Ottawa, Ontario, January 3, 2025
PRESENT: Madam Justice Azmudeh
BETWEEN:
YUSUF AKSOY
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER AND REASONS
I. Overview
[1] The Applicant, a citizen of Türkiye, has been directed to report for removal from Canada on January 5, 2025. He has applied for an order staying the order for his removal pending the final determination of his Application for Leave and Judicial Review (the “ALJR”) of a decision dated October 24, 2024 and communicated to him on December 11, 2024, refusing his application for a Pre-Removal Risk Assessment (“PRRA”) under subsection 112(1) of the Immigration and Refugee Protection Act, SC 2001, c 27, (“IRPA”).
[2] I stated at the conclusion of the hearing that I would be granting the stay motion because I was satisfied that the Applicant had met the three-part test for a stay. I also stated that my reasons would follow. These are those reasons.
II. Summary of Relevant Facts and PRRA findings
[3] The Applicant is a citizen of Türkiye. On October 11, 2023, he fled Türkiye and travelled to Mexico, eventually crossing into the United States on October 17, 2023. He crossed the Quebec border on October 20, 2023 and made a claim for refugee protection. His claim was deemed to be ineligible and he was issued with an exclusion order for one year. The Applicant departed Canada and was returned to the United States. Two days later, he returned to Canada. However, because he was ineligible to have his claim heard by the Refugee Protection Division, he was eventually offered PRRA. As stated above, PRRA was refused on October 24 and communicated to the Applicant on December 11, 2024.
[4] The PRRA was refused mainly because the Applicant had failed to identify any risk factors. The Officer noted that even though he had referred to an affidavit and that his submissions were due on May 10, 2024, he had not submitted anything by the time the application was decided.
[5] The Applicant has raised incompetence of former counsel and their failure to submit any documents as a breach of procedural fairness with respect to the PRRA determination. Through his current counsel, the Applicant has notified former counsel of the detailed allegations against them.
III. Analysis
A. The Test for a Stay of Removal
[6] To obtain an interlocutory stay of removal, the applicant must demonstrate three things: (1) that the underlying application for judicial review raises a “serious question to be tried;” (2) that the Applicant will suffer irreparable harm if the stay is refused; and (3) that the balance of convenience (i.e., the assessment of which party would suffer greater harm from the granting or refusal of a stay pending a decision on the merits of the judicial review application) favours granting a stay (Toth v Canada (Employment and Immigration) (1988), 1988 CanLII 1420 (FCTAD), 86 NR 302, 6 Imm LR (2d) 123 (FCA) [Toth]; R v Canadian Broadcasting Corp, 2018 SCC 5, [2018] 1 SCR 196 [CBC]at para 12; Manitoba (Attorney General) v Metropolitan Stores Ltd, 1987 CanLII 79 (SCC), [1987] 1 SCR 110; and RJR-MacDonald Inc. v Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 SCR 311 [RJR-MacDonald] at 334).
[7] This Court has held repeatedly that the purpose of an interlocutory order is to ensure that the subject matter of the underlying litigation will be preserved so that effective relief will be available should the applicant be successful on their application for judicial review (Google Inc. v Equustek Solutions Inc., 2017 SCC 34 [Google] at para 24).
[8] I also note that the decision to grant or refuse this interlocutory relief is a discretionary one that must be made having regard to all the relevant circumstances (CBC, at para 27). As the Supreme Court of Canada stated in Google, at paragraph 25: “The fundamental question is whether the granting of an injunction is just and equitable in all of the circumstances of the case. This will necessarily be context-specific.”
[9] While each part of the test is important, and that the test is conjunctive, they are not discrete, watertight compartments. Each part focuses on the Court on factors that inform its overall exercise of discretion in a particular case (Wasylynuk v Canada (Royal Mounted Police), 2020 FC 962 [Wasylynuk] at para 135). The test should be applied in a holistic fashion where strengths with respect to one factor may overcome weaknesses with respect to another (RJR-MacDonald at 339; Wasylynukat para 135; Spencer v Canada (Attorney General), 2021 FC 361 at para 51; British Columbia (Attorney General) v Alberta (Attorney General), 2019 FC 1195 at para 97 (rev’d on other grounds 2021 FCA 84); and Power Workers Union v Canada (Attorney General), 2022 FC 73 at para 56. See also Robert J Sharpe, “Interim Remedies and Constitutional Rights” (2019) 69 UTLJ (Supp 1) at 14).
(1) Serious Issue
[10] In this case, the threshold for establishing a serious question to be tried is a low one. The Applicant only needs to show that the ALJR is not frivolous or vexatious (RJR-MacDonald at 335 and 337; see also Gateway City Church v Canada (National Revenue), 2013 FCA 126 at para 11 and Glooscap Heritage Society v Canada (National Revenue), 2012 FCA 255 [Glooscap Heritage Society] at para 25 and Abazi v MCI [2000] F.C.J. No. 429, at para 5.)
[11] The PRRA decision clearly demonstrates that the Applicant had not filed any submissions in support of his application. The Applicant has also filed evidence on former counsel not meeting with him, to have delegated his professional duties to an interpreter and to not have filed the necessary and available documents in support of his application.
[12] This Court has recently affirmed that when a PRRA takes place without any prior risk assessment, the stakes are particularly high, and this Court must particularly scrutinize the case (see Mersha v Canada (Citizenship and Immigration), 2023 FC 230 at paragraph 18 the principle set out in Abusaninah v Canada (Minister of Citizenship and Immigration), 2015 FC 234 at paragraph 57. This is consistent with Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817 at paragraph 25, where the Supreme Court of Canada found that the degree of procedural fairness owed to an applicant is proportionate with the consequence.
[13] In this case, the sole purpose of the PRRA was to make a finding on whether the Applicant faces a well-founded fear of persecution for reasons of his Kurdish nationality or political opinion (s. 96 of IRPA) or on a balance of probabilities, face a risk to his life, a risk of cruel and unusual treatment or punishment or torture (s. 97(1) of IRPA). The stakes to the Applicant could not have been higher than life or death. In effect, the Applicant found himself in a situation where his risk had not been substantively assessed on its merits in the circumstance of his case since nothing was filed to support his PRRA application.
[14] This Court has stated that in proceedings under IRPA, the incompetence of counsel will only constitute a breach of natural justice in “extraordinary circumstances” (Memari v Canada (Citizenship and Immigration), 2010 FC 1196 [Memari] at para 36 ). To demonstrate that the incompetence of counsel amounted to a breach of procedural fairness, an applicant must establish that each element of a tripartite test is met, namely that (i) prior counsel’s acts or omissions constituted incompetence; (ii) a miscarriage of justice resulted in the sense that, but for the alleged conduct, there is a reasonable probability that the result would have been different; and (iii) the representative was given a reasonable opportunity to respond (Guadron v Canada (Citizenship and Immigration), 2014 FC 1092 at para 11 ). Moreover, the analysis proceeds upon a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance (R v GDB, 2000 SCC 22 [GDB] at paras 27 ). The onus is on the applicant to rebut this strong presumption, and the wisdom of hindsight has no place in this assessment (GDB at para 27).
[15] First, in this case, former counsel did not make any submissions with the PRRA application, when the sole purpose is to convince the decision-maker of the risk he would face upon return to his country. Competent counsel knows or ought to know that the onus is on the applicant; and that unless credibility is an issue, written submissions are the applicant’s only opportunity to even have a chance of their assessment succeeding. The complete failure of former counsel to make submission therefore rebuts the strong presumption that their conduct fell within the range of reasonable professional assistance. This is because there was simply no professional assistance. I find that prior counsel’s failure to make submissions constitutes incompetence, thus satisfying the first prong of the test.
[16] The former counsel’s total failure to make any submission is not a question of professional judgement such as choosing between different lines of arguments or documents to submit. It is hard to reconcile this failure with the Respondent’s argument that there may not have been a miscarriage of justice.
[17] In fact, the Respondent argues that the Applicant has not demonstrated that there is a “reasonable probability that the result of his PRRA would have been different but for his former counsel’s conduct,” citing Memariat para 36 and Brown v Canada (Citizenship and Immigration), 2012 FC 1305at para 56). I note that this Court has repeatedly recognized that in some circumstances, the Applicant is only required to establish “a fairly arguable case that, but for the error, the result might have been different” (see Pompey v Canada (Citizenship and Immigration), 2017 FC 767 at para 21; Srignanavel v Canada (Citizenship and Immigration), 2015 FC 584 at para 19 et seq.).
[18] Even on the higher threshold presented by the Respondent, the PRRA officer had no evidence before them to weigh against any other considerations. The complete absence of evidence and the lack of submissions were the only reason for the refusal. Therefore, the presence of any document or submission could offer a reasonable probability of a different outcome. Moreover, one cannot reasonably engage with the Respondent’s argument without speculating on how any evidence would be weighed. I therefore do not find the Respondent’s arguments persuasive in the context of the extreme facts of this case.
[19] Finally, even if imperfect evidence had been filed by former counsel, the Applicant may meet the Respondent’s imposed threshold (Altug v Canada (Citizenship and Immigration), 2024 FC 2097).
[20] I note that the Applicant’s basis of claim form, prepared for the Refugee Protection Division but never assessed because he was found to be ineligible, contains the details of his risk on the basis of his Kurdish ethnicity and political opinion. These allegations, let alone evidence to substantiate it, were never filed with the PRRA application as the PRRA reasons clearly show that the officer had nothing to assess.
[21] The Respondent argues that the Applicant’s evidence is insufficient to establish incompetence of counsel. It is the Respondent’s position that the Applicant did not submit the necessary documentation to former counsel ahead of the PRRA submissions deadline. In other words, former counsel had received nothing to form the basis of the PRRA submissions prior to the deadline and consequently, the failure to make submissions does not amount to incompetence. However, the PRRA reasons make it clear that the officer was not even privy to the allegations of harm set out in the Applicant’s basis of claim form. In other words, based on the evidence before me, former counsel does not appear to have made any submissions, even though they had, at a very minimum, the basis of claim form to draw on. It is not for this Court to make a final determination on the incompetence of counsel. However, the fact that there was a complete absence of submissions to the PRRA officer regarding the alleged harm taking into account the fact that counsel had access to the harms raised in the basis of claim form, is sufficient to show that the allegation of incompetence is not frivolous or vexatious. Simply put, the question of whether former counsel was incompetent remains a live issue to be determined on the merits.
[22] On the final element of the tripartite test, as soon as the Applicant retained his current counsel, he put former counsel on notice through detailed submissions and provided an opportunity for them to reply. The Respondent submits that the Applicant left his former counsel with insufficient time to provide responding submissions and evidence to these allegations. I disagree. The Applicant has almost perfectly complied with the requirements outlined in the Consolidated Practice Guidelines (Guidelines). The Guidelines outline that current counsel should, unless there is urgency, wait for a written response from former counsel before filing and serving the application record and that former counsel must respond within 7 days of receipt of the notice from current counsel (Guidelines at para 48). In this case, there is clear urgency given the Applicant’s imminent removal on January 5, 2025, which militated against waiting for a written response prior to filing. Applicant’s counsel also provided former counsel with 10 days to respond to the allegations when they were only required to provide 7 days, pursuant to the Guidelines.
[23] Following the analysis above, I find that the Applicant has met the tripartite test of incompetence of counsel. The Applicant has therefore satisfied the first part of the Toth test by raising a serious issue.
[24] By making these findings, I am not suggesting that the outcome of the ALJR is a foregone conclusion. However, it is clear the grounds for review are neither frivolous nor vexatious. The Applicant therefore meets the first part of the Tothtest.
(2) Irreparable Harm
[25] Under the second part of the test, “the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicants’ own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application”
(RJR-MacDonaldat 341). This is what is meant by describing the harm that must be established as “irreparable.”
Irreparable harm concerns the nature of the harm rather than its magnitude (RJR-MacDonaldat 341) and is generally a harm that cannot be quantified in monetary terms or that could not be cured for some other reason even if it can be quantified.
[26] To establish irreparable harm, the moving party “must demonstrate in a detailed and concrete way that it will suffer real, definite, unavoidable harm – not hypothetical and speculative harm – that cannot be repaired later”
(Janssen Inc v Abbvie Corporation, 2014 FCA 112 at para 24). Unsubstantiated assertions of harm will not suffice. The moving party must establish a “real probability”
of irreparable harm (Glooscap Heritage Society at para 31).
[27] The removal of the Applicant prior to the final determination of his ALJR of the negative PRRA decision, when there is a serious issue with respect to his risk being assessed, would potentially render that Application moot (Solis Perez v Canada (Citizenship and Immigration), 2009 FCA 171 at para 5). I acknowledge that that this Court could continue to exercise its discretion to hear the judicial review of the underlying PRRA decision.
[28] I agree that mootness does not automatically amount to irreparable harm in every case. It is factual and it must be determined in the individual circumstances of the particular case at bar (see e.g. El Ouardi v Canada (Solicitor General), 2005 FCA 42 at para 8; Canada (Public Safety and Emergency Preparedness) v Shpati, 2011 FCA 286 at paras 34-38.)
[29] In my view, the PRRA officer’s inability to assess the Applicant’s risk due to incompetence of counsel could expose him to a risk of persecution or torture on arrival to his country of nationality. This is directly linked to the question of irreparable harm (i.e., the risk of persecution or torture on his arrival).
[30] The Respondent argued that the potential risk in Türkiye is not engaged in this case, because the Applicant had never made such allegations. Accordingly, the Respondent argued that the Applicant's return to Türkiye can not be seen as an irreparable harm. The absence of evidence submitted to the PRRA officer, allegedly owing to former counsel's incompetence, is not evidence that there is no real life risk. For the Respondent to make this argument is circular logic. I find that in this case, the second part of the test (i.e., the irreparable harm) is rationally connected to the serious question to be tried. I find that the loss of the right to seek a meaningful and effective remedy in the underlying proceeding amounts to irreparable harm.
(3) Balance of Convenience
[31] To meet this third part of the test, the Applicant must establish that the harm he would suffer if the stay is refused is greater than the harm the Respondent would suffer if the stay is granted. This is assessed in the context of other interests that will be affected by the Court’s decision. This weighing exercise is neither scientific nor precise (Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2020 FCA 181 [Canadian Council for Refugees] at para 17). It is at the heart of the determination of what is just and equitable in the particular circumstances of the case at hand.
[32] I am also satisfied that the balance of convenience favours the Applicant.
[33] In assessing the balance of convenience, in addition to the Applicant’s interests, the public interest must be taken into account since this is a case involving the actions of a public authority (RJR-MacDonald at 350). As the Respondent submitted, the Applicant is subject to a valid and enforceable removal order. It was made pursuant to statutory and regulatory authority. It is therefore presumed that it is in the public interest. Further, under subsection 48(2) of the IRPA,a removal order “must be enforced as soon as possible” once it is enforceable. It is also presumed that an action that suspends the effect of the order (as would an interlocutory stay) would be detrimental to the public interest (RJR-MacDonaldat 346 and 348-49). Whether this is sufficient to defeat a request for an interlocutory stay in a given case will, of course, depend on all the circumstances of the case. This can also depend on how long the effect of the deportation order would be suspended (Canadian Council for Refugeesat para 27).
[34] However, I agree with the Applicant that public interest does not favour removal to a country where the individual could be persecuted or tortured. Further, I agree with this Court that the interest in ensuring that the Applicant retains the right to a meaningful and effective remedy is not the Applicant’s alone. “It is shared by the public and by the administration of justice, a factor that also tips the balance in favour of a stay” (SKGO v MCI,2023 FC 83 at para 29).
[35] There are no aggravating factors in this case to tip the balance against the Applicant. I do not find that his return to Canada to seek protection, after having been returned to the United States, would tip the balance sufficiently in favour of the Respondent in this case. There is no suggestion that he poses any sort of risk to the public at this time.
[36] In the context of this case, the only inconvenience to the Respondent if the Applicant is not removed on January 5, 2025 and his ALJR is dismissed is that his removal from Canada will have been delayed. His removal will only be delayed and not frustrated entirely. On the other hand, the potential prejudice to the Applicant is losing the right to a meaningful remedy. This is significant and irreparable. In the particular circumstances of this case, this outweighs the public interest in the immediate enforcement of the removal order.
[37] For these reasons, I am therefore satisfied that the balance of convenience favours the Applicant.
IV. Conclusion
[38] Balancing all of the relevant considerations, I am satisfied that the Applicant has met the three-part test of a stay of removal.
[39] I grant the Applicant’s motion for a stay of removal. The Applicant shall not be removed from Canada prior to the final determination of the underlying Application for leave and judicial review.
ORDER IN IMM-24757-24
THIS COURT ORDERS that:
The motion is granted.
The Applicant shall not be removed from Canada prior to the final determination of his Application for leave and judicial review of the negative PRRA decision.
“Negar Azmudeh”
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
IMM-24757-24
STYLE OF CAUSE:
YUSUF AKSOY v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:
HELD BY VIDEOCONFERENCE
DATE OF HEARING:
January 3, 2025
ORDER AND REASONS:
AZMUDEH J.
DATED:
January 3, 2025
APPEARANCES:
Kareem Ibrahim
For The Applicant
Kevin Spykerman
For The Respondent
SOLICITORS OF RECORD:
Kareem Ibrahim Law
Toronto (Ontario)
For The Applicant
Attorney General of Canada
Toronto (Ontario)
For The Respondent