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The Applicants, citizens of North Macedonia and Serbia, made claims for refugee protection in 2019. Their claims were refused and the Applicants were scheduled to be removed from Canada on 18 August 2022. They submitted a Humanitarian and Compassionate (H&C) application on 10 August 2022, along with a deferral of removal request. The deferral request was based on two grounds:
- The adult daughter’s psychological needs; and
- Their pending H&C application.
The Applicants also cited a risk of unemployment in North Macedonia and Serbia.
The adult daughter had a history of mental health challenges and counsel argued that her treatment plan would be disrupted if she were removed from Canada. The scheduling of the Applicants’ removal interview triggered a psychological episode for the adult daughter, resulting in hospitalization.
The deferral request was refused on 12 August 2022. The Officer noted that the existence of a pending H&C application did not automatically give rise to a statutory stay of removal or impede removal. The Officer accepted the Applicants’ would face some economic hardship, but that such hardship did not constitute irreparable harm. The Officer also found that the adult daughter would be able to secure sufficient medical treatment in Serbia, or that the family could bring with them a stock of medication not available in Macedonia while the daughter became acclimated to psychiatric care there.
The Applicants brought a motion for a stay of removal, which was granted on 17 August 2022.
The Applicants’ H&C application was refused in October 2023, for which they sought leave for judicial review. The H&C application was sent back for redetermination and was refused again and new judicial review application was commenced.
Justice Grant clarified that s. 48 of IRPA, which governs removal orders, stipulates that removal orders must be enforced as soon as possible, whereas the Applicants and the Officer relied on older language of as soon as was “reasonably practicable”. Justice Grant affirmed that officers have discretion to defer a removal, while continuing to enforce a removal order as soon as possible.
In this case, Justice Grant found that the Applicants did not request a deferral pending their H&C and any final judicial remedy available to them following their H&C determination, and that the event they invoked in seeking a deferral (H&C) had occurred, making the matter moot.
Justice Grant went on to find that the Applicants had other options to obtain relief: for instance, if CBSA resumed removal proceedings, they could seek a further deferral of removal and seek a stay of removal from the Court, declining to hear the matter on its merits.
Justice Grant concluded: [40] As Justice Mactavish noted in Varatharasa v Canada (Public Safety and Emergency Preparedness), 2018 FC 393, I reiterate here that the Applicants are not without recourse. In fact, the outcome of this matter has no bearing on their options for seeking further relief from removal. If removal proceedings are resumed, the Applicants may bring a further deferral request. In so doing, it will be open to them to point to the status of the IMM-7116-24 matter, and to provide the officer with updated information regarding Sanja’s [adult daughter’s] mental health.
See: Dimikj v. Canada (Citizenship and Immigration), 2024 FC 2066, <https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/527120/index.do>.
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