Adebayo v. Canada (Public Safety and Emergency Preparedness), docket IMM-9156-21

ORDER

UPON motion filed on December 10, 2021 by Gbenga Damilare Adebayo, for an order staying the execution of a removal order until the final determination of an application for leave and judicial review (ALJR) that challenges the December 9, 2021 decision of an Inland Enforcement Officer (Officer), which denied Mr. Adebayo’s request to defer his removal scheduled for December 11, 2021;

AND UPON reading the materials filed by the parties and hearing the oral submissions of counsel for the parties by teleconference;

AND UPON considering the conjunctive, tri-partite test for a stay as set out in Toth v Canada (Minister of Employment and Immigration), [1988] FCJ No 587, 86 NR 302 (FCA) [Toth], which requires the applicant to establish that: (i) there is a serious issue to be tried; (ii) the applicant would suffer irreparable harm if the stay is not granted; and (iii) the balance of convenience favours granting the stay;

AND UPON noting that the Court must closely examine the merits of the underlying ALJR and be satisfied that the applicant has put forward quite a strong case where both the stay motion and the ALJR seek to overturn an officer’s refusal to defer removal, because an officer’s discretion to defer removal is limited, the officer’s decision is reviewed according to the reasonableness standard of review, and the stay, if granted, effectively grants the relief sought in the underlying ALJR before the merits of that application have been addressed: Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 at paras 66-67; Wang v Canada (Minister of Citizenship and Immigration), 2001 FCT 148, [2001] FCJ No 295 (FCTD);

AND UPON determining that Mr. Adebayo has not satisfied the Toth test for the following reasons:

Mr. Adebayo arrived in Canada in April 2016 and submitted a claim for refugee protection upon arrival.

The Refugee Protection Division (RPD) of the Immigration and Refugee Board refused Mr. Adebayo’s refugee claim in July 2016. Mr. Adebayo submitted an appeal of the RPD decision to the Refugee Appeal Division (RAD), which was refused in December 2016. Mr. Adebayo submitted an application for leave and judicial review of the RAD decision in January 2017; leave was denied in May 2017.

Mr. Adebayo was scheduled for removal on September 5, 2017, but he failed to appear for his removal and a warrant was issued for his arrest. On June 3, 2019, Mr. Adebayo was arrested by the police and the warrant was executed. Mr. Adebayo applied for a pre-removal risk assessment (PRRA), which was refused on January 20, 2020.

Mr. Adebayo was scheduled for removal on March 19, 2020, but it was cancelled due to the COVID-19 pandemic and travel restrictions.

On October 29, 2021, Mr. Adebayo failed to appear for a pre-removal interview and a warrant was issued for his arrest. On November 22, 2021, Mr. Adebayo was arrested and the warrant was executed.

On December 6, 2021, Mr. Adebayo submitted a request for deferral of removal, which was refused by the Officer on December 9, 2021.

On this motion, Mr. Adebayo submits the Officer erred in refusing to defer removal by ignoring evidence regarding the murder of his mother and brother in February and May 2021 and failing to view this as a risk upon return. Furthermore, Mr. Adebayo submits that the Officer was unduly focused on inconsistencies and deficiencies in the evidence, and failed to assess the actual risk as presented in the evidence. Finally, Mr. Adebayo submits that he received notice on December 1, 2021, requiring him to report for removal on December 11, 2021. As such, he requires a deferral of removal in order to allow sufficient time to obtain evidence to support his risk, and apply for a second PRRA determination, which the Officer erred in failing to appreciate as a reason for deferral. Mr. Adebayo submits that his evidence of risk filed in support of the deferral request was necessarily limited, as there was insufficient time to bring forward better information about his risk, given the short period of time between the notice of removal and the removal date.

Mr. Adebayo submits he will suffer irreparable harm as he will be killed upon return to Nigeria by the same family members that murdered his mother and brother.

Mr. Adebayo submits the balance of convenience lies in his favour as he has never abused the system and he is not a flight risk.

The respondent submits Mr. Adebayo has not made his deferral request nor a motion for a stay of his removal in a timely manner and has not provided an explanation for the last-minute nature of this motion. The respondent also submits Mr. Adebayo has not come to this Court with clean hands as he has displayed a blatant disregard for Canadian immigration laws by evading immigration officials.

The respondent submits Mr. Adebayo has not demonstrated a serious issue on the elevated threshold, but rather, has merely re-asserted the allegations of risk that were reasonably assessed by the Officer. Mr. Adebayo’s arguments ask this Court to re-weigh the evidence and come to a different conclusion.

The respondent submits irreparable harm has not been established based on clear and convincing evidence. Mr. Adebayo merely asserts, without any substantiation, that he will suffer irreparable harm if removed. The respondent also notes Mr. Adebayo’s allegation of risks were lacking in credibility, as found by the RPD and RAD, and he cannot invoke this same risk to show irreparable harm on this motion.

The respondent submits section 48 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] imposes a duty to execute a removal order as quickly as possible. In addition, Mr. Adebayo does not come to this Court with clean hands given his blatant disregard for Canadian immigration laws. Mr. Adebayo cannot ask this Court for an extraordinary remedy while disregarding the law. As such, the balance of convenience favours the removal of Mr. Adebayo as scheduled.

On this stay motion, based on the record and submissions before me, I am not persuaded that Mr. Adebayo has raised a serious issue regarding the reasonableness of the Officer’s decision to refuse the deferral request. An enforcement officer’s discretion to defer removal is narrow: Li v Canada (Minister of Public Safety and Emergency Preparedness), 2019 FC 548 at para 20.

The Officer did not ignore evidence, and I am not persuaded that Mr. Adebayo has raised a serious issue that the Officer was unduly focused on inconsistencies and deficiencies in the evidence, as he alleges. The Officer noted Mr. Adebayo’s submissions and evidence alleging that the deaths of his mother and brother were due to their support of his bisexuality, but found inconsistencies in that evidence, and the Officer was not persuaded of the authenticity of supporting documents. The Officer also noted that there was no police report or investigation report surrounding the attacks on the mother and brother, and an insufficient explanation on why the supporting affidavits were commissioned shortly before removal, even though the alleged incidents occurred in February and May 2021. The Officer concluded there was insufficient evidence to show Mr. Adebayo would be personally subjected to torture, risk to life, or inhumane treatment in Nigeria. I agree with the respondent that Mr. Adebayo’s argument regarding serious issue amounts to a request for the Court to re-weigh the evidence before the Officer and come to a different conclusion.

Also, I am not persuaded that the Officer erred and failed to appreciate that Mr. Adebayo requires a reasonable period of time to gather evidence and have his risk assessed in a second PRRA. The evidence in question relates to a risk that allegedly arose in February and May of 2021. The Officer reasonably found that Mr. Adebayo had sufficient time to submit a second PRRA application after the alleged events occurred. Mr. Adebayo provided no evidence in support of the deferral request, or in support of this motion, that would explain why efforts to obtain evidence to establish his risk were not made until the weekend before he submitted a request for a deferral of his removal. While Mr. Adebayo’s counsel argued that Mr. Adebayo has limited education and cannot be expected to know the processes available to him, Mr. Adebayo’s affidavit evidence does not state that he was unaware of the processes available to him, nor does it explain why he has not submitted a request for a further PRRA to date.

Turning to the second element of the Toth test, I am not persuaded that Mr. Adebayo has demonstrated, with clear and convincing non-speculative evidence, that he will suffer irreparable harm if he is returned to Nigeria: Glooscap Heritage Society v Canada (National Revenue), 2012 FCA 255 at para 31. The alleged risk of irreparable harm is based upon Mr. Adebayo’s bisexuality. This risk was the subject of the assessments by the RPD and RAD, and Mr. Adebayo’s application for leave to challenge the RAD’s decision in the Federal Court was dismissed. A motion for a stay of removal is not an occasion to reargue the merits of previous decisions made under the IRPA, unless there is a serious reason to doubt their correctness: Gill v Canada (Minister of Public Safety and Emergency Preparedness), 2020 FC 1075 at para 23. On this motion seeking to stay his removal, Mr. Adebayo has not provided evidence that would call into doubt the correctness of previous findings.

The Toth test is conjunctive, and in view of my findings on serious issue and irreparable harm, it is unnecessary to consider the balance of convenience.

THIS COURT ORDERS that the applicant’s motion to stay the execution of his removal order is dismissed.