Stays of Removal - Notes for Presentation to the County of Carleton Law Association

The Honourable Russel W. Zinn¹

Notes for Presentation to the County of Carleton Law Association
Federal Court Practice: Focus on Immigration, Family and Criminal Law
November 1, 2012²

I am going to offer a few practical suggestions which I hope you will find useful when seeking the Court's intervention to prevent a client's removal from Canada. My comments today are mine alone and do not necessarily reflect the experience or disposition of other judges of the Federal Court.

A stay of removal is an equitable remedy and an applicant has a duty to make full and frank disclosure. It is irrelevant that the Minister may know all of these details; what is important is that the Court is made aware of them and the applicant is the party with the onus to do so.

Comment #1: It doesn't matter if you have a client with warts, you have to expose them and deal with them.

The Federal Court can issue a stay as an accessory to the fact that there is a judicial review application pending.

Too frequently, counsel attempt to base a motion on a "deemed" decision, not an actual decision. The lawyer writes to the enforcement officer seeking a deferral of the client's removal and states something like the following: "Please be advised that if there is no response to this request by 3:00 pm today, it will be interpreted as a deemed refusal and an Application for Judicial Review will be initiated."

In fact that was precisely the language used by counsel in a deferral request in Gomez v Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC 593, where I held that "the non-decision of the Minister in these circumstances is not a matter falling within section 18.1 of the Federal Courts Act" and thus cannot be the basis for a motion to stay removal.

Comment #2: Make sure that there is an actual decision that underlies your motion for a stay of removal or you are likely to find yourself out of court.

The Test
In order for the Court to stay removal, an applicant must satisfy the tripartite test for interlocutory injunctions set out in RJR — MacDonald Inc v Canada, [1994] 1 SCR 311. In the immigration context, this is typically referred to as the Toth test, referring to Toth v Canada (Minister of Employment & Immigration) (1988), 6 Imm LR (2d) 123, 86 NR 302 (FCA).

The test has three parts and each must be met to succeed. The burden of proof is on the applicant to show:

1. that there is a serious issue to be tried in the underlying application;
2. that he/she would suffer irreparable harm if no order was granted and he/she was removed from Canada; and
3. considering the situation of both parties, the balance of convenience favours granting the stay.

Serious Issue
Let me say a few words about the serious issue test. In RJR-MacDonald, the Supreme Court said that "when satisfied that the application is neither frivolous nor vexatious, the motions judge should proceed to consider the second and third test, even if of the opinion that the plaintiff is unlikely to succeed trial. A prolonged examination of the merits is generally neither necessary nor desirable [emphasis added." There are two exceptions to that test that I will discuss in a minute.

The test of a serious issue in most stay motions is whether there is an issue in the underlying application that is neither frivolous nor vexatious. This is a very low standard. Generally, an applicant is able to meet that low test.

Comment #3: Set out one or possibly two issues in the underlying application that you submit are neither frivolous nor vexatious. Counsel who provide the Court with a list of five or six or more alleged serious issues weaken their case and risk loosing the attention of the judge by scattering their attack. Pick the strongest one or two issues and focus on those. If you cannot convince a judge that those are serious issues you're not going to convince the judge that the weaker issues are serious.

In RJR-MacDonald the Court indicated that there were exceptions to the not frivolous or vexatious standard of serious issue. The first exception is where the result of the interlocutory motion will in effect amount to a final determination of the action. The second is where a question of constitutionality presents itself as a simple question of law. In those two exceptional situations, the Supreme Court indicated that an extensive review of the merits is warranted.

In the immigration context, the Federal Court in Wang v Canada (Minister of Citizenship & Immigration), 2001 FCT 148, held that where the decision that underlies the application is a decision not to defer removal from Canada, then the serious issue test becomes the likelihood of success on the underlying application, because granting the stay provides the relief the applicant was seeking in the underlying matter. Wang was approved by the Federal Court of Appeal in 2009 in Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81.

Comment #4: If the underlying application is a refusal to defer, counsel are expected to spend more time making submissions as to the serious issue, because you have to establish that the application is likely to succeed on the merits.

I want to briefly describe another situation where I have taken the view that the identified serious issue deserves greater examination than might otherwise be the case. That is the situation where the applicant is challenging a negative pre-removal risk assessment (PRRA) decision.

Citing Figurado v Canada (Solicitor General), 2005 FC 347, or a similar decision, counsel submit that because there is a serious issue in the underlying risk analysis, irreparable harm and balance of convenience automatically follow.

In Cardoza Quinteros v Canada (Minister of Citizenship & Immigration), 2008 FC 643, I expressed my view that the Court must exercise vigilance where that is the position of the applicant. The Court must satisfy itself that the issues raised by the applicant are truly serious issues and not issues that merely have the appearance of seriousness. Counsel can always make something seem like an issue that is not frivolous or vexatious; however, on a more than cursory examination of the facts and circumstances underlying the decision, it may become evidence that it does not rise above the level of frivolous and vexatious.

Comment #5: If the underlying decision is a negative PRRA then make strong independent submissions on irreparable harm and balance of convenience. If you're simply going to submit that they flow naturally from the alleged serious issue, expect to have to convince the judge that the issue you've identified truly is a serious issue and not one that merely has the initial appearance of such.

Irreparable Harm
Moving to irreparable harm, as I said, most of these motions turn on whether or not the applicant is able to establish irreparable harm.

Keep in mind when making your submissions on irreparable harm the words of Justice Dawson in Nagalingam v Canada (Minister of Citizenship and Immigration), Docket IMM-6447-05, December 2, 2005, quoted with approval in Thuraisingam v Canada (Minister of Citizenship and Immigration), 2006 FC 72, indicated that "irreparable harm is harm which will occur in the interim between now and the time the application for leave and judicial review is adjudicated upon. Irreparable harm is harm which can not be cured, and the applicant must establish on a balance of probabilities that harm is likely to occur. The existence of irreparable harm is fact specific. The evidence must be credible and the harm non-speculative."

In RJR MacDonald the Supreme Court is clear that the second part of the test is "whether the applicant would suffer irreparable harm if the application were refused [emphasis added]."

There is some division among judges of the Federal Court as to whether it is only harm to the applicant that is relevant in the immigration context. Some, me included, have held that harm to family members cannot be considered - it must be harm to the applicant.

Justice Shore in Qureshi v Canada (Minister of Citizenship and Immigration), 2007 FC 97, stated: "Even where separations caused by removal may produce substantial economic or psychological hardship to a family unit, the test remains whether Mr. Qureshi himself will suffer irreparable harm [emphasis added]."

Others have indicated that irreparable harm in the context of immigration proceedings may include family separation and it is not limited to threats to the deportee's life or health. Justice Evans in Tesoro v Canada (Minister of Citizenship & Immigration), 2005 FCA 148, seems to have been of that view: "[I]n my opinion, irreparable harm in this context may include family separation, and is not limited to threats to a deportee's life and limb. The more difficult issue is to delineate the circumstances in which family separation, and the disruption of personal and other important relationships, constitute irreparable harm."

There is a bit of a middle ground that may be available. I have found, in exceptional circumstances, that there is irreparable harm to an applicant even where the principal harm was to his family – their harm was his harm too. Be warned, that these were exceptional circumstances and a similar finding would not necessarily have been reached by all my colleagues on the bench.

Comment #6: Focus on irreparable harm to the applicant rather than the family members left behind. If there is no obvious harm to anyone but family members, consider trying to tie that harm directly to the applicant.

Balance of Convenience
It is not often that a motion for a stay of removal will turn on balance of convenience; but it does on occasion. Under balance of convenience, one has to weigh the interests of one party with the interests of the other and in this weighing the conduct of the parties is relevant. Frequently counsel say almost nothing about balance of convenience and that would be a mistake, especially in circumstances where your client's conduct while in Canada has been questionable.

The Court of Appeal in Mohamed v Canada (Minister of Citizenship & Immigration), 2012 FCA 112, has said that when considering balance of convenience to deportees criminality heavily favours the Crown. This is particularly the case if the criminality involves breaches of the immigration legislation.

The Federal Court of Appeal has also recently stated in Grey v Canada, 2010 FCA 105, that enforcement of Canada's immigration laws is a very important public interest that weighs heavily in the assessment.

The Federal Court has stated in Roh v Canada (Minister of Public Safety & Emergency Preparedness), 2011 FC 1273, that having had full access to the mechanisms in the legislation weighs against an applicant.

Factors that may favour the applicant include evidence that the applicant has not abused the system, has complied with the laws of Canada, is not a flight risk, has a family with children born in Canada, has established a life in Canada, participates in the community, and has work or a business.

Some things have little or no persuasive value. For example, too frequently I hear counsel say that it will only be a few months before the underlying application is determined and what's the harm to Canada is he stays here those few months. Because this can be said of everyone in the position of the applicant, it is of no value in reaching a decision on this applicant's case.

Comment #7: Focus on your client, on his or her personal circumstances since entering Canada and in the short term. If there is likely to be a serious disruption of the client's family or business, this is when to raise it. Further, if your client has a chequered past in Canada, face it head on and make submissions as to why it should not weigh too heavily in the Court deciding the motion.

Other
Lastly, let me deal with a few other issues. The Federal Court has regular motion days and if you can bring your motion within the time prescribed, do so. If you cannot, then alert the Court registry by letter that you may require a judge on short notice and set out the removal date. This permits the court to do some planning. We always have duty judges available to hear urgent matters, if only by teleconference.

However, we are frequently faced with last-minute motions for stays in the immigration context and counsel should be aware that they are not necessarily going to be entertained. A judge has discretion in as to whether or not to hear an emergency stay of removal. On most occasions, it will be heard. However, the jurisprudence of the Court, including some of my own, is that last-minute motion for a stay, which provide insufficient time to the respondent and the judge, may not be heard. In Miranda v Canada (Minister of Citizenship and Immigration), 2012 FC 1057, I refused to hear a stay motion filed on short notice.

On August 10th the applicants were served with the Notice to Report for removal on September 7th. On August 27th - 17 days later - they sought a deferral which was refused on September 4th and they then brought the motion for a stay.

I said this:

• [9] By August 10, 2012 they knew the date of their removal and yet failed to make their most recent deferral request until August 27, 2012. …
• [10] The motion record filed on the motion is 315 pages long and it is simply not fair to either the respondent or this Court that they be put to the task of reading and digesting it and making reasoned submissions and a decision within approximately 36 hours because the applicants failed to act promptly in seeking their third deferral. I further note that the written submissions of the applicants were made without the benefit of the deferral decision and are of little value to the respondent or the Court in preparing for the hearing of the requested motion.
• …
• [12] The tardiness of these applicants in taking steps to seek a deferral has resulted in a situation where neither the respondent nor the Court is in a position to be able to give anything more than a cursory consideration of the materials, and accordingly the interests of justice are not served in having this matter heard.

That was a situation where the fault for the last-minute application was the applicant's. However, where the fault lies with the respondent you may be able to secure an interim interim stay pending a hearing or decision on the stay motion. Justice Tremblay-Lamer in Kehinde v Canada (Minister of Public Safety and Emergency Preparedness), October 12, 2012, Docket IMM-10520-12, did just that.

The applicant received the Direction to Report on October 11th and was to be removed on the morning of the 13th. Justice Tremblay-Lamer granted an interim interim stay: "it does not allow the applicant time to prepare an adequate motion record, nor the respondent time to respond thoroughly and it forces the Court to hear the matter without meaningful preparation. This flies in the face of any procedural fairness principle and cannot be said to be in the interest of justice. Consequently, on that basis alone, this Court will grant an interim stay of two (2) days in order for the Court to be able to give the file thoughtful consideration which every application before the Court deserves."

Comment #8: Be timely or you may not be heard. However, if your client is provided with unreasonably short notice, don't let that impede a request for a stay and consider asking the judge for an interim interim stay of removal in order to properly argue the motion.

Lastly, if a stay is granted, it is granted until the final disposition of the underlying judicial review application: Kante v Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 109 and Muhammad v Canada (Minister of Citizenship and Immigration), 2006 FC 156.

However, if you have a client whose criminal history may impede him getting a stay, don't hesitate to think creatively. As an example, consider what was done in Koonjoo v Canada (Minister of Citizenship and Immigration), June 22, 2011, Docket IMM-1231-11.

The applicant was from Trinidad and Tobago. He came to Canada with his family when he was four and was subsequently granted permanent residence status. In September 2007, the applicant was convicted of aggravated assault and conspiracy to commit an indictable offence. He was sentenced to two 12-month terms and as a result was found inadmissible to Canada based on serious criminality. A removal order was issued against him.

I heard the stay motion and was satisfied that he had met the first two parts of the RJR-Macdonald test. My concern, given his criminal record, was the balance of convenience, but his counsel was creative. With respect to the balance of convenience, I said this:

"The balance of convenience tips slightly in favour of the applicant as well. However, should there be any future misconduct on the part of the applicant that balance may well shift to the Minister. Accordingly, I will order, as proposed by applicant's counsel, that this Order may be reviewed and vacated should the applicant be charged with any criminal offence prior to the expiry of the Order [emphasis added]."

Comment #9: Think creatively.

Thank you very much.

1 Justice of the Federal Court (Canada).

2 These notes were also used for a presentation to the Canadian Bar Association, National Immigration Law Section, Annual Conference, May 9-11, 2013 at Montreal, Québec.