Ekeanyanwu v. Canada (Citizenship and Immigration), docket IMM-3321-22

Date: 20220505

Docket: IMM-3321-22

Ottawa, Ontario, May 5, 2022

PRESENT: The Honourable Mr. Justice Fothergill

BETWEEN:

ORDER

UPON THE MOTION of Franklyn Chukwunyere Ekeanyanwu for an order staying his removal from Canada pending determination of his application for leave and judicial review of an adverse Pre-Removal Risk Assessment [PRRA];

AND UPON reading the materials filed;

AND UPON hearing counsel for both parties on May 5, 2022;

AND CONSIDERING the following:

Mr. Ekeanyanwu is a citizen of Nigeria. He is 62 years old. He arrived in Canada as a visitor in September 2016 and made a claim for refugee protection the following December. Mr. Ekeanyanwu claimed to fear persecution in Nigeria based upon his sexual orientation as a bisexual man.

Mr. Ekeanyanwu’s refugee claim was rejected by both the Refugee Protection Division [RPD] and the Refugee Appeal Division [RAD] of the Immigration and Refugee Board [IRB]. The determinative issue was credibility. Both the RPD and the RAD found that Mr. Ekeanyanwu is not in fact bisexual.

Mr. Ekeanyanwu sought leave to commence an application for judicial review of the RAD’s decision, but this was refused on April 22, 2018 (Court File No IMM-5289-17). The decision of the RAD is therefore final.

Mr. Ekeanyanwu failed to appear for a pre-removal interview with the Canada Border Services Agency [CBSA], and a warrant was issued for his arrest on January 12, 2019. The warrant was executed on April 7, 2021. Mr. Ekeanyanwu then requested a PRRA, in which he claimed to be at risk in Nigeria due to his sexual orientation, his advancing age, and his health condition. Mr. Ekeanyanwu has benign prostatic hyperplasia, but according to his doctor his symptoms are manageable with prescribed medication.

Mr. Ekeanyanwu submitted some new evidence in support of his PRRA request, consisting of an affidavit from a neighbour, letters from his brother and doctor, and a handwritten form purporting to be from the Nigeria Police indicating that he had been invited for questioning about “Homosexual / Threat to life”. The CBSA officer who conducted the PRRA [Officer] found this evidence was insufficient to overcome the adverse findings of the IRB. The Officer also found Mr. Ekeanyanwu had adduced insufficient evidence to establish that adequate healthcare would not be available in Nigeria.

Mr. Ekeanyanwu holds a bachelor’s degree in accounting and a post-graduate diploma in education. He recently married a woman in Canada. She has status as a protected person, and applied to sponsor him on April 24, 2022. Mr. Ekeanyanwu has three children from previous relationships, one of whom is in Canada on a study permit. The other two are minors, and live with their mother in Nigeria. Mr. Ekeanyanwu also has siblings in Nigeria, but he says they are elderly or infirm, and cannot assist him in re-establishing himself in that country.

A stay of removal is extraordinary equitable relief. The tripartite test in Toth v Canada (Employment and Immigration) (1988), 86 NR 302 requires that: (i) there be a serious issue to be tried, (ii) the applicant suffer irreparable harm if the stay is not granted, and (iii) the balance of convenience favour the applicant. An applicant must satisfy each branch of the test.

The test for establishing a serious issue to be tried is generally low. The issue must be neither frivolous nor vexatious.

Mr. Ekeanyanwu says the Officer improperly treated the IRB’s findings as a threshold to be overcome, and failed to assess the weight and probative value to be assigned to the new evidence. He argues that the Officer did not conduct the PRRA in the manner prescribed by the Federal Court of Appeal in Raza v Canada (Citizenship and Immigration), 2007 FCA 385 at paragraphs 12 to 13, and did not engage meaningfully with the evidentiary record.

The Respondent argues that the Officer reasonably considered the adverse credibility determinations of the RPD and RAD, both of which found that Mr. Ekeanyanwu had not established his sexual orientation as bisexual. It was open to the Officer to conclude that the new evidence was insufficient to support a finding that he is in fact bisexual and therefore at risk in Nigeria. The Officer reasonably concluded that the alleged risk to Mr. Ekeanyanwu’s health is general in nature, and would be faced by all Nigerians of similar age with the same condition.

The Officer reviewed the new evidence and provided reasons for finding it was insufficient to overcome the prior determinations of the IRB: the police invitation was handwritten and lacked details of the alleged investigation; the neighbour’s affidavit did not mention Mr. Ekeanyanwu’s sexuality; and the letter from Mr. Ekeanyanwu’s brother did not provide dates or details of the threats allegedly made against him.

I am left in some doubt whether Mr. Ekeanyanwu has raised serious issues respecting the Officer’s decision. Furthermore, Mr. Ekeanyanwu has failed to demonstrate, with clear and convincing, non-speculative evidence, that he will suffer irreparable harm if a stay of removal is not granted (Atwal v Canada (Minister of Citizenship and Immigration), 2004 FCA 427 at para 14).

The new evidence adduced by Mr. Ekeanyanwu is insufficient to overcome the findings of the RPD and the RAD respecting his sexual orientation. Mr. Ekeanyanwu has not demonstrated, on a balance of probabilities, that he is bisexual and at risk in Nigeria for that reason.

While health care in Nigeria may not be to the same standards found in Canada, Mr. Ekeanyanwu had not demonstrated that he cannot receive adequate treatment for his condition in that country. Mr. Ekeanyanwu has lived most of his life in Nigeria. He is an educated man, and he has family in both Canada and Nigeria who may be able to provide additional support if needed.

The risk that the underlying application for leave and judicial review may be rendered moot is not determinative, and does not independently constitute irreparable harm (Mohamed v Canada (Citizenship and Immigration), 2012 FCA 112 at para 32).

In light of my conclusion respecting irreparable harm, it is unnecessary to consider the balance of convenience.

THIS COURT ORDERS that the motion for a stay of removal is dismissed.

“Simon Fothergill”