Exceptionality upon Exceptionality in Administrative Deferral Jurisprudence

The jurisprudence on deferral of removal requests reads like a Matryoshka doll—exceptionality stacked upon exceptionality. Applicants navigating their way along the many layers of exceptionality face a steep burden; the status quo is removal “as soon as possible.”

The journey of a person targeted for removal by the Minister of Public Safety and Emergency Preparedness (‘PSEP’) generally starts with a letter from an Inland Enforcement Officer of the Canada Border Services Agency (‘CBSA’). This letter is an invitation to attend a pre-interview with CBSA, and an indication that the officer has started to plan removal proceedings. The overall goal of the interview is to determine whether someone is “removal ready”, implying that they have valid travel documents and that their country of origin will take them back. Once CBSA has finalized the process, the person is served with a direction to report for removal from Canada at a specific date.

One pathway to fighting the removal is to submit a pre-removal risk assessment application (‘PRRA’). CBSA should provide notice to a person through a Notification Regarding a Pre-Removal Risk Assessment of their eligibility to apply for a PRRA. If a PRRA has previously been submitted and refused, and especially if an application for permanent residence has already been submitted, a deferral request will become relevant. At this point, a person enters the Matryoshka doll, and is required to demonstrate why their situation is exceptional; they are asked to justify why an officer should, despite their responsibility to enforce a removal order “as soon as possible”, grant a temporary deferral.

To understand why it is awfully difficult to obtain a deferral of removal, one must step back and look at the legal landscape. Canadian parliament has legislated that where a removal order is enforceable, “the foreign national against whom it was made must leave Canada immediately and the order must be enforced as soon as possible” (Immigration and Refugee Protection Act (Immigration Act) at subsection 48(2)). Canadian courts, interpreting this provision, clarified that “[d]espite this apparently absolute language … CBSA officers have a limited discretion to defer removal, through a procedure that has become known as ‘administrative deferral’” (2020 FC 1075 at para 15). ?

The limited discretion available to CBSA offers is a function of the intention of subsection 48, and the underlying purpose of the Immigration Act. Under the Immigration Act, the PSEP, and by extension CBSA, is responsible for “maintaining and protecting the security of Canadian society and the integrity of Canada’s immigration and refugee system. This entails the enforcement of removal orders as soon as it is reasonably practical which is to preserve the integrity of Canada’s immigration and refugee system” (2010 FC 83 at para 50).

Enforcement of Canada’s immigration laws is considered a “very important” public interest (2010 FCA 105 at para 12). A law is furthermore presumed to “produce a public good” until a constitutional review says otherwise (2 SCR 764 at para 9). Finally, as the Federal Court of Appeal stated, “the most fundamental principle of immigration law is that ‘non-citizens do not have an unqualified right to enter or remain in the country’” (2008 FC 374 at para 31). Under this interpretation, deferring removal threatens the integrity of Canada’s immigration system and by extension produces a ‘public bad’. To ask a CBSA officer to produce a ‘public bad’ requires exceptional circumstances.

However, another interpretation is that permitting a deferral in exceptional circumstances maintains the integrity of the Canadian immigration system. Under this interpretation, removal “as soon as possible” should really be understood as “as soon as practically possible”, and since we should be interested in the administration of justice, “as soon as legally possible” (2015 FC 415 at para 30). ?

Let’s recall that the constitutionality of the deportation regime under the Immigration Act depends on there being “a number of safety valves” entitling a person to make submissions to make their case against removal (2019 FCA 262 at para 52). Since the removal stage is the final step in this process, it is here that a person’s section 7 rights under the Canadian Charter of Rights and Freedoms (‘Charter’)—the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice—are triggered. As stated by the Federal Court of Appeal, “[t]he section 7 interests of all claimants ... are protected at the removal stage, whether by a PRRA, a request to defer removal or the right to seek a stay of removal in the Federal Court” (2020 FC 778 at para 36). Canada’s commitment to non-refoulement is also one of the objectives of the Immigration Act (2008 FC 374 at para 9).

Under this interpretation, the discretion of CBSA officers to entertain a removal request is therefore a matter of justice, and one means to ensure the constitutionality of the Immigration Act (2022 FC 1406 at para 15). By implication, an officer cannot refuse to entertain a deferral request.

While an officer cannot refuse to entertain a deferral request, the doorway to deferral is awfully narrow, and is entered by way of exceptionality.

Deferral requests or ‘administrative deferral’ must be “based on a transitional situation that causes significant prejudice to the applicant or to related persons” (2020 FC 1075 at para 16). An officer cannot grant indefinite deferral: “The premise is that the applicant is no longer entitled to remain in Canada and must leave the country. The only question is when” (2020 FC 1075 at para 18). ?

What situations cause ‘significant prejudice’? Beyond situations involving a risk of “death, extreme sanction or inhumane treatment”, illness or other impediments to removal, the short-term best interests of children, or the existence of pending immigration applications that were made on a timely basis may also qualify (2020 FC 1075 at para 16). As most courts will quickly tell you, however, “it is trite law” that removal inevitably causes numerous negative consequences, such as loss of employment or family separation (2018 FC 882 at para 15). Such losses and harms, while unfortunate and regrettable, can therefore not, “save in exceptional circumstances” (2020 FC 1075 at para 17), “exigent personal circumstances” or “compelling individual circumstances” (2016 FC 888 at para 33) constitute grounds for deferring removal. Accordingly, “special circumstances” cannot simply encompass any or all factors contained or provided in support of a humanitarian and compassionate (‘H&C’) permanent residence application (2016 FC 888 at para 35).

What constitutes exceptionality is not clearly defined, depends on the facts of a particular case, and must be interpreted “bearing in mind the limited discretion granted to enforcement officers” (2016 FC 888 at para 30). A degree of arbitrariness is built into the process and is permitted, as long as the decision meets the requirements outlined in Vavilov: the decision as a whole is transparent, intelligible, and justified (2016 FC 888 at para 38).

A common theme nevertheless unites these situations: “special circumstances amount to personal exigencies which, in one way or another, have some relation to the adverse effects or detrimental harm expected to be caused by the impending removal…” (2016 FC 888 at para 34). According to Merriam-Webster, detrimental harm is ‘obviously harmful or damaging’. In the context of an H&C application, special circumstances are limited to those elements evoking some form of detrimental harm linked to the removal from Canada as scheduled. ?

Since the detrimental harm must be linked to the scheduled removal, the special circumstances must also be “short-term”: in the context of health impediments, for instance, a deferral of removal is “intended to address short-term impediments to removal, and not life-long medical needs” (2020 FC 1075 at para 19). The rules of evidence are strict: deferral requires clear, convincing and non-speculative evidence (2018 FC 882 at para 7).

Since the courts will not or cannot tell us what clearly is or is not exceptional, most applicants can do no better than trying to fit their exigent circumstances into one of the boxes previously sanctioned by the courts; and even then, however, they may not succeed, as judges often disagree based on minor nuances in the facts. Most court decisions on this topic therefore read as a study in via negative, describing what exceptionality is by saying what it is not.

To summarize, being granted an administrative deferral is an exception, the final “safety valve” in the immigration deportation regime, granted only if one can demonstrate exceptional circumstances.

The jurisprudence on administrative deferrals continues, however, since an applicant can turn to the Federal Court to challenge a refusal of an officer to grant a deferral. Once they submit such an application, they can file a second application to the Federal Court asking for a “stay of removal” until the application for leave and judicial review of the officer’s decision is disposed of by the court. A typical example looks like this: an applicant has a pending spousal sponsorship application, asked the CBSA officer to defer removal until it is processed, was denied deferral, and then applied to challenge that decision; to remain in Canada, they then apply again to the Federal Court to request that their deferral be “stayed” until the underlying Federal Court application is resolved. This scheme too sounds like a Matryoshka doll.

Several more exceptionalities emerge when courts process stay of removal requests. First, a stay is considered to be an “extraordinary remedy” where an applicant must demonstrate “special and compelling circumstances” that would warrant “exceptional judicial intervention” (2021 CanLII 41429). Next, the applicable conjunctive tripartite test requires there to be (i) a “serious issue to be tried”; (ii) demonstration that an applicant will suffer irreparable harm due to removal; and (iii) that the balance of removal favors the granting of the stay (2021 CanLII 41429). Since granting a stay effectively grants the relief sought in the underlying judicial review application, an “elevated standard” (2019 CanLII 7954) applies to whether there is a serious issue to be tried; an applicant must show “quite a strong case” (2020 FC 1075 at para 21) and not simply a “serious issue.” Since the test is conjunctive, the failure to meet any one of the three elements of the test is “fatal” (2018 FC 882 at para 3). What is an applicant to do with so much exceptionality? One wonders whether the court is trying to deter applicants from applying for a stay.

But the layers continue. The threshold for whether a serious issue exists in the underlying application is generally low, since an applicant usually only needs to show that at least one of the grounds raised in the underlying application for judicial review is not frivolous or vexations. When the underlying application is a judicial review of a deferral request, however, an exception applies, and the applicant must show that at least one ground advanced in the underlying judicial review application “carries with it a likelihood of success”; courts will do a more “extensive review of the merits” of the underlying application (2022 FC 336 at para 30).

A more extensive review is done in the context of the limited discretion of the enforcement officer and the exceptional circumstances that warrant a deferral request. Moreover, courts must keep in mind that the applicable standard of review applied in the underlying judicial review application is reasonableness, meaning that it must be based on an internally coherent and rational chain of analysis that is justified in relation to the facts and law that constrain the decision maker (2018 FC 882 at para 6). An applicant must therefore demonstrate that there are sufficiently serious shortcomings in the enforcement officer’s decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility, and transparency. To make an argument that a serious issue exists, an applicant once again is bound by exceptionality.

The second step of the tripartite test continues to deal with exceptionality in how courts define irreparable harm. Irreparable harm “refers to the nature of the harm suffered rather than its magnitude. It is harm which ‘either cannot be quantified in monetary terms or which cannot be cured’” (2018 FC 882 at para 6). The test for irreparable harm is considered to be a “very strict test” (2018 FC 882 at para 7). Irreparable harm implies “a serious likelihood of jeopardy to the applicant’s (or his or her family’s) life, security or safety. It requires clear, convincing and non-speculative evidence going beyond the inherent consequences of deportation” (2018 FC 882 at para 7). The evidence must be convincing at a “level of particularity that demonstrates a real probability that unavoidable irreparable harm will result unless a stay is granted” (2021 FC 941 at para 65).

Once again, applicants must fit within narrow boxes of harm that is “more than the usual consequences of deportation” (2018 FC 882 at para 14) and result in a “serious impact” on them or their family members that “cannot be remedied” in the event that their underlying application for judicial review is successful (2021 FC 941 at para 63). The serious impact can include emotional, physical, or psychological well-being, and in some cases, economic loss. The starting point is the “trite” reality that “[t]o be deported is to lose your job, to be separated from familiar faces and places. It is accompanied by enforced separation and heartbreak” (2018 FC 882 at para 15). All of this heartbreak is unfortunate and regrettable, but, again, absent exceptional circumstances, insufficient to rise to the level of irreparable harm.

The final layer of exceptionality surfaces in the balance of convenience test. Under this test, an applicant must establish that the harm they would suffer if the stay were refused is greater than the harm suffered by the government if the stay were granted. This exercise therefore weighs private against public interests. This brings us back to the underlying legal landscape and the presumption that laws are presumed to “produce a public good.” By analogy, it is also “presumed that an action that suspends the effect of an order made in the public interest (as would an interlocutory stay) is detrimental to the public interest” (2022 FC 336 at para 57).

The public interest at issue here is the maintenance of statutory programs and the efforts of those responsible to carry them out. As the Federal Court has stated, “[t]his is not simply a question of administrative convenience, but implicates the integrity and fairness of, and public confidence in, Canada's system of immigration control” (2008 FC 374 at para 7). Therefore, “[o]nly in exceptional cases will the individual’s interest, which on the evidence is likely to suffer irreparable harm, outweigh the public interest” (2008 FC 374 at para 26). Notably, a serious issue, in and of itself, demonstrating irreparable harm, “does not establish a balance of convenience” in an applicant’s favor (2010 FC 83 at para 49). The “dramatic step of suspending the operation of legislation cannot be taken lightly” (2004 FC 464 at para 34). ?

It is difficult not to get lost in all of this exceptionality and not to be deterred by the Matryoshka doll that is administrative deferral jurisprudence. The limited possibility of obtaining a deferral of removal seems rather ineffective and unrealistic in functioning as the last “safety valve” within the Canadian deportation regime. The concept of exceptionality is mobilized by CBSA officers and courts to effectively close the safety valve for a majority of applicants. Deferral, despite its stated purpose of “alleviat[ing] harsh effects” (2021 FCA 72 at para 45) caused by the Immigration Act is largely theoretical, seldomly a reality.?