Docket: IMM-10131-25
Citation: 2025 FC 870
Ottawa, Ontario, May 10, 2025
PRESENT: The Honourable Mr. Justice Ahmed
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BETWEEN:
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EBENEZER DUAH
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Applicant
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and
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MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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ORDER AND REASONS
[1] The Applicant seeks an Order staying his removal from Canada to Ghana on May 12, 2025. An enforcement officer denied the Applicant’s request for a deferral of removal on May 8, 2025. The Applicant seeks to stay his removal pending the disposition of his application for leave and judicial review of the officer’s decision.
[2] I have reviewed the materials submitted by the parties and have considered their representations delivered by videoconference on May 10, 2025. I find the Applicant has met the tripartite test for a stay (Toth v Canada (Minister of Employment and Immigration), 1988 CanLII 1420 (FCA) (“
Toth”
); Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 (“
Baron”
)).
[3] The Applicant is a citizen of Ghana. He states that he is gay, a claim that was found to be not credible by the Refugee Protection Division. Following the refusal of his refugee claim, the Applicant states that personal and explicit photos of him have been circulated among his family in Ghana. The Applicant submits that he faces new risks based on the circulation of his personal photos and cleansing rituals his family will force him to undergo upon return. In the negative deferral decision, the officer found the Applicant brought insufficient evidence for these new allegations of risk.
[4] The Respondent submits that this Court should decline to hear the Applicant’s motion, as the Applicant comes to this Court with unclean hands. The Respondent asserts that the Applicant failed to appear for a removal interview on April 1, 2025 and worked illegally after being informed that he did not have status to work in Canada.
[5] I disagree. I do not find that these factors warrant the dismissal of this motion. As noted by the Applicant’s counsel at his detention review proceeding, the April 1 removal interview was not brought to the attention of the Applicant. The Respondent had sent the call-in notification to the wrong email address. The Respondent then failed to follow up with the Applicant via phone until the scheduled time of the removal interview had passed. The Respondent’s own evidence is that the Applicant attended five removal interviews following April 1, 2025, after being properly informed that they had been scheduled. This alone speaks volumes about the Applicant’s cooperation with immigration authorities.
[6] Moreover, the Applicant was told that he did not have status to work on April 3, 2025. He stopped working on April 9. I do not find that employment for a period of six days warrants the dismissal of this motion. This Court has previously held, albeit in the H&C context, that applicants “cannot reasonably be expected to stop seeking the means to purchase basic needs such as food and shelter while attempting to regularize their status in Canada”
(Daguil v Canada (Citizenship and Immigration), 2025 FC 3 at para 20). The discretion to dismiss a motion on equitable grounds lies with the Court (Gracia v Canada (Citizenship and Immigration), 2021 FC 158 at para 20). I do not find the circumstances of this case warrant the exercise of this discretion.
[7] Turning to the merits of the stay motion, I find the Applicant has established a serious issue with the officer’s decision. The Applicant submits that the officer erred with respect to a statutory declaration provided by his uncle (“Declaration”
). I agree.
[8] Despite clear statements that the Applicant’s family members have participated in circulating the Applicant’s personal photos and seek to harm him for impugning the family’s honour, the officer held that the Declaration was insufficient to demonstrate the Applicant’s alleged risk. The officer reasoned that further documentary evidence was required, such as letters from the family members who purportedly seek to harm the Applicant. The officer does not address unlikelihood of the Applicant receiving letters of support from individuals who intend him harm.
[9] The officer also does not explain why the statement from the Applicant’s uncle is insufficient. I note that the Applicant placed before the officer objective country condition evidence of severe anti-LGBTQ persecution in Ghana. Although it may be feasible for LGBTQ applicants in some countries to discuss their sexuality and obtain support letters from family, the record demonstrates that it would be extremely difficult for an applicant from Ghana to do so. I do not find the officer accounted for this context in faulting the Applicant for only presenting the Declaration.
[10] The officer notes that the Applicant’s uncle himself holds discriminatory views toward the Applicant, taking issue with the assertion that the Applicant’s uncle provided the Declaration “after introspection.”
On this point, I find some merit to the Applicant’s submission that the officer undertook a selective review of the evidence.
[11] In the Declaration, the Applicant’s uncle explicitly wrote that he does not support the Applicant. The Applicant’s uncle twice described the Applicant’s behaviour as “abominable”
and wrote that “this Declaration must not be construed, if at all possible, to give support to [the Applicant]’s unorthodox sexual preference.”
The Applicant’s uncle does not wish to “make things right,”
as the officer contends. The officer has misquoted the Declaration. The Applicant’s uncle believes the Applicant must “make things right”
by “learn[ing] from the hardships…and the shame that”
the Applicant’s uncle associates with the Applicant’s alleged sexuality.
[12] These passages demonstrate that the Applicant’s uncle does not support the Applicant. He simply does not wish for the Applicant to die. He did not arrive at this position solely through “introspection.”
The Declaration suggests that the Applicant’s uncle cannot disown the Applicant because his deceased brother, the Applicant’s father, refused to disown him before passing away. The officer’s failure to account for these passages in the Declaration support the Applicant’s argument that the officer reviewed the evidence through a selective lens.
[13] In my view, these issues are sufficient to demonstrate a serious issue with the deferral decision (Toth; Baron at para 67).
[14] Furthermore, I find the Applicant has established irreparable harm. The Declaration is clear that “[the Applicant]’s life will not be spared by the family, the community, and even members of [the Applicant’s uncle]’s lineage.”
This assertion is reinforced by country condition evidence cited in the Applicant’s deferral request, which demonstrates that “individuals who are known to be or perceived to be LGBTQ are subject to violent attacks by family and members of their communities”
[emphasis added]. Violence and death are harms which are not “inherent in the notion of deportation itself”
(Atwal v Canada (Minister of Citizenship and Immigration), 2004 FCA 427 at para 16). I find the Applicant has demonstrated a “harm which will occur in the interim between now and the time the application for leave and judicial review is adjudicated upon,”
which “can not be cured,”
and “is likely to occur”
(Thuraisingam v Canada (Minister of Citizenship and Immigration), 2006 FC 72 at para 13).
[15] As a result, the balance of convenience lies with the Applicant. The Minister’s obligation to enforce removal orders swiftly under section 48 of the Immigration and Refugee Protection Act, SC 2001, c 27 does not outweigh the Applicant’s interests in this matter.
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