Date: 20251128

Docket: IMM-22576-25 Citation: 2025 FC 1898

Montréal, Quebec, November 28, 2025

PRESENT: Mr. Justice Gascon

BETWEEN:

SUNGKOOK PAK

Applicant

and

THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

Respondent

ORDER AND REASONS

I. Overview

[1] The Applicant, Sungkook Pak, brought a motion for an order staying the execution of his removal to South Korea, one of his countries of citizenship, scheduled to take place on October 27, 2025. He sought a stay pending a determination of his application for leave and judicial review [ALJR] of the October 17, 2025 decision of an inland enforcement officer [Officer] of the Canada Border Services Agency [CBSA] refusing his request to defer his removal [Deferral Decision].

[2] I heard the stay motion on an urgent basis on October 21, 2025. Following the hearing, and after reviewing and considering the materials filed with the Court by each party, including the affidavits and the written submissions, as well as the oral representations by counsel for both parties, I issued a brief order on October 24, 2025, indicating that I was granting Mr. Pak’s stay motion, with reasons to follow. These are those reasons.

II. The factual context

[3] Mr. Pak’s immigration history in Canada is lengthy and this overview does not pretend to be exhaustive.

[4] In September 2012, Mr. Pak entered Canada from the United States. He was accompanied by his then wife. Both had falsified passports.

[5] In October or November 2012, Mr. Pak, conjointly with his then wife, filed for refugee protection based on their fear of persecution as North Korean defectors and job and social discrimination in South Korea.

[6] In July 2014, the Refugee Protection Division dismissed Mr. Pak’s claim for refugee protection after identifying the key issues as being identity and credibility. His claim was found to be manifestly unfounded.

[7] In February and March 2015, Mr. Pak failed to appear for pre-removal interviews leading to the issuance of a Canada-wide immigration warrant.

[8] In November 2019, after evading the immigration authorities for more than four (4) years, Mr. Pak was arrested by the CBSA and detained for removal. He was subsequently released on terms and conditions.

[9] In November 2019, Mr. Pak filed an application for a pre-removal risk assessment [PRRA] [First PRRA Application] and was included in his then wife’s application for permanent residence on humanitarian and compassionate [H&C] grounds made pursuant to section 25 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].

[10] In July 2020, the Minister of Citizenship and Immigration rejected Mr. Pak’s H&C and PRRA applications. In December 2020, Mr. Pak applied for judicial review of the refusal of his First PRRA Application in file number IMM-6367-20.

[11] In May 2021, the Court granted a stay of removal to Mr. Pak pending the judicial review of the refusal of his First PRRA Application, in file number IMM-6367-20.

[12] In March 2022, after the parties consented to have the matter redetermined, the Court issued a judgment by consent granting the application for judicial review in file number IMM-6367-20 and setting aside the refusal of Mr. Pak’s First PRRA Application.

[13] Mr. Pak filed new submissions as part of the redetermination of his PRRA application [Second PRRA Application], but his Second PRRA Application was ultimately rejected in July 2022. In August 2022, Mr. Pak filed an application for judicial review of the refusal of his Second PRRA Application in file number IMM-8451-22, but the application was discontinued after the parties agreed to settle the matter.

[14] At an unknown date in 2022, Mr. Pak filed other submissions as part of a new PRRA application [Third PRRA Application]. Mr. Pak’s Third PRRA Application was again rejected in March 2023. In April 2023, Mr. Pak filed an application for judicial review of the refusal of his Third PRRA Application in file number IMM-5918-23. In May 2023, he filed a motion to stay his removal scheduled for May 20, 2023, which was granted by the Court pending the judicial review of the refusal of his Third PRRA Application (Pak v Canada (Public Safety and Emergency Preparedness), 2023 CanLII 46719 (FC)).

[15] In May 2024, Mr. Pak submitted another application for permanent residence on H&C grounds pursuant to section 25 of the IRPA [H&C Application], which remains pending to this day. His former wife was not part of this H&C Application.

[16] In March 2025, the Court dismissed Mr. Pak’s application for judicial review of his Third PRRA Application in file number IMM-5918-23 (Pak v Canada (Citizenship and Immigration), 2025 FC 411 [Pak 2025]).

[17] On June 11, 2025, Mr. Pak was issued a direction to report for removal, scheduled for July 2025. He asked the CBSA for a deferral, which was refused. He filed an application for leave and judicial review of the CBSA’s refusal in file number IMM-13892-25, for which he later filed a discontinuance after the parties settled the matter.

[18] On September 22, 2025, Mr. Pak was issued a new direction to report for removal and he filed another request for deferral of removal to allow him to stabilize psychologically and until a decision is made on his pending H&C Application. The deferral request was refused on October 17, 2025 by the Officer in the Deferral Decision.

[19] On October 15, 2025, Mr. Pak filed his ALJR of the Deferral Decision and subsequently a motion for a stay of removal, leading to the present Order and Reasons.

III. Legal framework

[20] A stay order is an extraordinary equitable relief requiring special and compelling circumstances (Universal Ostrich Farms Inc v Canada (Food Inspection Agency), 2025 FCA 164 at para 82 [Ostrich Farms]; Canada (Minister of Citizenship and Immigration) v Harkat, 2006 FCA 215 at para 10). To obtain a stay of their removal, applicants must meet the tripartite test articulated by the Supreme Court of Canada [SCC] in RJR-MacDonald Inc v Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 [RJR-MacDonald] for the issuance of interlocutory injunctions or stays, and applied to stays in immigration matters by the Federal Court of Appeal [FCA] in Toth v Canada (Minister of Employment and Immigration), 1988 CanLII 1420 (FCA), 86 NR 302 (FCA) [Toth].

[21] The RJR-MacDonald/Toth test requires applicants to demonstrate that: (i) there is a serious issue to be tried in their underlying ALJR, following a preliminary assessment of the merits of their application; (ii) irreparable harm will result if the stay is not granted and their removal is not stayed; and (iii) the balance of convenience favours the granting of the order and the staying of their removal (R v Canadian Broadcasting Corp, 2018 SCC 5 at para 12 [CBC]).

[22] As stated by the SCC in Google Inc v Equustek Solutions Inc, 2017 SCC 34 [Google], the fundamental question is whether granting the injunctive relief is “just and equitable in all of the circumstances of the case,” which will “necessarily be context-specific” (Google at para 25). I pause to observe that the SCC decision in Google has not changed the well accepted three-prong test developed in RJR-MacDonald and expanded in CBC for mandatory injunctions, nor has it superimposed an additional consideration over it. However, the Google decision reinforces the principle that, in exercising their discretion to grant a stay or an interlocutory injunction, courts need to be mindful of overall considerations of justice and equity. In other words, the RJR-MacDonald/Toth test cannot be reduced to a simple box-ticking exercise of the three components of the test.

[23] The RJR-MacDonald/Toth test is conjunctive, meaning that all three elements of the test must be satisfied for the Court to grant relief (Ostrich Farms at para 69; Air Passengers Rights v Canada (Transportation Agency), 2020 FCA 92 at para 15, leave to appeal to the SCC dismissed, no 39266 (December 23, 2020); Janssen Inc v Abbvie Corporation, 2014 FCA 112 at para 19 [Janssen]). None of the branches can be seen as an “optional extra” (Janssen at para 19), and the “failure of any of the three elements of the test is fatal” (Canada (Heritage) v 9616934 Canada Inc, 2023 FCA 141 at para 11, citing Canada (Health) v Glaxosmithkline Biologicals SA, 2020 FCA 135 at para 9 [Glaxosmithkline] and Canada (Citizenship and Immigration) v Ishaq, 2015 FCA 212 at para 15; see also Western Oilfield Equipment Rentals Ltd v M-I LLC, 2020 FCA 3 at para 7 [Western Oilfield]).

[24] That said, the three prongs of the test are not watertight compartments. They are somewhat interrelated and they should not be assessed in total isolation from one another (Ostrich Farms at para 14; The Regents of University of California v I-Med Pharma Inc, 2016 FC 606 at para 27, aff’d 2017 FCA 8; Thevarasa v Canada (Citizenship and Immigration), 2024 FC 1123 at para 15; Merck & Co Inc v Nu-Pharm Inc, 2000 CanLII 14758, 4 CPR (4th) 464 (FC) at para 13). They are instead flexible and interconnected: “[e]ach one relates to the others and each focuses the court on factors that inform the overall exercise of the court’s discretion in a particular case” (Wasylynuk v Canada (Royal Mounted Police), 2020 FC 962 at para 135). However, this does not mean that one of the three compartments can be completely empty and compensated by the other two being filled to a higher level. There still needs to be something on each of the three branches, and none of the elements of the test can be entirely left aside and rescued by the other two (Ledshumanan v Canada (Public Safety and Emergency Preparedness), 2021 FC 1463 at paras 14–15 [Ledshumanan]; Okojie v Canada (Citizenship and Immigration), 2019 FC 880 at para 32). As the FCA recently said, “while the strength in one factor may balance out weakness in another, a stay will not be issued where a prong of the test is not met” (Ostrich Farms at para 14).

[25] Moreover, the exceptional nature of a stay of removal in immigration matters is reinforced by the fact that such a stay interferes with the normal administrative process prescribed by Parliament in section 48 of the IRPA. This provision expressly states that, when enforceable, a removal order “must be enforced as soon as possible.”

[26] In sum, no matter how sympathetic a situation may be, there is no royal road to obtaining a stay of removal, and applicants must meet their burden and satisfy the requirements set out by the SCC in RJR-MacDonald, Google, and CBC and applied by the FCA and this Court in numerous decisions.

IV. Analysis

[27] In the present case, I find that, on a balance of probabilities, Mr. Pak has met the RJR-MacDonald/Toth tripartite test — by a very narrow margin — and I am satisfied that, in his particular circumstances, the facts justify the exercise of the Court’s discretion in favour of a temporary stay of his removal.

A. Serious issue

[28] The first component of the tripartite test is whether the materials on the underlying ALJR and the evidence on the record are sufficient to satisfy the Court, on a balance of probabilities, that Mr. Pak has raised a serious issue to be tried. The “serious issue” element of the RJR-MacDonald/Toth test requires the Court to do a preliminary assessment of the strength of the merits of Mr. Pak’s application underlying his stay motion, namely, his challenge of the Deferral Decision.

[29] The demonstration of a single serious issue suffices to meet this part of the test (Jamieson Laboratories Ltd v Reckitt Benckiser LLC, 2015 FCA 104 at para 26).

(1) The applicable test

[30] Since, in this matter, the underlying ALJR concerns the refusal to defer by a CBSA enforcement officer, the Court must consider that granting a stay in this case is one of the situations addressed in Wang v Canada (Minister of Citizenship and Immigration), 2001 FCT 148 at para 11 [Wang] and its progeny, where a favourable decision on the interlocutory application effectively grants the relief sought in the underlying judicial review application and “in effect amount[s] to a final determination of the action” (RJR-MacDonald at p 338). In these circumstances, the “serious issue” element of the RJR-MacDonald/Toth test does not merely require the Court to be satisfied that the underlying application is “neither vexatious nor frivolous” (RJR-MacDonald at pp 338–339). Instead, an elevated threshold for the establishment of a serious issue applies, pursuant to which Mr. Pak must show a “likelihood of success” in his underlying ALJR of the Deferral Decision (Fox v Canada (Citizenship and Immigration), 2009 FCA 346 at para 21; Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 at para 66 [Baron]).

[31] I pause to point out that the scope of a CBSA enforcement officer’s discretion to defer the removal of a person under subsection 48(2) of the IRPA is limited, as an enforcement officer is required to enforce the removal order as soon as possible (Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at para 54 [Lewis]). The enforcement officer’s discretion is restricted to determining when, and not if, the removal will be executed. Such discretion should be exercised only for those cases where there is clear evidence of a “risk of death, extreme sanction or inhumane treatment,” or where there are temporary, short-term exigent circumstances, such as facilitating appropriate travel arrangements or allowing a child to finish a critical school year (Revell v Canada (Citizenship and Immigration), 2019 FCA 262 at para 50, leave to appeal to the SCC dismissed, no 38891 (April 2, 2020); Lewis at paras 55, 82–83; Atawnah v Canada (Public Safety and Emergency Preparedness), 2016 FCA 144 at paras 13–15, leave to appeal to the SCC dismissed, no 37122 (December 1, 2016) [Atawnah]; Canada (Public Safety and Emergency Preparedness) v Shpati, 2011 FCA 286 at para 43 [Shpati]; Baron at paras 49–51; Wang at para 48).

[32] Furthermore, the standard of review applicable to a decision of a CBSA enforcement officer not to defer removal is reasonableness (Baron at para 67). This is confirmed by the SCC’s landmark decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], where the court established a presumption that reasonableness is the applicable standard in judicial reviews of the merits of administrative decisions (Pepa v Canada (Citizenship and Immigration), 2025 SCC 21 at para 35 [Pepa]; Mason v Canada (Citizenship and Immigration), 2023 SCC 21 at para 7 [Mason]). To be reasonable, a decision must be “based on an internally coherent and rational chain of analysis” and be “justified in relation to the facts and law that constrain the decision maker” (Pepa at para 46; Mason at paras 8, 64, citing Vavilov at paras 85, 101). The reviewing court asks “whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility” (Vavilov at para 99).

[33] However, the reviewing court must refrain from “reweighing and reassessing the evidence considered” by the decision maker (Vavilov at para 125). Rather, the court must adopt an attitude of restraint, intervening only “where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process” (Vavilov at para 13). It is important to remember that the standard of reasonableness finds its starting point in the principle of judicial restraint and a respect for the distinct role of administrative decision makers (Mason at para 57; Vavilov at paras 13, 75). For the reviewing court to set aside an administrative decision, it must be satisfied that there are sufficiently serious shortcomings to render the decision unreasonable (Vavilov at para 100).

[34] The combination of the elevated threshold of a “likelihood of success” and the deferential standard of reasonableness means that Mr. Pak must put forward “quite a strong case” to succeed on the first element of the RJR-MacDonald/Toth test (Baron at para 67).

(2) The Officer’s Deferral Decision

[35] I am generally satisfied that, in the Deferral Decision, the Officer reasonably reviewed and considered the arguments and evidence advanced by Mr. Pak in his request to defer but was forced to conclude that they were insufficient to grant a deferral of removal. The Officer provided thorough reasons for his conclusion that the exercise of his limited discretion to defer removal was not warranted.

[36] More specifically, the Officer extensively analyzed the two main grounds raised by Mr. Pak in his request to defer, namely, his mental health evidence, including the most recent psychiatric report from Dr. Hae Kim, and his pending H&C Application.

[37] On Mr. Pak’s mental health issues, it cannot be said that the Officer failed to grapple with the evidence or that it was unreasonable for him to conclude that it was beyond his mandate to grant a deferral based on Mr. Pak’s mental health problems, as these were evidently long-standing issues as opposed to short-term impediments. Furthermore, I agree with the Respondent, the Minister of Public Safety and Emergency Preparedness [Minister], that Mr. Pak did not provide sufficient evidence to establish that specific treatments for his condition were not available in South Korea or that he could not access mental health treatments, including medication and counselling, in that country. It is firmly established that a deferral of removal is intended to address short-term impediments to removal, not long-term medical needs (see, for example, Adeleye v Canada (Public Safety and Emergency Preparedness), 2019 CanLII 22862 [Adeleye]).

[38] It was also reasonable for the Officer to conclude that Mr. Pak’s alleged risk related to his concerns about mental health treatments in South Korea had previously been assessed and previously rejected by several PRRA officers and by this Court, notably in the context of his Third PRRA Application and in Pak 2025.

[39] Regarding the new mental health evidence provided by Dr. Kim and not previously assessed, I observe that Mr. Pak’s mental health issues and his suicidal ideation are closely tied to and correlated with the prospect and imminence of his removal to South Korea. Indeed, Mr. Pak’s evidence highlights how his mental health problems spiralled when his Third PRRA Application was rejected in March 2023, when his application for judicial review was dismissed by this Court in March 2025, and whenever he received Directions to Report for his multiple scheduled removals from the CBSA.

[40] I also observe that according to the evidence, Mr. Pak has been partly responsible for his persisting mental health condition as he has shown a chronic inability to follow his prescribed treatments while in Canada due to alleged financial difficulties or to his own omission to take his medication.

[41] Turning to the second ground raised by Mr. Pak against the Deferral Decision — his H&C Application, I find that Mr. Pak’s submissions have no merit. The Officer carefully addressed his request that a deferral be granted because of his pending H&C Application. The Officer correctly noted that such an application does not entitle a person to remain in Canada and does not give rise to a statutory stay of removal or to the level of a serious issue such as to justify a stay of removal (Baron at paras 50–51, 57). Mr. Pak has not advanced any meaningful argument to challenge this conclusion.

[42] Pending H&C applications are no grounds to defer removal when a decision on such applications is not imminent and the application was submitted long after an applicant’s multiple removal dates. This is the situation here. Moreover, a request for deferral does not oblige an enforcement officer to undertake a “mini-H&C” assessment or make a PRRA decision (Baron at para 51; Shpati at para 45; Newman v Canada (Public Safety and Emergency Preparedness), 2016 FC 888 at para 19 [Newman]). In addition, I agree with the Minister that no “special considerations” are present in Mr. Pak’s H&C Application (Newman at paras 31–34).

[43] In the Deferral Decision, the Officer therefore generally addressed the two issues raised by Mr. Pak in a reasonable and comprehensive manner, and in accordance with the standard set in Vavilov. The Officer provided a rational and logical reasoning, and the resulting Deferral Decision is generally justified in light of the lack of evidence submitted and the legal constraints imposed by the IRPA.

[44] Having said that, I agree with Mr. Pak that the Officer’s treatment of his allegations and evidence of new risk related to his deteriorating mental health condition raises concerns. I pause to underline that a CBSA enforcement officer is not required to defer removal whenever a new risk, not assessed by previous immigration decision makers, has arisen. In Savunthararasa v Canada (Public Safety and Emergency Preparedness), 2016 FCA 51 [Savunthararasa], the FCA specifically stated that “an enforcement officer may defer removal where an applicant establishes a risk of death, extreme sanction or inhumane treatment that has arisen since the last assessment of risk” [emphasis added] (Savunthararasa at para 7). The FCA in Atawnah also established that “an enforcement officer assesses the sufficiency of the evidence of risk, and if satisfied the evidence is sufficient, defers removal and refers the risk assessment to another decision maker” [emphasis added] (Atawnah at para 27). In other words, it is only when the evidence of risk upon return to the country of removal is sufficient that deferral officers must defer (Atawnah at para 22).

[45] A CBSA enforcement officer does not have to take the allegations of a new risk at face value and defer removal as soon as a new risk not assessed by previous immigration decision makers is alleged to be arising. Where deferral is sought based on a new risk of harm, the obligation to defer is only engaged when the evidence of the new risk of harm is found to be sufficient. In the case of Mr. Pak, the Officer determined that this was not the case.

[46] I agree with Mr. Pak that the Officer’s assessment of his new mental health evidence was somewhat limited. Mr. Pak’s argument that a deferral would allow Dr. Kim to recover and assess his critical situation, or would provide him with additional time to find an alternative psychiatric support and ensure a smooth transition of medical care, was not very substantiated. An argument could thus be made that the Officer’s failure to properly consider the evidence relating to his new risk of psychological deterioration and suicide upon removal, particularly in light of the sudden non-availability of his psychiatrist to offer acute care, was unreasonable.

[47] On that narrow point, Mr. Pak has persuaded me that he meets — albeit very barely — the elevated threshold set out in Baron and Wang and that he has some likelihood of success in his underlying ALJR of the Deferral Decision. I must add that, in my view, this is a very low probability of success at best. But I accept that it is enough to meet the first prong of the RJR-MacDonald/Toth test.

B. Irreparable harm

[48] On the issue of irreparable harm, I am also satisfied that Mr. Pak has provided the required evidence to establish a real probability that he will suffer irreparable harm between now and the time his ALJR is finally disposed of, in the event that he is returned to South Korea.

(1) The applicable test

[49] On the second element of the RJR-MacDonald/Toth test, irreparable harm, applicants must demonstrate, through clear, convincing, and non-speculative evidence, that there is a real probability that they (or their family) will suffer irreparable harm between now and the time their ALJR is finally disposed of, in the event that they are removed from Canada, such that the extraordinary remedy of a stay of removal is warranted (Glaxosmithkline at paras 15–16; Atwal v Canada (Minister of Citizenship and Immigration), 2004 FCA 427 at para 14 [Atwal]). As in any stay application, the burden lies on the moving party to provide such evidence (Ostrich Farms at para 11; Canada (Attorney General) v Bertrand, 2021 FCA 103 at para 10).

[50] As is the case for the “serious issue” element, the existence of one single ground meeting the requirements of irreparable harm is sufficient to meet the second prong of the RJR-MacDonald/Toth test (Toth at p 5).

[51] 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” (RJR-MacDonald at p 341).

[52] Irreparable harm is a strict test. In the context of stays of removal, it implies a serious likelihood of jeopardy to an applicant’s (or their family’s) life, security or safety, and it requires evidence going beyond the inherent consequences of deportation (Fortius Foundation v Canada (National Revenue), 2022 FCA 176 at para 30, leave to appeal to the SCC dismissed, no 40515 (May 11, 2023); Palka v Canada (Public Safety and Emergency Preparedness), 2008 FCA 165 at para 12 [Palka]; Ghanaseharan v Canada (Minister of Citizenship and Immigration), 2004 FCA 261 at para 13 [Ghanaseharan]; Melo v Canada (Minister of Citizenship and Immigration), 2000 CanLII 15140 (FC), 188 FTR 39 at para 21).

[53] The FCA has frequently insisted on the attributes and quality of the evidence needed to establish irreparable harm in the context of stays or injunctive reliefs (Canada (Attorney General) v Robinson, 2021 FCA 39 at para 24; Glaxosmithkline at paras 15–16; Western Oilfield at para 11; Janssen at para 24).

[54] Irreparable harm must flow from clear and non-speculative evidence (Astrazeneca Canada Inc v Apotex Inc, 2011 FC 505 at para 56, aff’d 2011 FCA 211; Aventis Pharma SA v Novopharm Ltd, 2005 FC 815 at paras 59–61, aff’d 2005 FCA 390). Merely claiming that irreparable harm is possible is not enough: it is not sufficient to demonstrate that irreparable harm is “likely” to be suffered, but rather that the moving party will suffer irreparable harm if the injunction or the stay is denied (Ostrich Farms at para 46; Landry v Abenakis of Wolinak First Nation, 2021 FCA 197 at para 99; Arctic Cat, Inc v Bombardier Recreational Products Inc, 2020 FCA 116 at para 19; United States Steel Corporation v Canada (Attorney General), 2010 FCA 200 at para 7; Centre Ice Ltd v National Hockey League, 1994 CanLII 19510 (FCA), 53 CPR (3d) 34 at 52).

[55] A real probability does not mean a certainty, but the evidence must be more than a series of possibilities, speculations, or hypothetical or general and unsupported assertions, all of which have no probative value (Bell Canada v Beanfield Technologies Inc, 2024 FCA 28 at para 24; Gateway City Church v Canada (National Revenue), 2013 FCA 126 at paras 15–16 [Gateway City Church]; Glooscap Heritage Society v Canada (National Revenue), 2012 FCA 255 at para 31 [Glooscap]; Atwal at para 14). In reality, “the moving party must demonstrate in a detailed and concrete way that it will suffer real, definite, unavoidable harm – not hypothetical and speculative harm – that cannot be repaired later” (Janssen at para 24; see also Ostrich Farms at para 46 citing Canada (Attorney General) v Oshkosh Defense Canada Inc, 2018 FCA 102 at para 25).

[56] It is equally insufficient “for those seeking a stay […] to enumerate problems, call them serious, and then, when describing the harm that might result, to use broad, expressive terms that essentially just assert – not demonstrate to the Court’s satisfaction – that the harm is irreparable” (Stoney First Nation v Shotclose, 2011 FCA 232 at para 48). Quite the contrary, there must “be evidence at a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result unless a stay is granted” (Gateway City Church at para 16, citing Glooscap at para 31; see also Janssen at para 24).

[57] Furthermore, applicants must not be the architects of their own misfortunes. As stated by the FCA, “it would be strange if a litigant complaining of harm it caused itself, harm it could have avoided or repaired, or harm it still can avoid or repair could get such serious relief” (Janssen at para 24; see also Western Oilfield at paras 11–12).

[58] While these FCA precedents were often issued in contexts other than immigration matters, Mr. Pak has provided no grounds or authorities to support a proposition that these oft-repeated requirements for establishing irreparable harm ought not to apply to stays of removal in the immigration space.

(2) Application to this case

[59] Here, Mr. Pak’s claims that he will suffer irreparable harm if removed to South Korea revolve around his mental health condition and, more importantly, his recent suicidal ideations.

[60] To some extent, it is true that Mr. Pak’s alleged risk upon his return to South Korea stems from risk allegations which were unsuccessfully made before various Canadian immigration decision makers, including various PRRA officers. These risks were thoroughly and adequately assessed, notably in the decision refusing his Third PRRA Application, and they cannot rise from their ashes and form the basis supporting a claim of irreparable harm now (Shpati at paras 41–42; Ogieriakhi v Canada (Citizenship and Immigration), 2023 FC 256 at para 11; Ledshumanan at paras 62–64; Touré c Canada (Citoyenneté et Immigration), 2020 CF 6 at para 8).

[61] While the previous determinations made by the PRRA officers are certainly not binding on me and I must make my own determination concerning the risks faced by Mr. Pak, he has not presented clear, compelling, and non-speculative evidence to persuade me that I should revisit those previous conclusions made in the context of his three PRRA applications.

[62] It is not disputed that mental health issues are not, in and of themselves, an impediment to removal. This Court has often recognized that concerns about inadequate health care in the country of origin do not constitute irreparable harm (see, for example, Bastien v Canada (Citizenship and Immigration), 2021 FC 926 at para 25 and Adeleye). Justice Mactavish (as she then was) also wrote in Adeleye that a “deferral of removal is intended to address short-term impediments to removal, and not life-long medical needs.” The Court has often refused to grant a stay for medical conditions that are long-term or chronic in nature (see, for example, Muremarugamba c Canada (Sécurité publique et Protection civile), 2022 CF 1271 at para 9; Quezada Salas v Canada (Citizenship and Immigration), 2022 FC 1801 at para 35; Kalaba v Canada (Public Safety and Emergency Preparedness), 2020 FC 959 at para 38).

[63] Moreover, recurring psychological issues, including suicidal ideations, do not generally amount to irreparable harm when they are tied to an impeding removal: “Irreparable harm is not established by anxiety, even where accompanied by suicidal ideation, when these symptoms are clearly linked to a pending removal” (Enodumwenben v Canada (Public Safety and Emergency Preparedness), 2024 FC 1686; Savage v Canada (Public Safety and Emergency Preparedness), 2025 FC 1582 at para 51). I cannot help but observe that, in the case of Mr. Pak, there is a troubling correlation between the acuteness of his mental health issues and suicidal ideations and the threat of his imminent removal.

[64] Furthermore, I agree with the Minister that Mr. Pak’s allegations of adverse and inadequate treatment of mental health in South Korea do not constitute irreparable harm for three primary reasons. First, Mr. Pak’s allegations of adverse and inadequate treatment of mental health in South Korea have already been considered, and were reasonably rejected, in the various PRRA decisions, and in the Court’s decision in Pak 2025. Second, the evidence shows that Mr. Pak has previously obtained mental health treatment in South Korea, including medication and psychiatric counselling. Third, as stated above, it is well established that concerns about inadequate health care in a foreign country do not constitute irreparable harm. Indeed, the alleged inability of the South Korean health authorities to adequately treat Mr. Pak is not even a valid risk to life that can form the basis of a refugee claim, in light of subparagraph 97(1)(b)(iv) of the IRPA.

[65] It is also well established in the case law that denying a stay of removal while an H&C application is pending does not, unless a decision on the application is imminent or exceptional circumstances exist, amount to irreparable harm as the H&C application will continue to be processed and, if positive, the applicant may be allowed to return to Canada (Baron at paras 50-51; Palka at paras 13-15; Toney v Canada (Public Safety and Emergency Preparedness), 2019 FC 1018 at para 50; Urbina Ortiz v Canada (Public Safety and Emergency Preparedness), 2012 FC 18 at paras 43-46). As the FCA stated in Baron, “H&C applications are not intended to obstruct a valid removal order” (Baron at paras 87-88). In this case, there is no evidence indicating that the decision on Mr. Pak’s H&C Application is imminent.

[66] That being said, I cannot ignore the evidence showing a very high risk of suicide by Mr. Pak. This is not a risk that stems from the risk allegations which were thoroughly assessed and rejected by the PRRA officers or the Court in previous proceedings. Here, Mr. Pak has provided clear and convincing evidence regarding a new risk of harm flowing from his deteriorating mental health condition, supported by medical evidence from Dr. Kim. This shows an escalation of risk for Mr. Pak.

[67] I am mindful of the fact that, in several respects, Dr. Kim goes way beyond the scope of proper medical evidence in advocating for Mr. Pak’s successful immigration to Canada and in providing his unsubstantiated opinion on health care services in South Korea. Medical opinions become wholly inappropriate when they turn into legal pleadings (Futi c Ministre de la Sécurité publique et de la protection civile, IMM-23693-25 (November 1, 2025) at para 48). However, Dr. Kim’s statement on the real probability that Mr. Pak will commit suicide is clear and convincing, and cannot be qualified as speculative in light of Mr. Pak’s documented history of mental heath issues and Dr. Kim’s medical assessment.

[68] I am therefore satisfied that Mr. Pak’s evidence on his high risk of suicide should he be returned to South Korea in the current circumstances amounts to more than speculations and general assertions, and demonstrates that he will be personally exposed to a risk to his life, security or safety if he is removed from Canada. This is sufficient to meet the second prong of the RJR-MacDonald/Toth test.

C. Balance of convenience

[69] I am finally satisfied that Mr. Pak has provided the required evidence to establish that the balance of convenience slightly tilts in his favour in the circumstances.

[70] At this last stage of the RJR-McDonald/Toth test, the prejudice to Mr. Pak must be balanced against the prejudice to the Minister who is prevented from enforcing the law. It has sometimes been said that “[w]here the Court is satisfied that a serious issue and irreparable harm have been established, the balance of convenience will flow with the applicant” (Mauricette v Canada (Public Safety and Emergency Preparedness), 2008 FC 420 at para 48). Nevertheless, balance of convenience is not a purely automatic result. The final component of the test requires the Court to determine “which of the two parties will suffer the greatest harm” from the granting or refusal of the stay (Metropolitan Stores (MTS) Ltd v Manitoba Food & Commercial Workers, Local 832, [1987] 1 S.C.R. 110 at para 36; Ostrich Farms at para 50).

[71] I acknowledge that the public interest favours having removal orders promptly enforced as scheduled and in the Minister exercising his statutory duty to apply the IRPA (Ghanaseharan at paras 21–22; Atwal at para 19). As the FCA reiterated in Ostrich Farms, “[w]here a stay restrains the actions of an administrative agency charged with the duty of promoting or protecting the public interest and where its actions were undertaken pursuant to that responsibility, irreparable harm to the public interest is nearly always established” (Ostrich Farms at para 50, citing RJR-MacDonald at para 76). Staying a removal is an extraordinary equitable relief and section 48 of the IRPA requires the enforcement of removal orders as soon as possible. It 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” (Ghanaseharan at para 22).

[72] I am also mindful of the fact that Mr. Pak has had the opportunity to use most if not all avenues offered by the Canadian refugee protection legal framework, that he has benefited from multiple risk assessments, and that his claims have been rejected by all immigration officers and authorities involved. Mr. Pak has also shown repeated disrespect for immigration laws. He has a history of evading the Canadian immigration authorities for several years (forcing them to deploy important resources in locating him) and taking strategic steps, with little or no regard for the immigration laws of Canada, in order to remain in Canada and secure the result that he desires.

[73] However, in the circumstances of this case, Mr. Pak’s inconvenience is extremely severe as there is a serious risk he would attempt to end his life if removed. While the principal inconvenience the Minister faces is yet another delay of Mr. Pak’s removal, Mr. Pak faces serious risks to his health and safety. Especially where life is at risk, the balance of convenience will usually favour an applicant because “it is most inconvenient to be dead” (Singh v Canada (Public Safety and Emergency Preparedness), 2015 FC 1235 at para 7; see also Assfour v Canada (Public Safety and Emergency Preparedness), 2023 FC 650 at para 30 [Assfour]).

[74] I am therefore satisfied that the irreparable harm to be suffered by Mr. Pak as a result of his removal from Canada is sufficient to outweigh the public interest in timely executing the removal order against him. While I am not condoning Mr. Pak’s conduct, protection of life must prevail when the risk of harm to life is established by clear, convincing, and non-speculative evidence, as is the case here (Assfour at para 31).

[75] In the end, looking at the RJR-MacDonald/Toth test holistically, this is a situation where the strength in one factor (i.e., irreparable harm) balances out the weakness in another (i.e., serious issue).

V. Additional remarks

[76] I make the following additional remarks for the benefit of Mr. Pak.

[77] The stay hereby granted to Mr. Pak is only temporary. Unless Mr. Pak can obtain, through his H&C Application or otherwise, a status allowing him to lawfully remain in Canada, it is just a matter of time before he will be back before the CBSA, will receive a new direction to report, and will see the CBSA enforcing his removal to South Korea in accordance with the IRPA.

[78] Mental health issues, even serious ones leading to suicidal ideations, cannot become a “carte blanche,” or a free pass, to remain in Canada indefinitely without legal status. With the present order, Mr. Pak will now have benefited from three stays or deferrals of removal due, at least in part, to his recurring mental health issues. However, his long-term mental health condition cannot be a ground for an indefinite stay of his removal.

[79] At some point, if Mr. Pak does not obtain a valid status in Canada, time will come where Mr. Pak will have to be removed from this country. He needs to be prepared for it and to take actions accordingly. The Court hereby reminds Mr. Pak that he shall be ready to present evidence on the steps he has taken to obtain the required assistance for his medical condition in South Korea, in the event of his removal. Saying that he has not made the proper arrangements to be treated in South Korea will no longer be an acceptable justification to defer or stay his removal. Moreover, I observe that Mr. Pak has so far been unable to present convincing evidence supporting an inability to obtain the required treatments for his condition in South Korea.

[80] In the same vein, should the evidence demonstrate that Mr. Pak fails to properly pursue his medical treatments in Canada during the temporary stay of his removal or does not take the appropriate steps to improve or stabilize his mental health condition in preparation for his possible removal, this may become a situation where Mr. Pak, in a further request for a deferral or stay of removal, in fact raises harm he caused himself and harm that he could have avoided or repaired. Such harm may be insufficient for the Court to grant a further relief (Janssen at para 24; Western Oilfield at paras 11–12).

[81] Mr. Pak must therefore immediately start to put in place the necessary arrangements to be able to take care of his mental health condition in South Korea should he be once again subject to the enforcement of a removal order by the Canadian immigration authorities.

[82] Finally, I should remind Mr. Pak that strict compliance with the legislative scheme set out in the IRPA is not optional.

VI. Conclusion

[83] For the above reasons, I conclude that the conditions of the RJR-MacDonald/Toth test for the issuance of a stay are met, and there are exceptional circumstances justifying the intervention of the Court and the exercise of my discretion to grant the extraordinary relief sought by Mr. Pak.

[84] In the specific context of this case and considering all the circumstances, it is just and equitable to grant a temporary stay of removal to Mr. Pak.

[85]  

ORDER in IMM-22576-25

THIS COURT ORDERS that:

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

2. The Applicant shall not be removed from Canada until his application for leave and judicial review in this matter has been disposed of by the Court.

3. No costs are awarded.

Blank	“Denis Gascon”
Blank	Judge

 

 

 

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	IMM-22576-25
STYLE OF CAUSE:	PAK v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
PLACE OF HEARING:	TORONTO, ONTARIO
DATE OF HEARING:	OCTOBER 21, 2025
JUDGMENT AND REASONS:	GASCON J.
DATED:	NOVEMBER 28, 2025

APPEARANCES:

Naseem Mithoowani	For The Applicant
Kevin Spykerman	For The Respondent

SOLICITORS OF RECORD:

Mithoowani Waldman Immigration Law Group Toronto, Ontario	For The Applicant
Attorney General of Canada Toronto, Ontario	For The Respondent