I. Nature of the matter
[1] This is an application for judicial review of the decision of a Canada Border Services Agency [CBSA] Officer’s refusal to defer the removal of the three Applicants dated October 25, 2024 [Decision] made pursuant to s. 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. Removal was scheduled for October 31, 2024, but a stay was issued by Justice Norris on October 30, 2024. The underlying application for judicial review sought an order remanding the matter to a different CBSA Officer to redetermine the request to defer.
[2] The basis on which the deferral was originally sought was an outstanding application for permanent residence on humanitarian and compassionate [H&C] grounds and a wish to file a further Pre-Removal Risk Assessment [PRRA]. The permanent residence application was dismissed and is the subject of an ongoing application for judicial review in this Court, namely under Court File No. IMM-14280-25. The Applicants have been able to apply for a PRRA since the 12-month bar expired in 2021. They are free to apply now and were in 2024. Not surprisingly, they no longer advance this issue.
[3] At the start of hearing, I canvassed counsel on the issue of mootness per Borowski v Canada (AG), [1989] 1 S.C.R. 342 [Borowski], which was properly raised by the Respondent. Having heard submissions, I ruled at the hearing the case is moot. I see no point in asking, as the Application for Leave and for Judicial Review does, that a different CBSA officer redetermine the issuance of a deferral of a removal scheduled to take place over a year ago on basis which have evaporated. This is to convert a determination of legal rights into some form of private reference. That is an improper purpose of judicial review. In my view, to do so would also be a waste of resources and would serve no point, particularly since the underlying reasons for the request in the first place, in fact and law no longer exists. Also, the facts may have shifted since then.
[4] However, I will exercise my discretion as Borowski permits, as counsel for the Applicants requests, and consider the error of law committed by the Officer in applying the tests for stays of removal used by this Court in immigration matters to the task of deferral officers acting under IRPA and its regulations. They are not the same.
[5] This raises a matter of reasonableness.
[6] With regard to reasonableness, in Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67 [Canada Post], issued contemporaneously with the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 [Vavilov], the majority per Justice Rowe explains what is required for a reasonable decision, and what is required of a court reviewing on the reasonableness standard:
[31] A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov, at para. 85). Accordingly, when conducting reasonableness review “[a] reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at [the] conclusion” (Vavilov, at para. 84, quoting Dunsmuir, at para. 48). The reasons should be read holistically and contextually in order to understand “the basis on which a decision was made” (Vavilov, at para. 97, citing Newfoundland Nurses).
[32] A reviewing court should consider whether the decision as a whole is reasonable: “what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review” (Vavilov, at para. 90). The reviewing court must ask “whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at para. 99, citing Dunsmuir, at paras. 47 and 74, and Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 13).
[33] Under reasonableness review, “[t]he burden is on the party challenging the decision to show that it is unreasonable” (Vavilov, at para. 100). The challenging party must satisfy the court “that any shortcomings or flaws relied on ... are sufficiently central or significant to render the decision unreasonable” (Vavilov, at para. 100).
[Emphasis added]
[7] In the deferral decision, the Officer stated temporary deferrals were not available to an applicant unless they were in “extreme circumstances.”
This is not the correct constraining test for deferral officers to use. I was pointed to no jurisprudence in support of the use of this test at the hearing, nor was I given any other instances in which that language is used. If there are such, as counsel for the Applicants stated, then they contain an error in their application of the constraining law that deferral officers are obliged to apply: Vavilov at paragraphs 85, 90; Canada Post at paragraphs 31-32.
[8] I am indebted to Justice Norris for his reasoning on this point, which he determined on the motion for stay, cited in Abdelsalam v Canada (Public Safety and Emergency Preparedness), 2024 CanLII 105156 (FC). I respectfully rely on his reasoning and conclusions as follows from his October 30, 2024 Order, and find the decision unreasonable because the Officer misunderstood their discretion to defer removal under s. 48(2) of IRPA to be limited to “extreme circumstances”
and because the Officer erroneously relied on Federal Court jurisprudence concerning interlocutory stays, notably jurisprudence that concerns a different legal test than the officer is to apply. As noted, that constituted a departure from constraining law which is not permitted by Vavilov and Canada Post.
[9] While the dismissal of this Application ends the stay issued by Justice Norris and renders the Applicants subject to removal once again, that of course may not take place without the Applicants being convoked for a departure interview with CBSA and then possibly a further departure notice in respect of which they will be able to seek a deferral, and possibly judicial review in the normal way and or otherwise as counsel may advise.
[10] Therefore, this application for judicial review is dismissed.
II. Certified Question
[11] Neither party proposed a certified question, and I agree none arises.
III. Costs
[12] Neither party requests their costs, and none will be ordered.
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