Docket: IMM-23638-24
Citation: 2025 FC 505
Toronto, Ontario, March 18, 2025
PRESENT: Madam Justice Go
BETWEEN: |
Inseo JUNG (AKA JUNHEE JONG) |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
ORDER AND REASONS
[1] Inseo Jung, aka Junhee Jong [Applicant] seeks a stay of removal to South Korea, scheduled for March 20, 2025, until the final determination of his application for leave and for judicial review [ALJR] of a decision dated December 16, 2024 [Decision] by a Case Processing Officer [Officer] refusing the Applicant’s application for permanent residence as a member of the Family Class [FC Class application] and request for relief from inadmissibility on humanitarian and compassionate [H&C] grounds.
[2] As I advised the parties at the hearing, I am granting the application for a stay. These are my reasons.
I. Context
[3] The Applicant is a citizen of North Korea, where he was born, and South Korea. The Applicant arrived in Canada on August 3, 2010 to seek protection. The Applicant’s lawyer for his refugee claim, who has since been disbarred, counseled the Applicant to hide his time in South Korea. The Applicant was granted refugee protection status and was later granted permanent resident [PR] status. The Applicant’s PR status was revoked in 2019, after the Immigration and Refugee Board [IRB] granted the Minister’s application to vacate his PR status for misrepresentation once his status in South Korea was discovered.
[4] The Applicant submitted an H&C application in 2019, which was refused in 2021.
[5] The Applicant and his current spouse met through work in 2018 and began living together in February 2019. The Applicant’s spouse applied to become a PR under the Express Entry Program in the fall of 2019 and became a PR in March 2022. The Applicant and his spouse submitted the FC Class application in August 2022 and submitted updated information in April 2023 with assistance from their current counsel.
[6] The Canada Border Services Agency [CBSA] scheduled the Applicant’s removal for May 15, 2023. The Applicant’s deferral request, based on the outstanding FC Class application, was denied. Justice Gleeson granted the Applicant for a stay of removal pending the final disposition of the Applicant’s application for leave and for judicial review of the decision refusing the Applicant’s request for a deferral of his removal.
[7] On June 7, 2024, the Officer issued a Procedural Fairness Letter [PFL] based on the Officer’s concern that the Applicant’s spouse did not declare him in her PR application and when she landed in Canada.
[8] The Applicant provided a response on July 18, 2024. However, the Applicant’s FC Class application was denied on July 30, 2024. The Applicant then filed an application for leave and for judicial review, which was discontinued on consent, and the July 30, 2024 decision was returned for a redetermination.
[9] On redetermination, the Officer requested additional documents in relation to proof of relationship. The Applicant submitted updated documents as well as additional submissions. On November 15, 2024, the Officer issued another PFL in which they raised concerns about the Applicant’s identity. The Applicant responded with additional evidence and submissions.
[10] In the Decision, the Officer found the Applicant had not established his identity. The Officer considered the H&C factors and found that the Applicant “has failed to integrate into the larger community”
and would “likely be able to gain a support system in South Korea through his workplace.”
Considering the Applicant’s hardship due to his mental health issues, the Officer concluded that the Applicant has not provided evidence that he accessed treatment in Canada, and that given the Applicant’s identity concerns, the Officer could not give consideration to the Applicant’s spouse as a significant part of his support system.
II. Issues and Legal Test for Obtaining a Stay
[11] The only issue is whether a stay of removal should be granted in these circumstances.
[12] 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, 38 DLR (4th) 321, RJR-MacDonald v Canada (Attorney General), [1994] 1 S.C.R. 311, 111 DLR (4th) 385, and R v Canadian Broadcasting Corp, 2018 SCC 5, which is the test to be applied to stays of removal: Toth v Canada (Employment and Immigration), [1988] 86 NR 302, 11 ACWS (3d) 440 (FCA).
[13] 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.
[14] 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.
III. Analysis
A. Serious Issue
[15] The Applicant submits that this motion raises the following issues:
The Officer committed an abuse of process and violated issue estoppel in relitigating the Applicant’s identity when the IRB had already determined that Inseo Jung and Junhee Jeong are the same person;
The Officer unreasonably doubted the Applicant’s identity;
The Officer applied the wrong test to assess the impact of removal on the Applicant’s mental health; and
The Officer applied the incorrect test to assess the Applicant’s request for H&C relief, as well as unreasonably assessed the Applicant’s H&C evidence.
[16] Counsel for the Respondent advised the Court that the Respondent has served and filed a letter not opposing leave on the underlying ALJR.
[17] The Applicant needs to establish at least one serious issue, and I find the Applicant has done so.
B. Irreparable Harm
[18] Irreparable harm refers to harm which cannot be compensated in money; it is the nature rather than the magnitude of the harm, which is to be examined: RJR-MacDonald at 341. In the context of a stay of removal, the harm usually relates to the risk of harm upon removal from Canada. It may also include specific harm that is demonstrated in regard to any persons directly affected by the removal, and who will be remaining in Canada: see Tesoro v Canada (Citizenship and Immigration), 2005 FCA 148 at para 28.
[19] The law requires that irreparable harm be established based on evidence, not assertions or speculation: Atwal v Canada (Citizenship and Immigration), 2004 FCA 427 at paras 14–15. However, the test for irreparable harm is also not one of absolute certainty: Suresh v Canada (Citizenship and Immigration), [1999] 4 FC 206, 176 DLR (4th) 296 at para 12.
[20] I find the Applicant has established, based on non-speculative evidence, that he would suffer irreparable harm if he is removed to South Korea due to his fragile mental health. The Applicant submitted a report from a psychologist Dr. Rod Day, who confirmed in two separate reports that the Applicant suffers from Major Depressive Disorder. In the more recent report, Dr. Day opined that the Applicant’s depressive symptoms have appreciably worsened since his last assessment. Of particular concern is the Applicant reporting suicidal thoughts. Dr. Day noted: “Although he is not at imminent risk of self-harm, he indicated that if he returns to South Korea, he would end his life.”
[21] The Applicant further submits that in his order dated May 12, 2023 granting the Applicant’s stay of his removal, Justice Gleeson found irreparable harm based on the same evidence from Dr. Day. In that order, Justice Gleeson found irreparable harm was established based upon, among other factors, Dr. Day’s conclusion that forcing the Applicant to return to South Korea “would constitute an extreme stressor he is ill-equipped to face … [and] he would be unable to rely on his psycho-social supports to assist him with this transition … [i]f this eventuality were to occur, it will almost surely completely overwhelm his coping capacities and precipitate a crisis in his life he is ill equipped to navigate.”
[22] I draw the same conclusion based on the same evidence, as well as the more recent report from Dr. Day speaking to his concerns about the impact of the Applicant’s removal on his well-being. As such, I find the psychological impact of removal on the Applicant constitutes irreparable harm.
[23] I also find that, in light of the apparent strength of the underlying ALJR, removing the Applicant now would render the underlying ALJR nugatory and constitutes irreparable harm: Singh Bedi v Canada (Citizenship and Immigration), 2023 FC 1469 [Singh Bedi] at paras 23-24, citing Matthew v Canada (Citizenship and Immigration), 2022 FC 924 at paras 22-23; and SKGO v Canada (Citizenship and Immigration), 2023 FC 83 at paras 22-23.
[24] As Justice Norris noted in Singh Bedi at para 23, the question of whether there is a real risk of remedial injustice if a stay is refused will help determine when mootness gives rise to irreparable harm. I find this issue to be at play here, especially in light of the enhanced likelihood of leave being granted given the Respondent’s position on leave.
[25] There is an additional concern about the loss of an effective remedy in the context of this case, where the Applicant would be prohibited from being sponsored overseas by his spouse, as the latter did not declare the Applicant as a family class member in her own PR application. By contrast, under the FC Class application, the Applicant is able to request relief on H&C grounds, as he has done so, from issues of inadmissibility under section 25 of the Immigration and Refugee Protection Act, SC 2001, c. 27.
[26] In other words, removing the Applicant at this point would give rise to remedial injustice, not only due to the loss of effective relief arising from mootness of the underlying ALJR, but also the loss of access to a future opportunity of family class sponsorship by his spouse, who is the Applicant’s only known surviving family member.
[27] For all of the above reasons, I find the Applicant meets the second prong of the tripartite test.
C. Balance of Convenience
[28] I acknowledge there is public interest in ensuring that an enforceable removal order is to be enforced as soon as possible.
[29] Like Justice Gleeson, I acknowledge the Applicant’s non-compliance with Canada’s immigration laws is a factor that deserves significant weight, but is not determinative, when assessing the balance of convenience. I adopt Justice Gleeson’s analysis in my determination of balance of convenience.
[30] Taking into consideration the irreparable harm to the Applicant’s psychological well-being on the one hand, and the inconvenience to the Respondent caused by delay in removal on the other, I find that granting the stay until the underlying ALJR is determined would be just and equitable in all the circumstances of the case.
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