Date: 20211208

Docket: IMM-9034-21

Citation: 2021 FC 1382

Ottawa, Ontario, December 8, 2021

PRESENT: Mr. Justice Sébastien Grammond

BETWEEN:

LYDIA ICOYITUNGIYE

Applicant

and

THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

Respondent

ORDER AND REASONS

[1] Ms. Icoyitungiye brings a motion for the stay of her removal to the Netherlands, scheduled for tomorrow, December 9, 2020. I am dismissing her motion, as there is no evidence that her removal will cause irreparable harm to her Canadian-born daughter.

I. Background

[2] Ms. Icoyitungiye was born in Burundi. Before reaching adult age, she was accepted by the Netherlands as a refugee and eventually became a citizen of that country. In 2015, she entered Canada as a foreign worker. In 2020, however, her status was not renewed.

[3] In 2019, Ms. Icoyitungiye gave birth to a daughter who is a Canadian citizen.

[4] Ms. Icoyitungiye and her husbanad applied for permanent residence based on humanitarian and compassionate [H&C] considerations, but their application was refused in January 2021. The husband filed a new H&C application, which is still pending, apparently based on his status as a “guardian angel” during the COVID-19 pandemic, apparently including Ms. Icoyitungiye as a dependent. Yet, Ms. Icoyitungiye is separated from her husband. It is unclear when the separation took place. There is evidence suggesting that it may be before the birth of the daughter. In particular, Ms. Icoyitungiye has been living with her sister, who is a Canadian citizen, since 2019.

[5] On September 22, 2021, Ms. Icoyitungiye received notice that the Canada Border Services Agency [CBSA] would remove her to the Netherlands. She requested that the removal be deferred for six months, in order to make living arrangements for her and her daughter in the Netherlands. The CBSA officer agreed to delay removal until the end of November only. On November 4, Ms. Icoyitungiye was informed that her removal was scheduled for December 2.

[6] On November 12, Ms. Icoyitungiye informed CBSA that she no longer intended to bring her daughter with her to the Netherlands and that she would leave her in the care of her sister and brother-in-law. On November 23, she informed CBSA that her sister and brother-in-law had made an application to the Provincial Court of Alberta for guardianship of her daughter, which is scheduled to be heard on February 11, 2022.

[7] On November 30, Ms. Icoyitungiye, through her former counsel, applied to a CBSA officer for deferral of her removal, mentioning that she would have no objection to leave Canada once there is a court order granting guardianship of her daughter to her sister. The same day, the CBSA officer denied the request. After reviewing the history of the removal proceedings, the officer concluded as follows:

CBSA has provided the applicant with a sufficient amount of time for her to address the aforementioned issues. Ms. Lydia ICOYITUNGIYE made the choice to leave her daughter in Canada and it is not CBSA’s responsibility to compensate for her lack of preparedness.

[8] The record before me shows that the relationship between Ms. Icoyitungiye and CBSA was adversarial, to say the least. Given the manner in which I am deciding this motion, it is unnecessary to engage in a detailed review of their interactions. It is enough to say that, on December 1, after Ms. Icoyitungiye refused to provide proof of vaccination, CBSA detained her and tested her for COVID-19. Her removal was postponed to December 9.

[9] On December 3, Ms. Icoyitungiye attended her 48-hour detention review. The Immigration Division member asked whether she intended to file a motion for a stay in the Federal Court. Ms. Icoyitungiye and her former counsel were unaware of this possibility. Ms. Icoyitungiye retained new counsel on December 6, who filed an application for judicial review of the decision to refuse deferral and the present motion for a stay on December 7.

II. Analysis

[10] In Gill v Canada (Public Safety and Emergency Preparedness), 2020 FC 1075 [Gill], I reviewed the legal framework governing requests for deferral and motions for stay of removal. I refer the reader to that case and I will not repeat the discussion here. In a nutshell, the applicant must show (1) that the underlying application for judicial review shows “quite a strong case;” (2) that the applicant’s removal would cause irreparable harm; and (3) that the balance of convenience favours the applicant. Where the underlying application concerns a decision to refuse deferral, I noted that the issue often boils down to a single question: “whether the CBSA officer unreasonably failed to take into consideration harm that fits into a recognized category, which counterbalances the obligation to effect removal as soon as possible”: Gill, at paragraph 22.

[11] This case is best approached from the angle of irreparable harm. If Ms. Icoyitungiye’s removal is unlikely to cause irreparable harm, she cannot obtain a stay. In this regard, irreparable harm “cannot be merely hypothetical or speculative”: Erhire v Canada (Public Safety and Emergency Preparedness), 2021 FC 941 at paragraph 75.

[12] At the outset, I note that Ms. Icoyitungiye does not assert that her removal to the Netherlands will expose her to any form of irreparable harm. She was offered the opportunity to apply for a pre-removal risk assessment [PRRA], but waived her right to do so.

[13] Rather, Ms. Icoyitungiye alleges that her removal would expose her daughter to irreparable harm, even though she remains in Canada. This is because leaving her daughter before a guardianship order is in place would leave her vulnerable to apprehension by child welfare authorities. Moreover, she asserts that her daughter has a medical condition that may require attention in the coming months, and that her sister would not have the authority to make decisions in this regard before a guardianship order is in place.

[14] The evidence, however, does not support these assertions. CBSA officers verified that Child Protective Services did not object to Ms. Icoyitungiye’s daughter remaining with her aunt and that Ms. Icoyitungiye could participate by telephone in the guardianship hearing before the Provincial Court of Alberta. Nothing suggests that the daughter will be apprehended because of her mother’s removal from Canada or because of the temporary lack of a guardianship order. Likewise, it is entirely speculative to suggest that the aunt would not be able to attend to the medical needs of her niece in the absence of a guardianship order. If the mother’s consent is needed in the meantime, it could be given by telephone or other means of communication.

[15] I wish to emphasize that Ms. Icoyitungiye is only seeking a stay of her removal until the guardianship hearing on February 11, 2022. In doing so, she implicitly recognizes that her removal will not cause her daughter irreparable harm beyond that moment. She intends to consent to her sister’s guardianship application, which indicates that she is of the view that this is the best option for her daughter. Unlike cases such as Munar v Canada (Minister of Citizenship and Immigration), 2005 FC 1180, [2006] 2 FCR 664, and Faisal v Canada (Public Safety and Emergency Preparedness), 2011 FC 685, there is no dispute regarding the custody of the child and no doubt that the child will be adequately looked after.

[16] As a result, it is not necessary to analyze the other two prongs of the test for granting a stay. In any event, this is a case where the considerations relevant to serious issue and irreparable harm largely overlap.

III. Disposition

[17] As Ms. Icoyitungiye failed to prove that her removal to the Netherlands will expose her daughter to irreparable harm, the test for granting a stay is not met. Therefore, I will dismiss her motion for a stay.

ORDER in IMM-9034-21

THIS COURT ORDERS that the applicant’s motion for a stay of her removal from Canada is dismissed.

"Sébastien Grammond"

Judge

FEDERAL COURT

SOLICITORS OF RECORD

Docket:

IMM-9034-21

STYLE OF CAUSE:

LYDIA ICOYITUNGIYE v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

PLACE OF HEARING:

BY TELECONFERENCE

DATE OF HEARING:

December 8, 2021

ORDER AND REASONS:

GRAMMOND J.

DATED:

December 8, 2021

APPEARANCES:

Rachael J. Anderson

For The Applicant

Maria Green

For The Respondent

SOLICITORS OF RECORD:

RJA Law Barristers and Solicitors Edmonton, Alberta

For The Applicant

Attorney General of Canada Ottawa, Ontario

For The Respondent