Arvind v. Canada (Citizenship and Immigration), 2026 FC 349

Date: 20260313

Docket: IMM-19299-25

Citation: 2026 FC 349

Ottawa, Ontario, March 13, 2026

PRESENT: The Honourable Mr. Justice Duchesne

BETWEEN:

ARVIND

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

ORDER AND REASONS

UPON THE MOTION by the Applicant for an Order staying his removal from Canada to India, which removal is scheduled for March 16, 2026;

AND UPON READING and CONSIDERING the materials filed by the parties in support of their respective positions on the Applicant’s motion;

AND UPON HEARING and CONSIDERING the oral submissions made by the parties by videoconference on March 13, 2026;

AND CONSIDERING that an order staying a removal is a form of extraordinary equitable relief requiring the exercise of the Court’s discretion having regard to all of the relevant circumstances, that the applicable test is highly contextual and fact dependent, and that “Ultimately, 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 para 1);

AND CONSIDERING that to be successful on this motion the Applicant must satisfy the conjunctive tripartite test described in Toth v Canada (Minister of Citizenship and Immigration),1988 CanLII 1420 (FCA), 86 NR 302 [Toth] and in RJR-MacDonald Inc v Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 SCR 311 [RJR-MacDonald].

AND CONSIDERING that this legal test requires that the Applicant demonstrate that, 1) their application raises a serious issue to be tried; 2) they would suffer irreparable harm if their removal is not stayed; and 3) the balance of convenience favours staying their removal. The test is conjunctive (Janssen Inc v Abbvie Corporation, 2014 FCA 112 at para 14) in that the “failure of any of the three elements of the test is fatal”(Canada (Citizenship and Immigration) v Ishaq, 2015 FCA 212 at para 15), even though the three parts of the test are not “watertight compartments” (Pak v. Canada (Public Safety and Emergency Preparedness), 2025 FC 1898, at para 24, and the jurisprudence cited therein [Pak]);

AND CONSIDERING that the threshold for establishing a serious question to be determined is generally low, and that the judge on the stay motion must make a preliminary assessment of the merits of the case to ascertain whether the application is neither vexatious nor frivolous and, if satisfied that the proceeding is neither vexatious of frivolous, then proceed to consider the second and third prongs of the test, even if of the opinion that the applicant is unlikely to succeed on the merits (RJR-MacDonald, at page 337);

AND CONSIDERING that, in the absence of serious grounds to challenge an administrative decision, a stay pending judicial review amounts to no more than a free-standing request for delay which is not justified in light of subsection 48(2) of the Immigration and Refugee Protection Act, SC 2001, c 27[IRPA], which requires a removal order to be enforced “as soon as possible” (Ogunkoya v Canada (Citizenship and Immigration), 2021 FC 679 at para 6);

AND CONSIDERING that the second prong of the test requires that the moving party establish that irreparable harm would be suffered between the date of removal and the hearing of their proceeding on the merits without the stay being granted;

AND CONSIDERING that the prejudice to be established must be more than the harm or prejudice that is inherent in the removal process, and that the moving party has the onus to present clear and non‑speculative evidence at a convincing level of particularity demonstrating a real probability that unavoidable irreparable harm will result in the absence of the extraordinary remedy of a stay (Glooscap Heritage Society v Canada (National Revenue), 2012 FCA 255 at para 31 [Glooscap]; Erhire v Canada (Public Safety and Emergency Preparedness), 2021 FC 941 at para 65);

AND CONSIDERING that the harm alleged and proven must constitute more than a series of possibilities and may not be based on mere assumptions, speculation or hypotheticals and contingencies, or assertions (Atwal v Canada (Citizenship and Immigration), 2004 FCA 427 at paras 14-15);

AND CONSIDERING that the last prong of the test requires balancing the prejudice the applicant would suffer if removed against the prejudice suffered by the Respondent who would be prevented for enforcing the law, and determining who would suffer the greatest harm from the granting or refusal of the stay (Metropolitan Stores (MTS) Ltd v Manitoba Food & Commercial Workers, Local 832, 1987 CanLII 79 (SCC), [1987] 1 SCR 110 at para 36; Universal Ostrich Farms Inc v Canada (Food Inspection Agency), 2025 FCA 164 at para 50);

AND CONSIDERING that the public interest favours having removal orders promptly enforced as scheduled and in the Respondent Minister exercising his statutory duty to apply the IRPA (Pak, at para 71). Section 48 of the IRPA requires the enforcement of removal orders as soon as possible, not simply a “question of administrative convenience, but as a matter that implicates the integrity and fairness of, and public confidence in, Canada’s system of immigration control” (Ghanaseharan v. Canada (Minister of Citizenship and Immigration), 2004 FCA 261 at para 22);

AND CONCLUDING that the Applicant’s motion for stay of his removal should be dismissed for the following reasons:

[1] The Applicant has filed an Application for leave and judicial review of a June 18, 2025, decision [the Decision] made by Immigration and Refugee Board of Canada’s Refugee Appeal Division [the RAD] that dismissed his appeal from an earlier decision of the Immigration and Refugee Board of Canada’s Refugee Protection Division [the RPD] that rejected his refugee claim. The RAD, like the RPD before it, found that the Applicant had failed to establish the basis of his refugee claim because his evidence was not credible and the documentary evidence he relied upon was inauthentic and gave rise to adverse inferences.

[2] The ALJR was filed on September 2, 2025. The ALJR contains allegations that the Decision “was communicated to the Applicant’s counsel on June 20, 2025, by way of counsel’s portal and was communicated to the Applicant on June 27, 2025”. Paragraph 72(2)(b) of the IRPA provides that, in the case of a matter arising within Canada (as is the case here), an application for leave and for judicial review with respect to a decision shall be filed within 15 days “after the day on which the applicant is notified or otherwise becomes aware of” the decision. The Applicant clearly commenced this proceeding well beyond the 15-day window for doing so.

[3] Paragraph 72(2)(c) of the IRPA provides that a judge of the Court “may, for special reasons, allow an extended time for filing and serving” an application for leave and for judicial review. Rule 6(1) of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22 (FCCIRPR), states that a request to extend the time for filing and serving an application for leave “shall be made in the application for leave.” Accordingly, Form IR-1 (the standard form for an application for leave – see Rule 5(1) of the FCCIRPR), provides that, if applicable, the notice shall state that the applicant applies for an extension of time to file and serve the application and shall set out the special reasons for the request for the extension of time. Under Rule 6(2) of the FCCIRPR, the request for an extension of time “shall be determined at the same time, and on the same materials, as the application for leave.”

[4] Justice John Norris of this Court recently considered the applicable jurisprudence on how to approach requests for an extension of time to commence an ALJR in the context of a motion for a stay of removal such as this one in Jesuthashan v. Canada (Citizenship and Immigration), 2025 FC 1826 [Jesuthashan]. Justice Norris held that the approach to be followed is to undertake a preliminary assessment of whether there is a reasonable possibility that an extension of time will be granted by the leave judge within the framework of the three-part test for a stay. If there is not a reasonable possibility for an extension of time to be granted, it will necessarily follow that the underlying application for judicial review does not raise a serious issue and the motion for a stay can be dismissed on this basis alone. If it appears that there is at least a reasonable possibility that an extension of time will be granted, then the focus should be on the merits of the stay motion under the three-part test. This approach of undertaking only a preliminary assessment of the merits of the request for an extension of time will ensure that the test for an extension of time and the test for a stay are not conflated, especially in relation to the merits of the underlying application for judicial review. I agree with Justice Norris and shall proceed as described in Jesuthashan.

[5] The test to be applied on the merits to determine whether an extension of time to commence an application for judicial review should be granted is the test developed pursuant to Rule 8 of the Federal Courts Rules, SOR/98-106 (the Rules) which applies here through Rule 4 of the FCCIRPR. The applicable test was discussed at length in Grewal v. M.E.I., 1985 CanLII 5550 (FCA) in the context of a request for an extension of time to bring an application to review and set aside a decision of the Immigration Review Board. That same test was reformulated in briefer terms in Canada (Attorney General) v. Hennelly, 1999 CanLII 8190 (FCA) and is routinely applied to requests for an extension of time to commence an application for judicial review (Muckenheim v. Canada (Employment Insurance Commission), 2008 FCA 249, at para 8). Succinctly stated, the applicable test is whether an applicant has shown that granting an extension of time is in the interest of justice. The Court’s consideration of what is in the interests of justice is guided by four questions to be answered in light of the applicant’s evidence filed in support of their request for an extension of time: (1) whether the party had a continuing intention to pursue the matter, which commenced before the relevant time limit expired; (2) whether there is a reasonable explanation for the delay throughout the entirety of the delay period; (3) whether there is some merit to the party’s application; and (4) whether there is no prejudice to the opposite party: Rafique v. Canada (National Revenue) 2023 FCA 112, 2023 A.C.W.S. 2239 at paras. 2-3; Canada (Attorney General) v. Larkman, 2012 FCA 204, Novotny v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 14762 at para 2, Beilin v. Minister of Employment and Immigration (1995), 88 F.T.R. 132 at 134). The interests of justice require that the Court not turn a blind eye to the lack of evidence supporting each of the factors set out in case law to consider granting such an extension (Clinique Gascon Inc. v. Canada, 2023 FC 1757, at para 37).

[6] In this case the Applicant has alleged in his ALJR that he seeks an extension of time to commence his application because:

i) He is a refugee claimant and faces a risk of harm in his home country, and it is imperative for him to file his ALJR with this Court;

ii) He was not informed regarding the 15-day timeline to file his ALJR with this Court, and was unaware of his legal options regarding his refugee protection claim;

iii) He should be given an opportunity to present his case in this Court to save himself;

iv) It would be a breach of the principles of natural justice and of procedural fairness to not provide the Applicant with the opportunity to be heard; and,

v) Allowing the Applicant to file his ALJR would avoid a miscarriage of justice because the Applicant is at risk of being denied justice due to no fault of his own.

[7] The Applicant’s affidavit filed on this motion does not contain any evidence with respect to his request for an extension of time to file his ALJR. It also does not set out any evidence to support the grounds he has alleged in support of his request for an extension of time to file his ALJR. The Respondent observes and has established that the Applicant has failed to perfect his application for leave by failing to serve and file his Applicant’s Record pursuant to Rule 10 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, despite the time he has had to do so. The record before the Court on this motion reflects that the Applicant has taken no steps to advance his proceeding at all beyond filing his ALJR late and filing this motion.

[8] The Applicant has neither alleged in his ALJR nor led any evidence on this motion that might suggest that he can satisfy any part of the applicable test for an extension of time to be granted. There is no allegation and no evidence to suggest his continuing intention to pursue the an application for judicial review which commenced before the relevant 15-day time limit expired, whether there is a reasonable explanation for the delay throughout the entirety of the delay period between June 27, 2025 and September 1, 2025, whether there is some merit to his judicial review application, or, whether there is any prejudice to the Respondent in granting an extension of time as sought.

[9] The Applicant’s allegation that he was not informed of the time within which he could have commenced his application for leave and for judicial review is not a tenable basis for an extension of time to commence a proceeding. Whether he had been informed of applicable statutory timelines does not constitute a reasonable explanation for his inaction. The Applicant is presumed to know the law and accordingly would be capable of commencing this proceeding in a timely manner absent very particularly circumstances or allegations and evidence to the contrary (Canada (Citizenship and Immigration) v. Tefera, 2017 FC 204, at para 28; Taylor v Canada (Minister of Citizenship and Immigration), 2007 FCA 349 at para 93; Charles v Canada (Citizenship and Immigration), 2013 FC 25 at para 26; Williams v Canada (Minister of Citizenship and Immigration), 2005 FC 697 at para 10). There is no evidence to suggest that the Applicant could not have taken the necessary steps to commence his application in a timely manner on his own.

[10] The Applicant’s allegations that he should be given an opportunity to present his case and that it would be a breach of the principles of natural justice or of procedural fairness to not provide the Applicant with an opportunity to be heard on judicial review are also untenable bases for an extension of time to commence a proceeding. The Applicant had the opportunity to commence an application for leave and for judicial of the Decision and failed to avail himself of that opportunity in a timely manner. One cannot speak of a breach of principles of natural justice or of procedural fairness in such circumstances. Nor can one suggest that there has been a miscarriage of justice when the Applicant failed to act when he could have. These allegations do not inform whether an extension of time to commence this proceeding should be granted.

[11] My preliminary assessment of whether there is a reasonable possibility that an extension of time will be granted by the leave judge based on the record before me and the allegations contained in the ALJR is that there is no reasonable possibility for the Applicant to be granted and extension of time by the leave judge.

[12] It follows in light of paragraph 29 of Jesuthashan that the Applicant has not raised a serious issue within the meaning of Tothand of RJR-MacDonald. This motion can be dismissed on this basis alone.

[13] Although it is not required given my determination above, I add that the Applicant has not demonstrated through clear and non‑speculative evidence at a convincing level of particularity that he will suffer unavoidable irreparable harm in the absence of the extraordinary remedy of a stay (Glooscap). The Applicant’s relatively bald affidavit statements that he fears returning to India do not meet the threshold required by the jurisprudence to establish irreparable harm on a stay motion.

[14] There is no requirement in the circumstances to consider the balance of convenience prong of the test. Were I to be required to consider the balance of convenience, then I would find that there is no demonstrated reason to interfere with the Minister’s duty pursuant to section 48 of the IRPA to enforce removal orders as soon as possible.

THIS COURT ORDERS that:

1. The Applicant’s motion for a stay of removal is dismissed.

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“Benoit M. Duchesne”

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Judge