Date: 20250103
Docket: IMM-24367-24
2025 FC 21
Ottawa, Ontario, January 3, 2025
PRESENT: Madam Justice Azmudeh
BETWEEN:
YONGJIAN XIAO
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
ORDER AND REASONS
UPON MOTION on behalf of the Applicant, Youngjian Xiao, for an Order staying his removal from Canada to China, now scheduled for January 5, 2025, pending the determination of his spousal sponsorship application filed on November 3, 2023;
AND UPON CONSIDERING the relevant factual background to this matter, which may be summarized as follows;
The Applicant is a citizen of People’s Republic of China. He made a refugee claim upon his arrival in Canada in 2004, which was refused by the Refugee Protection Division on April 20, 2005, largely due to lack of credibility. His Pre-Removal Risk Assessment was also rejected on or about March 18, 2009;
The Applicant failed to appear for removal in April 2009 when he would have obtained his negative PRRA decision. As a result, a warrant for his arrest was issued on April 16, 2009, which was executed on January 30, 2024. He was then released on terms and conditions, and there is no evidence to suggest that he has violated any of its terms;
In 2013, and without an immigration status, the Applicant started cohabiting with his current Canadian spouse and their Canadian-born daughter. Once he was able to apply for and obtain a new passport, his wife filed an inland spousal sponsorship application in November 2023. The application is still pending and the Applicant wishes to obtain a stay of removal until it is decided;
On November 15 and December 6, 2024, the Applicant made submissions for a request to defer his removal based on the pending sponsorship application filed in November 2023. The Applicant had included evidence that he and his wife were the parents of a 16-year-old daughter together, and that they have all been living together since 2013. This evidence was also referenced by the arresting officer in January 2024 as well, and does not seem to be in dispute. The Applicant and his wife’s sworn evidence included information on the integrated life of the family, which included a back and forth move between Toronto and Winnipeg, and the Applicant’s closeness with the couple’s daughter;
Since the Applicant’s spousal application was submitted after he was already removal-ready, the Applicant does not automatically benefit from a stay under “the public policy to facilitate processing in accordance with the Regulations of the Spouse or Common-law Partner in Canada Class” [Public Policy] under subsection 25(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA];
On February 21, 2024, Immigration, Refugees and Citizenship Canada [IRCC] confirmed that the Applicant’s wife was found to be eligible as a spouse, and on April 17, 2024, informed the Applicant that his file had been moved to the Etobicoke office. In July 2024, IRCC then made a request for additional documents, with which the Applicant complied by sending approximately 18 supporting documents. It is clear that the file has been actioned and is moving along;
On December 18, 2024, the Canada Border Services Agency [CBSA] rejected the deferral request. The deferral was not granted, in particular because “the processing time of 12 months no longer applies as the application has been transferred to a different officer for further submissions” and there is “insufficient evidence” that the decision is imminent or forthcoming;
AND UPON CONSIDERING that for this Court to grant the motion, the Applicant must meet the requirements of a tripartite test set out by the Federal Court of Appeal in Toth v Canada (Minister of Citizenship and Immigration), 86 NR 302, 1988 CanLII 1420 (FCA) [Toth], and by the Supreme Court of Canada in both RJR-MacDonald Inc v Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 SCR 311 [RJR] and in R v Canadian Broadcasting Corp, 2018 SCC 5 at paragraph 12, namely (1) that there be a serious issue to be tried i.e., an issue that is not frivolous nor vexatious, (2) that the Applicant suffer irreparable harm by reason of removal, and (3) that the balance of convenience lie in the Applicant’s favour;
AND UPON CONSIDERING that on the serious issue branch of the test, in a case such as this, the Applicant must demonstrate a “likelihood of success” or “quite a strong case” in regard to the underlying application for leave and judicial review (Wang v Canada (Minister of Citizenship and Immigration), 2001 FCT 148, [2001] 3 FC 682 [Wang]; Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 at para 67 [Baron]; Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at para 43 [Lewis]);
AND UPON CONSIDERING that on the irreparable harm branch of the test, the Applicant must present clear, convincing, and non-speculative evidence at a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result unless the stay is granted. Such harm must be forward-looking. Further, harm must constitute more than a series of possibilities and may not be based on mere assumptions, speculation, or hypotheticals and contingencies (Glooscap Heritage Society v Canada (National Revenue), 2012 FCA 255 at para 31; Atwal v Canada (Minister of Citizenship and Immigration), 2004 FCA 427 at para 14; Ledshumanan v Canada (Public Safety and Emergency Preparedness), 2021 FC 1463 at paras 54–55);
AND UPON CONSIDERING that on the balance of convenience branch of the test, the public’s interest that the IRPA be enforced in an efficient, expeditious, and fair manner must also be considered. Section 48 of the Act provides that the removal order must be enforced “as soon as possible.” That public interest must be weighed against the potential harm to the applicant if a stay is not granted (Ibrahima v Canada (Public Safety and Emergency Preparedness), 2011 FC 607 at paras 66–68);
AND UPON CONSIDERING that the test for obtaining an Order staying removal from Canada is a conjunctive three-part test; all three parts of the test must be met on the balance of probabilities;
AND UPON CONSIDERING that a stay is a form of equitable relief requiring the exercise of the Court’s discretion having regard to all the relevant circumstances;
AND UPON CONSIDERING all the evidence and submissions advanced on behalf of the parties via videoconference, on January 3, 2025, the Court’s disposition of this motion is made for the following reasons:
Serious issue
The threshold to establish a serious issue to be determined is typically low. As confirmed by the Federal Court of Appeal in Harkat v Canada (Minister of Citizenship and Immigration), 2006 FCA 215 at paragraph 11, the Applicant must simply establish that the underlying application is not frivolous or vexatious;
However, a higher threshold applies in a case such as this. Where the stay is requested following a refusal to defer removal, the Applicant must demonstrate a “likelihood of success” or “quite a strong case” in regard to the underlying application for leave and judicial review (see Wang; Baronat para 67; Lewis at para 43);
I understand that the discretion of the officer deciding the deferral application is limited, and that the CBSA has a duty to enforce the removal order in a timely fashion, as per the application of section 48 of IRPA. However, the Applicant was requesting a short deferral until the sponsorship application, which was filed approximately 14 months ago and is expected to be decided imminently. Even if the exact time of the decision is uncertain, it is clear that the deferral request is for a temporary relief. This is consistent with the first deferral’s understanding that “[the] deferral of removal is a temporary measure. It is intended to alleviate exceptional circumstances”;
The Applicant had provided evidence of his family’s circumstances, including evidence of his ongoing and long-term relationship with his sixteen-year-old daughter;
The deferral decision lists the Applicant’s immigration history and concludes that the Applicant has adduced insufficient evidence that a decision on the sponsorship application is imminent or forthcoming because the file was transferred to the Etobicoke office of the IRCC, and the processing time of 12 months may no longer apply. Regardless, the delay in processing, when a decision must be made and the application has been pending for over 14 months (nine months of which has been at the Etobicoke office), does not adversely affect the temporary nature of the request for a short deferral;
The second deferral decision focuses on the fact that the Applicant does not qualify to enjoy an automatic stay under the Public Policy, and how, in the absence of such a procedural protection, the existence of a pending sponsorship application is no impediment to removal;
In maintaining such a narrow focus on the Public Policy, the reasons elide other vital elements submitted for the officer’s consideration. Most notably, the reasons do not contain an even passing reference to the Applicant’s family situation and the best interest of the couple’s teenage daughter, for whom there is evidence suggesting a close emotional bond with the Applicant. In fact, considerable evidence has been filed to the effect that he is a very significant source of support in his daughter’s life and various endeavours;
I reiterate further that the application was filed over 14 months ago and moved to the Etobicoke office approximately 9 months ago. Further documents were requested and submitted. While the officer acknowledged that the file was transferred to a “different office,” it does not appear that the temporary nature of the stay request, in the context of a moving file, was appreciated by the officer. Most importantly, it is the Respondent, in its broader sense, that can exercise control over how fast or slowly they process such applications. They should not be incentivized to delay such sponsorship applications in the hope that the removal would render them moot;
I find that the Respondent’s reliance on cases such as Adedapo v Canada (MPSEP), 2022 CanLII 105339 at paragraph 19 is misplaced in the present context. It can be distinguished from this case on several fronts, most notably due to the much shorter relationship, the absence of shared children, the fact that the sponsorship file was in the system for a shorter period than the posted processing time, and how the main reason for deferral in that case was a request to CBSA to contact IRCC to expedite the decision. Moreover, in that case, the Court found that the applicant had already enjoyed a five-month deferral and found a further request to be unreasonable when the perfected application was filed recently and not within the processing timelines;
The Respondent’s reliance on Liang v Canada (Public Safety and Emergency Preparedness), 2021 CanLII 49283 (FC) at paragraphs 11–14 is likewise misplaced. In that case, the underlying reason for the deferral request was to care for a father-in-law. The best interests of the child were not engaged;
What these deferral reasons showcase is a failure to engage at all with the evidence on the Applicant’s role in the daughter’s life. This is a very serious issue;
Since there is no analysis whatsoever on the effects of the removal on the best interest of the child, the reasons are completely unresponsive to the material evidence presented. To this effect, it is worth emphasizing exactly why exactly responsiveness matters in the present context (see generally Banovic v Canada (Citizenship and Immigration), 2024 FC 1990 at para 67). Administrative decision-makers are expected to be responsive to the central issues presented to them in the parties’ submissions (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 127 [Vavilov]). This is especially the case the “more important the decision is to the lives of those affected and the greater its impact on that person or those persons” (Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817 at para 25; Vavilov at para 133). Of course, one cannot expect administrative decision-makers to respond to every argument submitted to them. However, the core issue is that “a decision-maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision-maker was actually alert and sensitive to the matter before it” (Vavilov at para 128). Abiding by a “culture of justification” means guarding against such a failure (Vavilov at para 14);
At this juncture, it seems necessary to note the guidance available to me in Bonil Acevedo v Canada (Public Safety and Emergency Preparedness), 2007 FC 401 at paragraph 25, wherein Justice Shore reiterated that even if removal officers lack the discretion to make a full determination on the best interest of the child, they have the discretion to defer removal until such time that the best interest of the child is fully considered. At all times, but especially in cases such as these, administrative decision-makers should be careful to not eschew the powers they were intended to have (Al-Lamy v Canada (Citizenship and Immigration), 2024 FC 1621 at para 11);
B. Irreparable harm
- On the issue of irreparable harm, the parties rely on the jurisprudence of this Court, with which I agree and I will follow, to argue that when there is “real, definite” evidence of death and serious harm, irreparable harm is made out. He also relies on other cases to argue that this Court has occasionally recognized that irreparable harm is established when the removal of the Applicant will have a significant detrimental impact on the financial, emotional and practical situation of his wife and child. I agree with him, and find that his circumstances are analogous to those in Awale v Canada (Public Safety and Emergency Preparedness), 2020 FC 1138 at paragraphs 31–32, citing Ismail v Canada (Public Safety and Emergency Preparedness), 2019 FC 845 at paragraph 16 (see also the discussion in Galusic v Canada (Public Safety and Emergency Preparedness), 2020 FC 223 at paras 22–42). For clarity’s sake, I will reproduce the relevant paragraphs here below:
[31] The Applicant’s wife is pregnant with twins, who are due to arrive on or around April 2, 2021. The evidence shows that the Applicant’s wife spent a week in hospital for treatment of vomiting and nausea associated with her pregnancy. There is no evidence of any ongoing medical treatment beyond the usual monitoring during pregnancy. Although the Applicant’s wife has been able to find employment, she works as a casual Personal Care Worker, and her earnings from late August to late November of this year amount to just over $2,200. The Applicant has been employed full-time since 2018, and the evidence is consistent with the conclusion that he is the main income earner for the family.
[32] These considerations are determinative in regard to irreparable harm. The removal of the Applicant now will have a significantly detrimental impact on the financial, emotional, and practical situation of his wife and unborn children between now and the birth of the twins, and the immediate aftermath as the family adjusts to life with two babies; it will also thereby have a significantly negative impact on the Applicant (see Ismail v Canada (Public Safety and Emergency Preparedness), 2019 FC 845 at para 16, and the discussion in Galusic v Canada (Public Safety and Emergency Preparedness), 2020 FC 223 at paras 22–42).
The Applicant adduced sworn evidence regarding how his wife and daughter rely on him for financial and emotional support, which directly affects the best interest of the child;
The deferral officer has the discretion to assess the best interest of the child with respect to the child’s short-term interest (Lewisat para 61). I agree, and this is what the Applicant had also requested in the context of his approximately short-term stay request until the sponsorship application is decided;
I also note that in Ganeshalingam v. Canada (Public Safety and Emergency Preparedness), 2023 FC 1129, this Court found the effects on the Canadian citizen spouse and Canadian children to be relevant factors to assess for irreparable harm. The Applicant and his wife had adduced evidence of the Applicant’s crucial role in the family (Barrios v. Canada (Public Safety and Emergency Preparedness), 2024 CanLII 114241 (FC));
I also note that this Court has held that separating a genuine spousal couple constitutes irreparable harm. The Applicant’s wife and their sixteen-year-old daughter are Canadian citizens and had adduced evidence of the effect of removal on the family (see Wiltshire v Canada (Minister of Citizenship and Immigration) [2000] FCJ No 571). I agree with the Respondent that irreparable harm cannot be cured or compensated with damages. The Applicant has adduced evidence of the deleterious emotional impact on the family, which cannot be measured with money;
The removal of the Applicant prior to the final determination of his Application for leave and judicial review of the deferral decisions would potentially render his Application moot (Solis Perez v Canada (Citizenship and Immigration), 2009 FCA 171 at para 5). I acknowledge that the Respondent argued that it is open for the Applicant’s wife to apply from overseas. While generally true, given the immediate needs of the family that the Applicant fulfills, the eventual processing of an overseas application does not negate the more imminent nature of the irreparable harm in question;
I find that in this case, the second part of the test, i.e., the irreparable harm, is rationally connected to the serious question to be tried. I find that the loss of the right to seek a meaningful and effective remedy in the underlying proceeding amounts to irreparable harm in this case;
C. Balance of convenience
On balance of convenience, the fact that the Applicant has met the first two parts of the test, the first on the higher threshold, tips the balance for the third prong in their favour. Dismissing the stay would deprive the Applicant of the right to a meaningful remedy, and he is the party who would suffer a greater harm from an unfavourable decision by this Court (SKGO v Canada (Citizenship and Immigration), 2023 FC 83 at para 15);
To meet this third part of the test, the Applicant must establish that the harm he would suffer if the stay is refused would be greater than the harm the Respondent would suffer if the stay is granted, assessed in the context of the interests that will be affected by the Court’s decision. This weighing exercise is neither scientific nor precise (Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2020 FCA 181 at para 17 [Canadian Council for Refugees]). Yet it resides at the heart of the determination of what is just and equitable in the particular circumstances of the case at hand;
In assessing the balance of convenience, in addition to the Applicant’s private interests, the public interest must be taken into account, since this is a case involving the actions of a public authority (RJR-MacDonald at 350). As the Respondent submitted, the Applicant is subject to a valid and enforceable removal order, and he lived in Canada without proper status for an extended period. The removal order was made pursuant to statutory and regulatory authority. It is therefore presumed to be in the public interest. Further, under subsection 48(2) of the IRPA,a removal order “must be enforced as soon as possible” once it is enforceable. It is also presumed that an action that suspends the effect of the order (as would an interlocutory stay) would be detrimental to the public interest (RJR-MacDonald at 346, 348–49). Whether this is sufficient to defeat a request for an interlocutory stay in a given case will, of course, depend on all the circumstances of the case. This can also depend on how long the effect of the deportation order would be suspended (Canadian Council for Refugeesat para 27);
In the case at hand, the Applicant has established that there is a serious issue and that he and his family will suffer irreparable harm if the deferral is not granted. His immigration law non-compliance was mainly his lack of status, which while significant, has not resulted in undermining any of the proceedings. I find that it does not outweigh the decision-maker’s disregard of the best interest of the child;
In determining whether the applicant is entitled to this relief, the fundamental question is whether the granting of a stay is just and equitable in all of the circumstances of the case. This will necessarily be a context-specific determination (Google Inc v Equustek Solutions Inc, 2017 SCC 34 at para 25). I find that the totality of the evidence and the fact that he has met the first two prongs of the Toth test tip the balance in his favour.
THIS COURT ORDERS THAT:
- The Applicant’s motion to stay him removal is granted. His removal will be stayed until his spousal sponsorship application is decided.
- There is no order as to costs.
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“Negar Azmudeh”
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Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
IMM-24367-24
STYLE OF CAUSE:
YONGJIAN XIAO V THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
PLACE OF HEARING:
HELD BY VIDEOCONFERENCE
DATE OF HEARING:
JANUARY 3, 2025
ORDER AND REASONS:
azmudeh j.
DATED:
JANUARY 3, 2025
APPEARANCES:
Wennie Lee
For The Applicant
Laoura Christodoulides
For The Respondent
SOLICITORS OF RECORD:
Lee and Company Barrister & Solicitor Toronto, Ontario
For The Applicant
Attorney General of Canada Toronto, Ontario
For The Respondent