Requests for deferral and stays in the Federal Court can be essential in certain circumstances to delay or prevent removal or deportation from Canada.
Request for Deferral: If a removal date has been set, individuals can request a deferral of their deportation from the Canada Border Services Agency (CBSA). To be successful, they must demonstrate compelling or exigent personal circumstances that go beyond the typical hardships associated with removal. The officer’s discretionary authority to grant a deferral is limited.
Judicial Stay at the Federal Court: If unsuccessful in obtaining a deferral or when there is a pending Federal Court proceeding, individuals can request a judicial stay to halt the execution of their removal order until the court matter is resolved. A judicial stay can only be granted when there is a specific issue in dispute before the court. This option allows for a legal challenge to the denial of a deferral request.
Motion for Stay of Removal at the Federal Court of Canada:
- You can file a Motion to Stay the removal of an individual if the Canada Border Service Agency (CBSA) has issued a direction to report, indicating the expected removal time.
- Initially, you request a deferral of removal from the CBSA. If this is denied, you can apply for Leave and Judicial Review of the refusal to the Federal Court of Canada. Then, you apply for a Motion to stay removal until the court’s decision. Alternatively, if you already have a case in the Federal Court of Canada, you may make this Motion within that existing matter.
- Factors considered by the Federal Court: The court primarily evaluates three factors:
- Seriousness of the issue in the underlying application for Leave and Judicial Review.
- Whether the individual would suffer irreparable harm if not granted the stay and removed from Canada.
- Balancing the situation of both parties to determine if granting the stay is convenient.
Enforceable Removal Order becoming unenforceable:
When a removal order becomes enforceable, it means all conditions for a stay are no longer applicable. Conversely, an unenforceable removal order is one that has been stayed for any reason.
Individuals subject to an unenforceable removal order may include:
- PRRA applicants awaiting PRRA process outcomes.
- Those granted a stay by the Federal Court.
- Foreign nationals from countries under a temporary stay of removal by the Minister.
- Individuals the CBSA cannot remove due to circumstances beyond their control, like inability to acquire a travel document. Note, merely lacking a travel document does not qualify for a work permit; the applicant must prove their inability is due to uncontrollable circumstances, like a passport application refusal or confirmation from the CBSA. If evidence is lacking, officers should confirm with the CBSA that the applicant is cooperating with removal procedures and genuinely unable to obtain the necessary travel document.
- When a removal order is issued against an individual but cannot be enforced due to various reasons, such as legal or procedural hurdles like temporary suspension of removals to a specific country, or humanitarian and compassionate factors.
FAQ’s
What is the option if CBSA has given me Direction to Report for removal?
If the Canada Border Services Agency (CBSA) instructs you to appear on a specific date and time for removal from Canada, you have the option to request a deferral of removal. This entails asking the CBSA to postpone your removal for a certain period. If the CBSA denies your deferral request, you might have the opportunity to proceed to the Federal Court of Canada and file a motion for a stay of removal. In some cases, instead of seeking deferral directly from the officer, you may opt to pursue a motion for a stay of removal through an existing application for leave and judicial review already underway at the Federal Court of Canada.
What is the key requirement for a successful Request for Deferral?
To be successful, individuals must demonstrate compelling or exigent personal circumstances that go beyond the typical hardships associated with removal.
What discretionary authority does the CBSA officer have in granting a deferral?
The CBSA officer has limited discretionary authority in granting a deferral, and the circumstances presented must be compelling.
Under what conditions can a Judicial Stay be granted by the Federal Court?
A Judicial Stay can be granted when there is a specific issue in dispute before the court, allowing for a halt to the execution of the removal order until the court matter is resolved.
What purpose does a Judicial Stay serve in the context of removal orders?
It provides individuals with an avenue for a legal challenge to the denial of a deferral request, ensuring a fair and thorough examination of their case by the Federal Court.
What is the option if CBSA has given me Direction to Report for removal?
If the Canada Border Services Agency (CBSA) instructs you to appear on a specific date and time for removal from Canada, you have the option to request a deferral of removal. This entails asking the CBSA to postpone your removal for a certain period. If the CBSA denies your deferral request, you might have the opportunity to proceed to the Federal Court of Canada and file a motion for a stay of removal. In some cases, instead of seeking deferral directly from the officer, you may opt to pursue a motion for a stay of removal through an existing application for leave and judicial review already underway at the Federal Court of Canada.
What is the key requirement for a successful Request for Deferral?
To be successful, individuals must demonstrate compelling or exigent personal circumstances that go beyond the typical hardships associated with removal.
What discretionary authority does the CBSA officer have in granting a deferral?
The CBSA officer has limited discretionary authority in granting a deferral, and the circumstances presented must be compelling.
Under what conditions can a Judicial Stay be granted by the Federal Court?
A Judicial Stay can be granted when there is a specific issue in dispute before the court, allowing for a halt to the execution of the removal order until the court matter is resolved.
What purpose does a Judicial Stay serve in the context of removal orders?
It provides individuals with an avenue for a legal challenge to the denial of a deferral request, ensuring a fair and thorough examination of their case by the Federal Court.
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