Deferral

Deferral is defined as “a temporary measure necessary to obviate a serious, practical impediment to immediate removal”^[1].  A removal order may be stayed by the CBSA pursuant to section 50(e) of the Immigration and Refugee Protection Act (IRPA).[2]   The case law has established law that an Enforcement Officer has a discrete scope of discretion in deferring the execution of a removal order. In Newman^[3] the Honourable Justice Gascon stated at paragraph 28:

An enforcement officer may consider logistical or practical factors influencing the timing of removal (such as travel arrangements, illness or health issues, the end of a child’s school year, imminent births and deaths, etc.

This is balanced against the purpose of s. 48(2) of the IRPA is to immediately remove persons without status as soon as possible.  There must be more at stake than personal inconvenience. The harm and risk to the person(s) if removed must be irrevocable and permanent:^[4]

It has been recognized that there is a discretion to defer removal though the boundaries of that discretion have not been defined. … One instance of a policy which respects the discretion to defer while limiting its application to cases which are consistent with the policy of the Act, is that deferral should be reserved for those applications or processes where the failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment in circumstances and where deferral might result in the order becoming inoperative. The consequences of removal in those circumstances cannot be made good by re-admitting the person to the country following the successful conclusion of their pending application.[5]

In Mauricette, the Honourable Justice Shore found that

“[t]here are no set conditions that must be met in order for an Officer to exercise his/her discretion to defer removal; therefore, where there are compelling circumstances that make it necessary for the Officer to defer removal, then, justice would require that the Officer exercise that discretion”.^[6]

In other words, exceptional short-term factors must create an “obstacle” to removal.  Each case turns on its own facts and can include the following reasons:

1. Serious risk factors upon return to health and safety;
2. Short term best interests of a child affected by the decision;
3. A pending decision on an immigration application that is likely to be decided very soon;
4. A pending decision on a court application that is likely to be decided very soon;
5. Imminent personal events such as the birth of a child;
6. Recent events such as a death in the family;
7. Issues with identity and travel documents; and
8. Criminal court proceedings that create an impediment to removal.

Stay of Removal

The Federal Court has previously held that a pending application for judicial review may justify granting a stay of removal until such time a decision is rendered by the Federal Court on the underlying application. For instance, in the recent case of Tung,[7] the Honourable Justice Southcott, in granting an application for a stay of removal, decided:

[8] The Applicant is now 63 years old, has been living in Canada since 2001, and has been living with her daughter since 2004. Both her children and her grandchildren reside in Canada. The evidence is that the Applicant has no pension or prospects of employment and that, while her daughter provides her with room and board in the daughter’s house in Canada, she and her brother do not have the financial means to support their mother if she were to return to China […]

[9] I am satisfied that the effect of removing the Applicant to China pending determination of her application for judicial review would constitute more than the normal hardships attendant upon removal. This case has some commonality with Patel v Canada (Public Safety and Emergency Preparedness), 2016 FC 496, in which the applicant’s age, family ties in Canada, and lack of prospects in the country of removal combined to establish irreparable harm.

We further note that there is a line of jurisprudence where the Federal Court granted stays of removal on the basis of pending applications at the Federal Court. For instance, in Gallegos,[8] the Honourable Justice Barnes allowed a stay of removal motion until the determination of the Applicant’s application for leave for Judicial Review, and, if granted, until the determination of that application on the merits, after the refusal of his immigration application. IN another case involving a Pre-Removal Risk Assessment (PRRA) application, the Honourable Justice Shore in Koca[9] allowed a stay of removal until the decision was rendered in the underlying application for leave and judicial review.  In another case the Federal Court in Singh[10] stated:

Further, when there exists credible evidence that the deportation is likely to have a serious impact on the emotional and psychological wellbeing of the parties involved, as is the case at bar, this constitutes irreparable harm. 

Parties include the short-term best interests of a child affected by the decision.  In Bonil Acevedo,[11] the Honourable Justice Shore explained:

Although the removal officer does not have the discretion to make a full determination on the issue of the best interests of children, the appropriate forum for such a full consideration is through the Applicant’s sponsorship/H&C application. Nevertheless, a removal officer, in the appropriate circumstances, does have the discretion to defer removal until such time as the best interests of the child are fully considered in this process.

For example, the courts have frequently endorsed the argument that it is reasonable to defer the removal of a foreign national to allow for the children to complete the school year. Writing in Wang, the Honourable Mr. Justice Pelletier as he then was, canvassed the circumstances that would necessitate the deferral of a removal order. After examining the obvious situations, such as a need to obtain valid travel documents he noted that there were additional reasons,

“outside the narrow compass of travel arrangements but which are affected by those arrangements such as children’s school years, pending births or deaths. These too could influence the timing of removal. These arise even on the narrowest reading of section 48 of the Act.”^[12]

This principle was confirmed in both Simoes^[13] and Munar where it was held that “it is certainly within the removal officer’s discretion to defer removal until a child has terminated his or her school year.”^[14] Further, in Schleicher,^[15] the Honourable Justice Kane held “the jurisprudence has established that enforcement officers are required to consider the short-term best interests of a child in a fair and sensitive manner.”  In all, there are a number of Federal Court decisions holding that a CBSA officer, in refusing to defer removal, commits a reviewable error if the Officer fails to consider the negative impact on the Applicant’s family, including a child, in Canada which would flow from the person’s removal.[16] So, on one hand there may well be options in your case.  On the other hand, there may not be a realistic option to stop removal.  In either case, you must know and not become vulnerable to unscrupulous individuals who may provide unrealistic options at a time of desperation.  For more information on Deportations please click here.

Thank you for reading.      

Sources

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