, violent attacks, and possibly death as someone who is perceived as a member of the LGBTQ community.
[49] However, apart from her own statement made in her affidavit in support of this Stay Motion, there is a complete dearth of evidence regarding the “perception”
that she is a member of the LBGTQ community. I pause to observe that Ms. Foster does not identify herself as a member of the LGBTQ community; she only claims that she would be “perceived”
as such. Similarly, in her H&C application, no evidence was provided to support the statement that “many people believe that she is a member of the LGBTQ community.”
[50] Ms. Foster’s own assertion that she is at risk on the basis that she is perceived to be a member of the LGBTQ community, unsupported by any other evidence, is insufficient to meet the threshold of clear, compelling, and non-speculative evidence of irreparable harm. As rightly pointed out by counsel for the Minister, Ms. Foster did not provide evidence from any other individuals suggesting she is perceived as a member of the LGBTQ community, she did not recount any past instances of being perceived as a LGBTQ member, and she did not speak to past discrimination on the basis of being perceived as LGBTQ.
[51] What was submitted by Ms. Foster does not allow me to conclude that her submissions indicating that she will face harassment and discrimination as a woman who is older, unmarried, without children, and perceived as a LGBTQ member rise to the level of clear and non-speculative evidence of irreparable harm.
(c) The mootness of the ALJR
[52] Turning to Ms. Foster’s underlying ALJR, the FCA has established that the simple fact of having a pending ALJR of a negative decision made by the Canadian immigration authorities — notably a pending PRRA litigation — or the potential mootness of an underlying ALJR does not necessarily amount to irreparable harm (Shpati at paras 37–39, 52; Baron at paras 50–51). This has been found insufficient, in and of itself, to demonstrate irreparable harm for the purpose of the tripartite test governing judicial stays of removal (Shpati at paras 34–35, 39). If the Court was to accept such an argument as a general rule or principle, it “would apply to virtually all removal cases in which a stay is sought and would essentially deprive the Court of the discretion to decide questions of irreparable harm on the facts of each case”
(El Ouardi v Canada (Solicitor General), 2005 FCA 42 at para 8; see also Mohamed v Canada (Citizenship and Immigration), 2012 FCA 112 at para 32; Ghanaseharan at para 20).
[53] I accept that there could be exceptional circumstances, in a given case, where an applicant could present evidence demonstrating that the loss of the benefit of an ALJR with respect to a PRRA decision amounts to irreparable harm within the meaning of the tripartite RJR-MacDonald/Toth test (Melo at para 22). But this would have to be analyzed under the lens of the irreparable harm test and the specific evidentiary requirement applicable to it. To satisfy a real probability of irreparable harm — as opposed to a merely hypothetical or speculative harm —, an applicant would have to demonstrate that their underlying ALJR has sufficient merit to give rise to a real risk of remedial injustice if they were required to leave Canada before it is finally determined.
[54] I have not been persuaded that this is the situation for Ms. Foster nor that there are circumstances allowing me to conclude that the impact of her removal on her underlying ALJR amounts to irreparable harm. As indicated above, Ms. Foster has not raised serious issues with respect to her challenge of the PRRA Decision.
(d) Serious issue and irreparable harm
[55] I make the following additional remarks, which remain brief in light of the urgency of this matter.
[56] Relying on Figurado v Canada (Solicitor General), 2005 FC 347 [Figurado] and other cases, Ms. Foster pleads that there is an overlap between the first and the second branches of the RJR-MacDonald/Toth test such that, if a serious issue is demonstrated with respect to a PRRA decision, irreparable harm will necessarily result. With respect, I do not agree. Simply satisfying the Court that the low threshold of “serious issue”
has been met, such that an applicant’s underlying ALJR of a PRRA decision is found to be neither frivolous nor vexatious, is certainly not a sufficient basis for concluding that being removed while the ALJR is pending constitutes irreparable harm.
[57] First, I do not believe that the oft-cited Figurado decision stands for such a general, unqualified proposition: in fact, in that decision, the Court referred to a serious issue “resulting in exposing the applicant to persecution or subjecting him personally to a danger of torture or a risk to life or cruel or unusual treatment or punishment”
(Figurado at para 45). This looks to me to go far beyond a simple “neither vexatious nor frivolous”
issue.
[58] Second, it would be quite incoherent to accept that, where the underlying ALJR relates to a negative PRRA decision, an applicant could simply establish the low threshold of serious issue — a threshold even lower than the “arguable case”
threshold used to obtain leave for judicial review (Canada (Public Safety and Emergency Preparedness) v Smith, 2019 FC 1454 at para 41) — and then piggyback on this low bar to meet the high and demanding threshold of irreparable harm (Safdar v Canada (Citizenship and Immigration), 2023 CanLII 79337 (FC) [Safdar] at para 20, citing Astatke v Canada (Minister of Citizenship and Immigration), 2014 FC 1174 at para 7).
[59] While they are not watertight compartments, the serious issue and irreparable harm branches of the RJR-MacDonald/Toth test are separate and distinct, and irreparable harm remains a matter to be assessed independently (Safdar at para 20; Al Salous v Canada (Citizenship and Immigration), 2018 FC 990, at para 7). On the second branch of the test, the Court must assess the evidence before it and make its own determination concerning the harm allegedly faced by an applicant in light of such evidence, under the lens of the irreparable harm test and the stringent evidentiary requirements applicable to it.
[60] In order to link the merits of an underlying ALJR to a finding of irreparable harm, the Court would be required to take a closer look at the merits of the underlying application than what is mandated when assessing the first prong of the RJR-MacDonald/Toth test, given that the threshold for a serious issue and the standard of proof of balance of probabilities for irreparable harm are not the same.
[61] Finally, I point out that there is no statutory provision granting an automatic stay pending the judicial review of a negative PRRA decision. Parliament thus clearly intended that failed PRRA applicants could be removed prior to their judicial review application being determined by the Court, even if they challenge the reasonableness of the PRRA decisions. In other words, simply relying on the possible or even likely unreasonableness of a PRRA decision subject to an ALJR cannot, in and of itself, be enough to meet the high threshold of irreparable harm.
(3) Conclusion
[62] In summary, I am not persuaded that, on a balance of probabilities, the evidence put forward by Ms. Foster on the various grounds of harm she has identified reaches the high threshold of convincing and non-speculative evidence showing a real probability that irreparable harm will occur, or a serious likelihood or jeopardy to her life, security, or safety, or to her family’s, in the interim period leading to a decision on her underlying ALJR.
C. Balance of convenience
[63] In light of my conclusions on serious issue and irreparable harm, I do not need to consider the last prong of the RJR-MacDonald/Toth test, namely, the balance of convenience.
IV. Conclusion
[64] For the above reasons, Ms. Foster’s Stay Motion is dismissed. The conditions of the RJR-MacDonald/Toth test for the issuance of a stay are not met and there are no exceptional circumstances justifying the intervention of the Court and the exercise of my discretion to grant the relief sought.
[65] Furthermore, in the specific context of this case and bearing in mind all the relevant circumstances, I am not satisfied that it would be just and equitable to grant the stay of removal sought by Ms. Foster.
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