Jalloh v. Canada (Citizenship and Immigration), 2023 FC 18

Date: 20230104

Docket: IMM-9318-22

Citation: 2023 FC 18

Toronto, Ontario, January 4, 2023

PRESENT: Madam Justice Go

BETWEEN:

IBRAHIM JALLOH

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

ORDER AND REASONS

[1] Mr. Ibrahim Jalloh [Applicant] seeks a stay of removal to Sierra Leone scheduled for January 5, 2023. The motion for stay is brought as interlocutory relief to an Application for Leave and for Judicial Review [ALJR] of a decision dated August 17, 2022 rejecting the Applicant’s Pre-Removal Risk Assessment [PRRA] Application [PRRA Decision].

[2] Having considered the material filed by the parties, and having heard the submissions of counsel for the parties, I am granting the Applicant’s motion for a stay of his removal.

I. Context

[3] The Applicant has a long history of involvement with the immigration authorities and criminal justice system in Canada. For the purpose of the stay motion, I will only highlight a few key events.

[4] The Applicant was born in Freetown, Sierra Leone in 1989. At approximately nine years old, he was kidnapped by the Revolutionary United Front [RUF] as a child soldier after witnessing his mother get raped and killed, and his sister get raped by members of the RUF. As a child soldier, the Applicant was forcibly administered drugs, understood to be cocaine.

[5] The Applicant was rescued after six months. By this time, the Applicant had developed an addiction to cocaine, and committed drug-related crimes in Sierra Leone.

[6] In 2007, as a 17-year-old, the Applicant arrived in Canada, having been sponsored by his father. The Applicant’s drug habit continued as did his involvement in crime. Due to his criminal convictions, the Applicant was found inadmissible to Canada and ordered removed from Canada. The Immigration Appeal Division [IAD]’s initial decision to dismiss his appeal was set aside. This was followed by a second IAD decision granting a stay of removal for three years subject to a number of terms and conditions, some of which the Applicant failed to obey. The IAD eventually dismissed the Applicant’s appeal in January 2022, and this Court dismissed the Applicant’s application for judicial review of the IAD decision.

[7] The Applicant submitted a PRRA application in March 2022. The Applicant had a PRRA interview on June 2, 2022. The Applicant submitted further submissions through counsel to the PRRA Officer after the interview. Included with his PRRA application was a report from Dr. Hap Davis confirming that the Applicant suffers from Post-Traumatic Stress Disorder [PTSD] and maladaptive behaviour.

[8] While rejecting the Applicant’s PRRA application, the PRRA Officer accepted the facts surrounding his recruitment and time spent as a child soldier. The PRRA Officer also accepted his ongoing mental health challenges stemming from this time in his life “without reservation”.

[9] On December 12, 2022, the Calgary Police Service [CPS] arrested the Applicant after executing a search warrant. CPS transferred the Applicant to the custody of the Canada Border Services Agency [CBSA] on December 15, 2022 to effect his removal to Sierra Leone. The Applicant has been placed under immigration detention since. Currently, the Applicant is still facing several outstanding criminal charges dating back to December 2021, but no charges have been laid arising from the December 12, 2022 arrest.

II. Issues and Legal Test for Obtaining a Stay

[10] The only issue is whether a stay of removal should be granted in these circumstances.

[11] 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 (MTS) Ltd, 1987 CanLII 79 (SCC), [1987] 1 SCR 110 [Manitoba], RJR-MacDonald v Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 SCR 311 [RJR-MacDonald], and R v Canadian Broadcasting Corp, 2018 SCC 5, which is the test to be applied to stays of removal: Toth v Canada (Minister of Employment and Immigration) (1988), 1988 CanLII 1420 (FCTAD), 86 NR 302, 11 ACWS (3d) 440 (FCA).

[12] 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.

[13] 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

[14] In my view, there is one serious issue arising from the PRRA Decision, namely, that the PRRA Officer failed to consider the “compelling reasons” exception in the PRRA application.

[15] Subsection 108(4) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] provides an exception to rejecting a refugee claim where the reasons for which the person sought refugee protection have ceased to exist. This exception applies if there are “compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment”.

[16] As Justice Fothergill explained in Zuniga v Canada (Minister of Citizenship and Immigration), 2020 FC 488 [Zuniga] at para 18, citing the Federal Court of Appeal’s decision in Yamba v Canada (Minister of Citizenship and Immigration), 2000 CanLII 15191 (FCTAD), [2000] 254 NR 388, at para 6:

In summary, in every case in which the Refugee Division concludes that a claimant has suffered past persecution, but this [sic] has been a change of country conditions under paragraph 2(2)(e), the Refugee Division is obligated under subsection 2(3) to consider whether the evidence presented establishes that there are "compelling reasons" as contemplated by that subsection. This obligation arises whether or not the claimant expressly invokes subsection 2(3). That being said the evidentiary burden remains on the claimant to adduce the evidence necessary to establish that he or she is entitled to the benefit of that subsection.

[17] Justice Fothergill continued to note in Zuniga:

19To be eligible for consideration under s 108(4) of the IRPA, a claimant must have been a Convention refugee or person in need of protection at the time of his or her persecution. As Justice John O'Keefe explained in Salazar v Canada (Citizenship and Immigration), 2011 FC 777 (at paras 31-32):

The jurisprudence on subsection 108(4) is clear that the Board must first find a refugee claimant to be a Convention refugee or person in need of protection at the time of persecution before the compelling reasons exception applies. In Nadjat v. Canada (Minister of Citizenship and Immigration), 2006 FC 302, Mr. Justice James Russell held at paragraph 50 that there must be "... a finding that the claimant has at some point qualified as a refugee, but the reasons for the claim have ceased to exist".

As I held in John v. Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC 1088 at paragraph 41:

This requires a clear statement conferring the prior existence of refugee status on the claimant, together with an acknowledgement that the person is no longer a refugee because circumstances have changed.

[Emphasis in original]

[18] In support of the Applicant’s PRRA application, counsel for the Applicant wrote in his submission:

We submit that the Applicant clearly demonstrated that, at the time he left Sierra Leone, he met the definition of a Convention refugee. Despite the passage of time, the fact that the Applicant is now an adult and that the civil war in Sierra Leone has ended – there are compelling reasons, as per the applicability of s.108(4) of the IRPA, to grant a positive determination in this application.

[19] The Applicant cited Canada (Minister of Employment and Immigration) v Obstoj, 1992 CanLII 14800 (FCTAD), [1992] 2 FC 739 (CA) and Losada Conde v Canada (Citizenship and Immigration), 2020 FC 626 to support his arguments in his PRRA application. The Applicant further quoted the UNHCR handbook, at para 136 which stated in part:

It [i.e., the “compelling reasons” exception] deals with the special situation where a person may have been subjected to very serious persecution in the past and not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin. […] the exception, however, reflects a more general humanitarian principle, which could also be applied to refugees other than statutory refugees. It is frequently recognized that a person who – or whose family – has suffered under atrocious forms of persecution should not be expected to repatriate.

[20] In the PRRA Decision, the Officer found that it was not within their mandate as a PRRA Officer to consider the inability of Sierra Leone to provide adequate medical care to deal with rehabilitation and ailments such as mental illness. The Officer then dealt with the Applicant’s argument as follows:

As noted previously, counsel submitted that Mr. Jalloh was a refugee when he arrived in Canada, despite not claiming protection upon arrival due to being landed as a member of the Family Class. It will be noted that during the oral hearing conducted for this assessment, Mr. Jalloh testified that he returned to Sierra Leone approximately 10 to 12 years ago for the funeral of a friend. Although he had not been conferred refugee protection, this action would be interpreted as Mr. Jalloh accepting the protection of his country of origin, thus nullifying the prospect of refugee protection.

[21] In so finding, the Officer failed to conduct a review of the Applicant’s claim for protection in relation to the “compelling reasons” exception. Instead, the Officer reviewed the Applicant’s claim through a contemporaneous approach. I find nowhere in the PRRA Decision did the Officer make any finding as to whether the Applicant was a person in need of protection when he first came to Canada, whether the reasons for the claim have ceased to exist, and finally, whether the evidence establishes “compelling reasons” as contemplated by subsection 108(4) of IRPA.

[22] The Respondent submits that since the Applicant is not a refugee, subsection 108(4) does not apply. The Respondent argues that the Applicant has not put forth any authority on the application of subsection 108(4) outside of the refugee context, and therefore the PRRA Officer’s numerous mentions that the Applicant is not a refugee are sufficient to address this issue. The Respondent further argues that it is not within a PRRA Officer’s mandate to debate or discuss a section of legislation which clearly does not apply to the matter before them.

[23] I reject the Respondent’s arguments for several reasons. First, the PRRA Officer did not reject the Applicant’s submission on the basis that they have no mandate to consider the “compelling reasons” exception specifically.

[24] Second, the cases cited by the Respondent do not support its position. In Pazmandi v Canada (Citizenship and Immigration), 2020 FC 1094 [Pazmandi] at para 50, Justice McHaffie confirmed that it is a condition precedent for the application of subsection 108(4) that the “claimant would have once qualified as either a Convention refugee or person in need of protection” [emphasis added]. In Kim v Canada (Citizenship and Immigration), 2022 FC 1408, another case cited by the Respondent, the Refugee Protection Division [RPD] determined the applicant faced discrimination, but not persecution, in his country of citizenship and therefore did not qualify for protection under IRPA: at para 32. Neither of these two cases stand for the proposition that an applicant must have been determined to be a Convention Refugee, or must have made a refugee claim in the past, as a condition precedent to applying the “compelling reasons” exception.

[25] Further, contrary to the Respondent’s assertion, the case law does not restrict the application of the “compelling reasons” exception only to persons who have been found to be a refugee, or only in the context of a cessation hearing. As noted in Krishan v Canada (Minister of Citizenship and Immigration), 2018 FC 1203:

75In Moya v Canada (Citizenship and Immigration), 2016 FC 315, it was affirmed that for a compelling reasons analysis to take place, there must be a finding that the applicant would have been a refugee in the past for the compelling reasons provision to apply. This was also the case in Castillo Mendoza where Justice Zinn followed the FCA in Yamba.

77Justice Zinn in Castillo Mendoza at paragraphs 27-29, makes it clear that there must be an establishment of a condition precedent and that the "claimant would have once qualified as either a Convention refugee or person in need of protection."

[26] These cases confirm that for the “compelling reasons” exception to apply, an applicant needs only to demonstrate that they “would have” once qualified as a Convention refugee or a person in need of protection. These cases do not require an applicant to show that they have in fact been found to be a Convention refugee previously.

[27] At the hearing, the Applicant added that the “compelling reasons” exception often comes into play in the context of a determination of a refugee claim by the RPD, where no prior decision has been made to confer refugee status to the individual. The Applicant also argued that if there was a requirement that the Applicant has made a refugee claim, this requirement was met by his filing of the PRRA application seeking to be recognized as a Convention refugee under section 96 of IPRA, or a person in need of protection under section 97. These arguments, in my view, support the Applicant’s position that there is serious issue arising from the PRRA Decision.

[28] Also, as the Applicant submits, the case law confirms that a PRRA officer may embark on a “compelling reasons” analysis: see Cromhout v Canada (Citizenship and Immigration), 2009 FC 1174 at para 42 and Lozano Caceres v Canada (Citizenship and Immigration), 2022 FC 179 at paras 14, 33 and 35.

[29] The Respondent submits that this Court has already rejected the s.108(4) argument, citing Justice Rochester’s comment in Jalloh v Minister of Citizenship and Immigration, 2022 FC 1603 at para 41 that the Applicant “is not in fact a refugee”, and that “[t]he failure to consider him akin to a refugee does not constitute a reviewable error on the part of the IAD”.

[30] With respect, Justice Rochester made the above noted comment in the context of assessing the reasonableness of the IAD’s hardship analysis. It was not, as the Respondent asserts, made in response to arguments pursuant to subsection 108(4). Indeed, prior to the PRRA application, the Applicant had never had any risk assessment, and therefore had not had the opportunity to make any submission with respect to subsection 108(4).

[31] I raised with the Applicant at the hearing Justice McHaffie’s comments in Pazmandi that the conditions for applying the “compelling reasons” assessment were not present in that case. Specifically, Justice McHaffie found that the applicant did not show she met the requirements for refugee protection after she left her country of origin, and only then would she had been eligible for refugee protection: at para 50. The Applicant submitted that the case law does not adopt such a nuanced approach and that in any event, the PRRA Officer in this case never engaged in analysis concerning “compelling reasons”.

[32] For the purpose of this stay motion, I need not decide on the finer point of the conditions precedent for applying the “compelling reasons” exemption. Suffice to say that the case law does not require the Applicant to demonstrate that he has been found to be a Convention refugee or has previously made a refugee claim in order to seek the subsection 108(4) exception. Based on these reasons, and given that the PRRA Officer did not engage with the Applicant’s submission on section 108(4), I find that the first branch of the tripartite test is satisfied.

B. Irreparable Harm

[33] 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 para 64. In the context of a stay of removal, the harm usually relates to the risk to the individual(s) 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 (Minister of Citizenship and Immigration), 2005 FCA 148 at para 28.

[34] 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 (Minister of Citizenship and Immigration), 1999 CanLII 8393 (FCTAD), [1999] 4 FC 206 (CA) at para 12.

[35] Irreparable harm may arise from a risk to life, liberty, or safety that the individual would be exposed to if removed to their country of origin: Begashaw v Canada (Minister of Citizenship and Immigration), 2009 FC 462 at para 54, citing Sivakumar v Canada (Minister of Employment and Immigration), 1996 CanLII 4056 (FCTAD), [1996] 2 FC 872 (CA); Hernandez v Canada (Solicitor General), [1993] FCJ No 950 (TD); Membreno-Garcia v Canada (Minister of Employment and Immigration), 1992 CanLII 8586 (FCTTD), [1992] 3 FC 306 (TD); Suresh v R, 1998 CanLII 14659 (ON CTGD), [1998] OJ No 296, 49 CRR (2d) 131.

[36] In the context of this case, there is considerable overlap between the evidence and arguments with respect to serious issues and those relating to irreparable harm.

[37] The evidence contained in Dr. Davis’ report, as accepted by the Officer, summarized his findings as follow:

At your request, I have performed a second clinical assessment of your client and formulated his prognosis for a healthy — not decompensated with no risk of suicide. I found no compromise to a best-practice assessment of his psychological credibility and the results of my assessment are considered reliable and valid. I have outlined your client’s retained symptoms of psychopathology in the form of PTSD with depressive ideation and suicide risk. He specifically expressed his suicide intent, and this outcome but cannot be ruled out, especially given his retained startle response and emotional volatility. I have especially provided a basis for understanding that Mr. Jalloh remains highly susceptible to react with violence to symbols of trauma. And, I have characterized him as irreparably harmed. It is therefore reasonable to expect that Mr. Jalloh would become more severely ill in a return and potentially take his life. I emphasize that this prognosis is formulated on the basis of peer-reviewed literature and I am able to address any questions you may have. [Emphasis added]

[38] As I have found recently in Karkarod v Canada (Minister of Citizenship and Immigration), 2022 FC 1471:

[34]I also agree with the Applicant that suicidal crisis, which is at the most serious end of the depression spectrum, is itself an irreparable harm.

35This Court has found that "significant psychological damage" and "suicidal behaviour" could constitute irreparable harm: Tiliouine v Canada (Public Safety and Emergency Preparedness), 2015 FC 1146 at para 13, citing Melchor v Canada (Solicitor General), 2004 FC 372 at para 12; Bodika-Kaninda v Canada (Citizenship and Immigration), 2011 FC 1484 at para 13; Sparhat v Canada (Public Safety and Emergency Preparedness), 2011 FC 1384; Koca v Canada (Public Safety and Emergency Preparedness), 2009 FC 473 at para 25; Mazakian v Canada (Public Safety and Emergency Preparedness), 2008 FC 1248 at para 33.

[39] Due to his past experiences as a child soldier, the Applicant suffers from PTSD, which Dr. Davis opined would predispose him to responding negatively to “symbols of their past as to in-vivo exposures”. Dr. Davis confirmed that the Applicant remains “at a very high risk for more severe illness if re-exposed to any context where he would even perceive risk”.

[40] I acknowledge the Respondent’s submission that the Applicant may not have done all he could to benefit from the resources available to him in Canada to recover from PTSD. Yet I also note Dr. Davis’ expert opinion stating as follows: “A person who had once been a child soldier, and had once committed brutal acts of violence, may never become “normal” or well-adjusted”.

[41] The medical evidence, which I find not to be speculative, leads me to conclude that the Applicant has established that he would face irreparable harm in Sierra Leone that is not compensable in damages.

[42] I also find that in light of the overlap between the first two prongs of the tripartite test, the potential mootness of the underlying application for judicial review amounts to irreparable harm: Matthew v Canada (Minister of Citizenship and Immigration), 2022 FC 924 at paras 21-22.

[43] As noted above, the Applicant has never had a risk assessment prior to his PRRA application, which raises the stake of removal as well as the harm caused by the loss of judicial remedy.

[44] Finally, I note the Respondent’s concession at the hearing that if I find there is serious issue, then there is also irreparable harm in removing the Applicant.

[45] In conclusion, I find the Applicant has met the second prong of the tripartite test.

C. Balance of Convenience

[46] In the third branch of the test, the Court has to consider where the balance of convenience lies, taking into consideration the public interest to be weighed together with the interests of private litigants: Manitoba at paras 34, 38.

[47] I acknowledge that the Applicant has multiple criminal convictions in Canada, much of which arose from his drug addiction and trafficking, and which relate to breaches of conditions for his release. The Applicant has also had his removal order stayed on humanitarian grounds, only to have it reinstated due to the Applicant’s further criminal charges and convictions.

[48] I agree with the Respondent that the Court may look at the cumulative nature of the Applicant’s criminal history, while I also acknowledge the Applicant’s submission that many of the Applicant’s convictions over the past seven years were for non-serious matters such as breach of curfew.

[49] I further note that while the Applicant has faced many charges, a significant number of them were ultimately stayed or withdrawn. And while the Applicant failed to comply with prior court conditions that resulted in further convictions, the Applicant did just have his curfew lifted recently because of his compliance with conditions.

[50] On balance, I find that the Applicant’s criminal history is a factor that weighs against granting the stay, but I do not find this factor to be so egregious as to justify, on its own, the dismissal of the stay motion.

[51] As the Applicant came to Canada under his father’s sponsorship, the PRRA application was the first opportunity for the Applicant to have a risk assessment completed. The Applicant has raised a serious question as to whether the risk assessment was conducted properly. If the removal is not stayed, the Applicant will return to a country where he witnessed unspeakable atrocities and where he was subject to indescribable terror that no human being, let alone a child, should have to experience.

[52] Balancing all of these factors, I find that the harm of removing the Applicant at this point is greater than the harm caused by delaying the removal until the underlying ALJR is resolved.

[53] I want to emphasize that my decision should not be seen as giving the Applicant a pass for his seemingly never-ending entanglement with the criminal justice system. It is true that the Applicant should not be faulted for the horror that was forced upon him as a child soldier. However, the Applicant can still take responsibility for the path that he chooses to follow, be it in Canada or Sierra Leone. Even if the Applicant were to succeed in having the PRRA Decision overturned, the Applicant could put himself at risk of removal again in the future should he find himself on the wrong side of the law.

ORDER in IMM-9318-22

THIS COURT’S ORDER is that the application for a stay of removal pending the determination of the Applicant’s application for judicial review is granted.