Kumar v. Canada (Citizenship and Immigration), 2026 FC 101

Date: 20260122

Docket: IMM-540-26

Citation: 2026 FC 101

Ottawa, Ontario, January 22, 2026

PRESENT: The Honourable Madam Justice Ferron

BETWEEN:

JAI KUMAR

PARVINDER KAUR

PRABHDEEP BHAGAT

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

ORDER

UPON a motion brought by the Applicants, filed on January 14, 2026, and heard by videoconference on January 21, 2026, for a stay of the execution of their removal order, which is scheduled for January 25, 2026 at 4:50PM [the Stay Motion], pending the Court’s determination as whether leave will be granted on their application for leave and judicial review filed on January 13, 2026 [ALJR] and targeting what they called a “deemed refusal” (given that no decision has been rendered when they filed their ALJR), with respect to their administrative request to the Canadian Border Services Agency [CBSA] seeking a deferral of their removal dated January 2, 2026, and if leave is granted, the stay to remain in effect until the Court has rendered its final decision on the application for judicial review;

AND UPON considering that according to paragraph 13c) of the Consolidated Practice Guidelines for Citizenship, Immigration and Refugee Protection Proceedings, as amended on December 31^st, 2025 [Practice Guidelines], the motion record supporting a motion for a stay of removal should not exceed one hundred pages, except in exceptional circumstances. Further, “[w]here a Motion Record exceeds this page limit, the party submitting the record should explain why all the documents in the record are required for the adjudication of the stay motion. This explanation should be provided in a letter accompanying the Motion Record when it is submitted for filing”;

AND UPON noting that while, in the case at bar, the Applicants’ record includes 173 pages and no explanatory letter was attached, the Court exercised its discretion and nonetheless reviewed the complete record;

AND UPON considering the affidavit of the Principal Applicant, sworn January 13, 2025, wherein he refers to a pending application for judicial review of a PRRA [Pre-Removal Risk Assessment] decision and a pending H&C [Humanitarian and Compassionate] reconsideration request, and whereby he encloses the request for an administrative deferral of removal to the CBSA as an exhibit;

AND UPON considering the affidavit of a legal assistant for the Department of Justice filed by the Respondent, enclosing notably 1) the decision of this Court dismissing the PRRA application for judicial review dated December 15, 2025; 2) the decision of IRCC refusing the Applicants’ request to reopen their H&C application dated January 14, 2026; and 3) the CBSA decision dated January 15, 2026, dismissing the Applicant’s request for an administrative deferral of their removal [CBSA Decision], all of which were communicated to the Applicants after the Principal Applicant swore his affidavit;

AND UPON consideringthe parties’ written submissions, as well as having heard the parties’ oral submissions;

AND UPON considering, amongst others, the Applicants submissions that the CBSA officer’s refusal of their request for an administrative deferral of removal is unreasonable because it “failed to meaningfully engage with the overwhelming evidence of irreparable harm to the Applicants and, in particular, the best interest of their two minor children”, including the need for medical and developmental services for the children (their son suffers from hyperactivity and anxiety and “requires medication, pedo-psychology, and special-needs educational services” that he currently receives in Quebec and their daughter has “severe speech and language delay” necessitating “ongoing speech-language therapy and early childhood intervention”), as well as the mental health of both parents (they suffer from PTSD and receive treatment for it), all of which they claim are not realistically accessible in India;

AND UPON considering the summary of the relevant facts, as described by the Attorney General of Canada [AGC], which the Court considers sufficient for the purposes of the present Order, and which reads as follows:

• 5)The Applicants are citizens of India. They came to Canada on temporary residence visas on September 17, 2019.
• 6)On November 11, 2019, they claimed asylum.
• 7)On March 25, 2022, the Refugee Protection Division (RPD) of the Immigration and Refugee Board rejected the Applicant’s refugee protection claim, after finding that they were not credible.
• 8)The Applicants appealed this decision. On August 16, 2022, the Refugee Appeal Division (RAD) of the Immigration and Refugee Board dismissed their appeal, finding that they were not credible.
• 9)The Applicants submitted an Application for leave and judicial review of the RAD’s decision. On March 24, 2023, Madam Justice Walker dismissed this Application.
• 10)On May 2, 2023, the Applicants submitted an application for permanent residence based on humanitarian and compassionate grounds (H&C application) to Immigration, Refugees and Citizenship Canada (IRCC).
• 11)On December 16, 2024, the Applicants submitted a Pre-removal risk assessment (PRRA) application to IRCC.
• 12)On March 5, 2025, the Applicant’s H&C and PRRA applications were refused by IRCC.
• 13)On April 29, 2025, a Case Enforcement Officer held a removal interview with the Applicants.The PRRA and H&C decisions were delivered to them in person. The Applicants were told they would be reconvoked to start the process of obtaining a travel document for Prabhdeep [their son].
• 14)On May 13, 2025, the Applicants submitted an Application for leave and judicial review with respect to the PRRA decision. This application was dismissed by Mr. Justice Grammond on December 15, 2025.
• 15)On May 14 and June 13, 2025, the Applicants had interviews with a Case Enforcement Officer in order to complete the paperwork to obtain the travel document.
• 16)On December 2, 2025, the Applicants requested a reconsideration of the decision refusing their H&C.
• 17)On December 17, 2025, the Applicants had an interview with a Case Enforcement Officer and were told that their removal was set for January 25, 2026, at 16:45.
• 18)On January 2, 2026, the Applicant requested a deferral of the removal to the Case Enforcement Officer.
• 19)On January 14, 2026, the Applicants submitted an Application for leave of what they called a “deemed refusal” given the absence of a decision being rendered on their request for deferral.
• 20)On January 14, 2026, IRCC refused the Applicants’ request to reopen their H&C application.
• 21)On January 15, 2026, a Case Removal Officer considered all the grounds set forth in the request for deferral and the evidence on file and refused to defer removal.

AND UPON considering the tri-partite test in Toth v Canada (Minister of Employment and Immigration), 1988 CanLII 1420 (FCA) [Toth], according to which it must be demonstrated that:

(i) a serious issue exists;

(ii) the Applicants would suffer irreparable harm if their removal was not stayed; and

(iii) the balance of convenience favours staying their removal;

AND UPON considering that the Toth test is conjunctive so that, to succeed, applicants bear the burden of proving that they satisfy all three of its elements (Janssen Inc v Abbvie Corporation, 2014 FCA 112 at paras 14, 19 [Janssen]);

AND UPON considering that the Tothtest is “necessarily context-specific” in its application because “[u]ltimately, the question is whether granting the injunction would be just and equitable in all the circumstances of the case” (Google Inc v Equustek Solutions Inc, 2017 SCC 34 at paras 1, 25);

AND UPON considering that a stay is an “extraordinary remedy” that requires an applicant to demonstrate “special and compelling circumstances” warranting exceptional judicial intervention (Harkat v Canada (Minister of Citizenship and Immigration), 2006 FCA 215 at para 10; Kumar v Canada (Citizenship and Immigration), 2025 CanLII 81909 (FC) at para 9);

AND UPON considering that, contrary to the Applicants submissions regarding a low threshold, when the underlying ALJR concerns the dismissal of a request for an administrative deferral of removal, the threshold for the first prong of the test is heightened so the Applicants need not merely prove that their case is neither frivolous nor vexatious but instead have to establish that their ALJR has a “likelihood of success” or raises “quite a strong case” (Benny v Canada (Public Safety and Emergency Preparedness), 2025 FC 509 at paras 15, 17 citing Wang v Canada (Minister of Citizenship and Immigration), 2001 FCT 148 at paras 10-11 [Wang]; Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 [Baron] at para 67);

AND UPON considering what the Court stated in Wang regarding the limited discretion of the decision maker to defer removal:

[8] […] But where the motion for a stay is in relation to a refusal to defer removal, the fact of granting the stay gives the applicant that which the removal officer refused him/her. Since the decision in issue in the application for judicial review is the refusal to defer removal, granting the stay gives the applicant his/her remedy before the merits of the application for judicial review have been addressed. It is in this sense that one can say that the disposition of the motion for a stay of execution decides the underlying application for judicial review.

[10] […] I am therefore of the view that where a motion for a stay is made from a removal officer’s refusal to defer removal, the judge hearing the motion ought not simply apply the “serious issue” test but should go further and closely examine the merits of the underlying application.

[47] To summarize, the discretion to defer removal is a discretion vested in the Minister as opposed to the individual who is responsible for making the arrangements for removal. That person acts as the Minister’s representative for the purpose of exercising that discretion, but this does not mean that the discretion is tailored to that individual’s actual or perceived level of authority. The discretion is bounded only by the terms of the Act dealing with removals. The Minister is under a positive obligation to execute removal orders, which are lawful orders, generally made by persons other than the Minister who hold designated offices with a specific grant of authority to make such an order. These orders are not mere administrative arrangements which the Minister can alter at her convenience. In fact, the Minister is precluded from issuing a Ministerial permit to a person who is subject to a removal order which is compelling evidence that the Minister is intended to execute removal orders as opposed to rendering them ineffective.

[48] It has been recognized that there is a discretion to defer removal though the boundaries of that discretion have not been defined. The grant of discretion is found in the same section which imposes the obligation to execute removal orders, a juxtaposition which is not insignificant. At its widest, the discretion to defer should logically be exercised only in circumstances where the process to which deferral is accorded could result in the removal order becoming unenforceable or ineffective. Deferral for the mere sake of delay is not in accordance with the imperatives of the Act. 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 readmitting the person to the country following the successful conclusion of their pending application. Family hardship cases such as this one are unfortunate but they can be remedied by readmission.

[Underlining added]

AND UPON considering that to establish irreparable harm, the Applicants must demonstrate that there is “real, definite, unavoidable harm – not hypothetical and speculative harm” (Janssen at para 24). They must adduce clear and non-speculative evidence that irreparable harm will follow if the stay is refused. Unsubstantiated assertions of harm will not suffice. Instead, “there must be evidence at a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result” unless the stay is granted (Glooscap Heritage Society v Canada (National Revenue), 2012 FCA 255 at para 31; see also United States Steel Corporation v Canada (Attorney General), 2010 FCA 200 at para 7, International Longshore and Warehouse Union, Canada v Canada (Attorney General), 2008 FCA 3 at para 25);

AND UPON finding that the Applicants have not met theToth test and therefore, their application will be dismissed for the following reasons:

1. The Court is far from convinced that the underlying ALJR raises a strong prima facie case against the very detailed CBSA Decision, which, amongst other elements, clearly indicates that the Applicants failed to produce some of the documentation required, including notably any evidence that actual treatment is currently underway and would be disrupted if a deferral of their removal was not granted, and addresses each and every submission made and the exhibits produced by the Applicants. The first prong of the Tothtest is therefore not met.
2. The arguments raised by the Applicants regarding the irreparable harm that would result from a removal while their ALJR of the PRRA decision and their request for a reconsideration of their H&C application were still pending have been rendered moot by the decisions rendered on December 15, 2025, and January 14, 2026, respectively.
3. As for the fact that the Applicants’ ALJR of the CBSA Decision is still pending, this does not prevent the enforcement of a valid removal order. Indeed, an ALJR may proceed regardless of where an applicant is located. This, therefore, does not constitute irreparable harm (Shpati v Canada (Public Safety and Emergency Preparedness), 2011 FCA 286 at para 38 citing El Ouardi v Canada (Solicitor General), 2005 FCA 42 at para 8; Demir v Canada (Public Safety and Emergency Preparedness), 2022 CanLII 48454 (FC) [Demir] at para 10; Garrick v Canada (Citizenship and Immigration), 2022 FC 317 at paras 19-22).
4. Given that all deportations from Canada do, unavoidably, come with hardships, the harm alleged must exceed the inherent consequences of removal for a stay to be warranted (Palka v Canada (Public Safety and Emergency Preparedness), 2008 FCA 165 [Palka] at para 12); whereas disruption to family life is an inevitable consequence of all removals (Baron at para 69 cited in Salonga v Canada (Public Safety and Emergency Preparedness), 2025 CanLII 2810 (FC) at para 23; Egbochie v (Public Safety and Emergency Preparedness), 2022 CanLII 44744 (FC)).
5. Moreover, while the Applicants argue that the CBSA officer did not properly consider the best interest of their children, when asked to defer a removal, although they may have to “engage in a truncated consideration of the short-term best interests of children who might be affected by their parents’ removal”, officers are not bound to undertake a substantive review of the children’s best interests over the long term (Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at paras 54-61; Baronat para 50).
6. In the case of the Applicants, both when it comes to parents and children, their submissions are based on needs that are on-going and long term. A short deferral of removal, such as the one that the CBSA officer could have granted, would not have prevented the irreparable harm they claim that they risk incurring, so the Court cannot fault the officer for failing to consider these (Varela Sanchez v Canada (Public Safety and Emergency Preparedness), 2025 CanLII 110326 (FC) at para 23 citing Estey v Canada (Public Safety and Emergency Preparedness), 2025 CanLII 15257 (FC) at para 21; Gill v Canada (Public Safety and Emergency Preparedness), 2020 FC 1075 at paras 18-19 cited in Varela Garrido v Canada (Public Safety and Emergency Preparedness), 2022 FC 1804 at para 16).
7. In the present matter, the Court agrees with the findings of the CBSA that the Applicants have failed to demonstrate the level of irreparable harm required. For instance, as the officer noted in the very detailed CBSA Decision, the documentation provided by the Applicants regarding the condition of their Canadian-born daughter indicates that, although an evaluation of her condition did start/was initiated (after the removal process had begun), she remains awaiting a more in-depth assessment, and no evidence that any follow-up care happened was adduced. The decision maker also noted that no evidence of a specific diagnostic or treatment plan had been provided. As for the Applicants’ 8-year-old son, while the Applicants provided proof of a diagnosis alongside a prescription and evidence that the school board did propose a school intervention plan; the record does not show that the medication prescribed would not be available in India, nor that the eight-year-old is currently benefiting from ongoing medical services, nor that the proposed school intervention plan was approved by his parents and would currently be in place. As relates to this school intervention plan, the CBSA officer further noted that no copy of this plan was produced.
8. Regarding the psychologist’s letters about the Applicants’ PTSD diagnosis, here too there is no evidence of an on-going treatment. Furthermore, the decision-maker could legitimately give these letters little weight given i) the moment when they were obtained, ii) the fact that they resulted from 2-hour interviews only, and iii) the fact that they were based on the Applicants’ persecution allegations that the RPD and the RAD already found to lack credibility. The CBSA Decision is on this point completely in line with this Court decision in Palka:

[17] Jadwiga relies on a report from a psychologist stating that a return to Poland would cause her psychological harm. In my view, this is an insufficient evidential basis to establish irreparable harm. First, the report was based largely on what Jadwiga told the psychologist about her experiences; however, the Board has found her evidence of spousal abuse to be non-credible, a decision which the PRRA officer held was not overcome by new evidence. Second, Jadwiga and the psychologist had only one meeting and there was no evidence of any follow-up treatment. Third, the report was prepared in 2006 to assist Jadwiga in her efforts to remain in Canada on H&C grounds and is thus, to an extent, self-serving. Fourth, stress and depression caused by the prospect of removal from Canada are of little relevance in this context since they are inherent in the enforcement of the Act.

1. Moreover, whilethe Principal Applicant pleads that his business cannot be properly wound down and his house cannot be sold in due course if the removal proceeds as scheduled, which could result in substantial financial harm to the Applicants, and could be a relevant consideration (Del Arenal Puente v Canada (Public Safety and Emergency Preparedness), 2023 CanLII 23989 (FC) at para 13 citing Toth), as the CBSA rightly indicated, not only has the Principal Applicant not provided any evidence of owning a property or having a business, but given that the Applicants’ removal interview dates back to April 2025, the necessary steps could have been taken since then to reduce the alleged financial harm.

2. Finally, while the Applicants submit that the CBSA Decision contains various factual errors, the Court is of the view that such allegations are rather unlikely to be sufficient to render it unreasonable. As the Supreme Court explained, “reasonableness review is not a “line-by-line treasure hunt for error” so not every error arises to the level of the kind of “fatal flaw” that will warrant quashing on judicial review” (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 102). Justice Gascon’s decision in Tiben v Canada (Citizenship and Immigration), 2020 FC 965 at para 24, is worth repeating here:

[24] Mr. Tiben and the Dependant Applicants have not identified how any of the alleged errors of fact has adversely impacted the ultimate Decision. I do not dispute that minor errors can have a cumulative effect, that they can sometimes seriously distort a decision maker’s assessment (Sarkis v Canada (Minister of Citizenship and Immigration), 2006 FC 595 at para 13), and that multiple errors of fact can suggest inattentiveness to the details of the case and undermine the decision as a whole (Garmenova v Canada (Minister of Citizenship and Immigration), 2004 FC 414 at para 11). However, many small, immaterial errors are not enough to render a decision unreasonable (Bhatia v Canada (Citizenship and Immigration), 2017 FC 1000 [Bhatia] at para 29; Canada (Public Safety and Emergency Preparedness) v Louis, 2016 FC 172 at para 29; Guerrero Moreno v Canada (Citizenship and Immigration), 2011 FC 841 at para 15). An imperfect decision can still be a reasonable one. The standard of review is not concerned with the Decision’s degree of perfection but rather its reasonableness (Vavilov at para 91). A decision should be upheld as long as the reviewing court can “trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic” (Vavilov at para 102). This is the case here.

1. Therefore, given that the evidence adduced “does not demonstrate a real probability that unavoidable irreparable harm will result unless the stay is granted”, the second prong of the Tothtest is also not met.

2. In the absence of any countervailing public interest favoring the Applicants, the balance of convenience also weighs in favour of the Respondent exercising his duty under s 48 of the Immigration and Refugee Protection Act, SC 2001, c 27, to ensure that the removal of foreign nationals, subject to enforceable removal order, proceeds without undue delay. “[A]ny action that suspends the effect of the order (as would an interlocutory stay) is therefore presumed to be detrimental to the public interest” (Ghanaseharan v Canada (Minister of Citizenship and Immigration), 2004 FCA 261 at para 22; Lopez Escobar v Canada (Citizenship and Immigration), 2023 CanLII 93068 (FC); Dugonitsch v Canada (Minister of Employment and Immigration), [1992] FCJ No 320 (FC) at para 15).

3. As stated by the Federal Cour of Appeal in Palkaat paras 21-22:

True, the (Applicants) have been in Canada for (several) years, and appear to have been successful in establishing themselves and to have led blameless lives. Given the length of time that they have been here, the presence of family members in Canada, the health (…) and the enhanced life opportunities available to them, it is very understandable that they wish to remain.

However, that is not the test on a motion for a stay of removal. Despite numerous

attempts, through administrative and legal channels, they have been denied status in Canada. There has to be some finality. To grant yet another deferral of their removal is contrary to the public interest as expressed in the Act. The appellants have not persuaded me that their interest in remaining outweighs the public interest in the due enforcement of the law. I decline to defer their removal yet again.

THIS COURT ORDERS that:

1. The Applicants’ motion for a stay of their removal from Canada is dismissed;

2. No costs are awarded.

"Danielle Ferron"

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Judge