Jimenez v. Canada (Public Safety and Emergency Preparednes), docket IMM-6592-21

Date: 20211001

Docket: IMM-6592-21

Ottawa, Ontario, October 1, 2021

PRESENT: The Honourable Justice Fuhrer

ORDER

UPON motion filed by the Applicant on September 28, 2021, for an order staying the execution of her removal to Mexico scheduled for October 4, 2021 (further to the Applicant’s Application for Leave and Judicial Review [ALJR] filed on September 28, 2021 seeking to challenge the then “deemed refusal” by the Canada Border Service Agency [CBSA] of the Applicant’s request to defer her removal, the CBSA’s decision on the deferral request having issued on September 29, 2021), pending the disposition of any of the following: (i) the ALJR; (ii) the Applicant’s permanent residency application on humanitarian and compassionate [H&C] grounds filed on September 23, 2021; (iii) and the disposition of her family’s refugee claims;

AND UPON reviewing the material filed by the parties and hearing their oral submissions;

AND UPON dealing preliminarily with the Respondent’s request to amend the style of cause to change the Respondent from the Minister of Citizenship to the Minister of Public Safety and Emergency Preparedness, to which request the Applicant did not object, and the Court therefore granting the Respondent’s request effective immediately;

AND UPON noting the following relevant background:

1. The Applicant is a Mexican citizen who arrived in Canada on November 3, 2019 with her two minor children, her husband and two adult children having fled Mexico for Canada about a year earlier. Since that time, the Applicant has been residing with her family in Canada providing emotional and social support, as well as assistance with daily chores, while her husband supports the family financially.

2. Upon the Applicant’s arrival in Canada in November 2019, a CBSA officer noted that, on a previous trip to Canada in 2018, the Applicant attempted to cross the border illegally from Canada to the US, and was deported to Mexico as a result. The officer offered the Applicant a chance to return to Mexico voluntarily which she accepted, with the return flight scheduled for November 5, 2019.

3. The Applicant failed to report for the scheduled departure and, hence, an exclusion order was issued.

4. In February 2020, the Applicant and her family filed a claim for refugee protection but the Refugee Protection Division deemed the Applicant ineligible. She also was detained that same month, further to an arrest warrant, and released just under two weeks later.

5. Corresponding with her detention, the Applicant was offered an opportunity to apply for a pre-removal risk assessment [PRRA] which she pursued.

6. She received a negative PRRA decision in April 2021. A Direction to Report for removal was issued on September 20, 2021 which she requested be deferred. The deferral request was denied by a CBSA Officer on September 29, 2021.

7. The Applicant’s husband and children are awaiting the scheduling of a hearing to determine their refugee protection claims.

AND UPON considering that to succeed on the motion to stay a removal order, the Applicant must meet the three-part test, namely, that (1) there is a serious issue to be tried, (2) the applicant would suffer irreparable harm if the stay is not granted, and (3) the balance of convenience favours granting the stay [Toth test]: Manitoba (A.G.) v Metropolitan Stores Ltd., 1987 CanLII 79 (SCC), [1987] 1 S.C.R. 110; RJR-MacDonald v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311; and Toth v Canada (Minister of Employment and Immigration) (1988) 86 N.R. 302 (F.C.A.) [Toth];

AND UPON noting that the Toth test is conjunctive, meaning that, to be entitled to relief, an applicant must satisfy all three elements of the test: Abbvie Corp. v. Janssen Inc., [2014] F.C.J. No. 471 at para. 14.

AND UPON considering that a stay is an extraordinary remedy that requires the Applicant to demonstrate special and compelling circumstances to warrant such judicial intervention: Harkat v. Canada (Minister of Citizenship and Immigration), 2006 FCA 215 para 10;

AND UPON noting that an elevated standard for the establishment of a serious issue (i.e. a “likelihood of success”) applies on a stay motion arising from a refusal to defer an applicant’s removal because the stay, if granted, effectively grants the relief sought in the underlying judicial review application: Wang v. Canada (Minister of Citizenship and Immigration), 2001 FCT 148, [2001] F.C.J. No. 295 (T.D.) at paras 8-11;

AND UPON also noting that in determining whether a serious issue exists in a case such as this, the Court must consider that the discretion to defer the removal of a person is limited, and that the standard of review of an enforcement officer’s decision is that of reasonableness, with the result that an applicant must put forward quite a strong case: Baron v. Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 [Baron], at para. 67; Abu Aldabat v Canada (Citizenship and Immigration), 2021 FC 277 at para 25;

AND UPON considering that an often inevitable consequence of enforcement of a removal order is hardship (such as loss of employment) and disruption of family life, but that such consequence does not constitute irreparable harm: Baron, above at para 69;

AND UPON also considering that the pendency of an applicant’s application for leave and judicial review, or other litigation, does not constitute a bar to the enforcement of a valid removal order in that it is not a serious issue nor does it constitute irreparable harm; a leave application will proceed regardless of where an applicant is located: Akyol v Canada (Minister of Citizenship and Immigration), 2003 FC 931 at para 11;

AND UPON noting further that a stay motion generally is “not the appropriate forum to reargue [potential] harms that have been adequately assessed by previous decision-makers”: Medina Cerrato v Canada (Public Safety and Emergency Preparedness), 2018 FC 1231 at para 23;

AND UPON carefully considering the parties’ evidence and their submissions about whether the Applicant has met the three-part Toth test, taking into account the applicable elevated standard for establishing a serious issue;

AND UPON finding, among other things, that a significant portion of the Applicant’s evidence on this stay motion was included in the Applicant’s H&C application but was not included in her request to defer removal, and thus, was not before the CBSA officer who refused the request, it being “well established that a removal officer is not required to conduct a preliminary or mini H&C analysis and to assess the merits of an H&C application”: Newman v Canada (Public Safety and Emergency Preparedness), 2016 FC 888 at para 19;

AND UPON also finding the decision in Calabrese v Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 723, on which the Applicant seeks to rely regarding the harm occasioned by family separation, distinguishable and of no assistance because of the length of time Mr. Calabrese spent in Canada as a permanent resident and the degree of his reliance on his family, professional and community supports to remain drug-free and potentially crime-free;

AND UPON also finding that, although the Applicant alleges that she would be returning to Mexico effectively as a single woman if she is removed and points to potential dangers that could entail, her PRRA application discloses a large family (father and several siblings) residing in the place to which she would be returning;

AND UPON also finding that, notwithstanding the ongoing COVID-19 pandemic, the Applicant has failed to demonstrate, on a balance of probabilities, that she will suffer irreparable harm associated with the pandemic, if she is removed to Mexico, being fully vaccinated with no evidenced, underlying health issues: Keir v Canada (Citizenship and Immigration), 2020 FC 387 at para 18;

AND UPON concluding that the Applicant has failed to satisfy all three parts of the Toth test, and has not established either a strong case or compelling reasons warranting judicial intervention in the circumstances;

THIS COURT ORDERS that:

1. The style of cause is amended to change the Respondent from the Minister of Citizenship and Immigration to the Minister of Public Safety and Emergency Preparedness, effective immediately.

2. The Applicant’s motion is dismissed.