Docket: IMM-10406-25
Citation: 2025 FC 1826
Ottawa, Ontario, November 14, 2025
PRESENT: Mr. Justice Norris
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BETWEEN: |
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SHIRON JESUTHASHAN |
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Applicant |
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and |
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
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Respondent |
ORDER AND REASONS
I. OVERVIEW
[1] In October 2023, the applicant, a citizen of Sri Lanka, sought refugee protection in Canada on the basis of his fear of persecution as a perceived supporter of the Liberation Tigers of Tamil Eelam (LTTE). On October 8, 2024, the Refugee Protection Division (RPD) of the Immigration and Refugee Board of Canada (IRB) rejected the claim on credibility grounds. The applicant appealed the RPD’s decision to the Refugee Appeal Division (RAD) of the IRB. In a decision dated January 30, 2025, the RAD dismissed the appeal. The RAD agreed with the RPD that the applicant was not a credible witness. The RAD therefore confirmed the RPD’s determination that the applicant is neither a Convention refugee nor a person in need of protection.
[2] The applicant has applied for leave and for judicial review of the RAD’s decision. The application has been perfected and is awaiting disposition.
[3] The Canada Border Services Agency (CBSA) has directed the applicant to report for removal from Canada on November 22, 2025. The applicant now seeks a stay of the order for his removal pending the final determination of the application for leave and for judicial review.
[4] A copy of the RAD’s decision was sent to the applicant’s appeal counsel on February 3, 2025. The applicant states that he did not learn about the decision until February 13, 2025. He filed his application for leave and for judicial review of the decision on April 28, 2025, well after the time provided for in paragraph 72(2)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA) had elapsed.
[5] If he had commenced the application for leave and for judicial review within time, under subsection 231(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (IRPR), the applicant would have been entitled to a statutory stay of his removal while the application and any appeal thereof was pending. However, the statutory stay does not apply if an applicant requires an extension of time to file an application for leave and for judicial review: see IRPR, subsection 231(4); see also Singh v Canada (Public Safety and Emergency Preparedness), 2023 FC 523 at para 22 and the cases cited therein. As a result of the late filing of the application, the applicant must now overcome two hurdles. One is that he requires an extension of time to file the application under paragraph 72(2)(c) of the IRPA. The other is that if (as has now happened) the CBSA takes steps to enforce the order for his removal and the applicant does not wish to leave Canada, he must establish that he is entitled to a stay of the removal order under section 18.2 of the Federal Courts Act, RSC 1985, c F-7 (FCA). This will be determined under the well-known three-part test, described below.
[6] While the test for an extension of time and the test for a stay of a removal order are distinct tests that apply at different stages of the judicial review process, in my view, they overlap in an important respect: if, in seeking a stay of a removal order, an applicant who requires an extension of time to commence the underlying application is unable to establish that there is at least a reasonable possibility that an extension will be granted, they will also be unable to meet the first part of the three-part test – i.e. that the underlying application raises a serious issue concerning the decision under review.
[7] In the present case, as I will explain, the applicant has not established that there is even a possibility that his request for an extension of time will be granted. As a result, his motion for a stay of his removal must be dismissed because it does not raise a serious issue.
II. BACKGROUND
[8] Paragraph 72(2)(b) of the IRPA provides that, in the case of a matter arising within Canada (which 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. As noted above, the RAD provided a copy of the decision under review to the applicant’s appeal counsel on February 3, 2025. The applicant states that his counsel did not inform him of the result of the appeal until February 13, 2025. Whether the relevant date is February 3, 2025, or February 13, 2025, there is no issue that the applicant commenced his application for leave and for judicial review out of time. As a result, he requires an extension of time to file and serve the application.
[9] 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.”
[10] As required, the applicant’s application for leave and for judicial review states that he is applying for an extension of time. The application also states that the applicant’s RAD counsel notified him of the RAD’s decision by email on February 13, 2025. The special reasons for the request for an extension of time are then set out as follows:
1. The Applicant did not know that he had to file his Notice within 15 days;
2. The Applicant always had the intent to judicially review the decision;
3. The Applicant has an arguable case and a reasonable chance of success;
4. The Respondent would not suffer any prejudice if the extension of time to file this application is granted.
[11] The applicant did not file a personal affidavit in support of the application for leave and for judicial review. Instead, the application is supported by an affidavit from a lawyer with his counsel’s firm. This affidavit simply attaches as exhibits the applicant’s appeal record before the RAD and a copy of the index for the National Documentation Package for Sri Lanka that was available to the RAD when it made its decision. As a result, there is no evidence to support three key assertions of fact underlying the request for an extension of time: that the applicant received the RAD’s decision on February 13, 2025; that he did not know he had to file his notice within 15 days; and that he always intended to judicially review the decision.
[12] The memorandum of argument in support of the application for leave, which was filed on May 15, 2025, does not address the request for an extension of time.
[13] The respondent filed its memorandum of argument on June 16, 2025. The respondent opposes the application for leave on its merits. As a preliminary matter, the respondent also opposes the request for an extension of time.
[14] The applicant filed reply submissions on June 25, 2025. The reply does not address the request for an extension of time.
[15] On October 31, 2025, the applicant was directed to report for removal from Canada on November 22, 2025.
[16] On November 6, 2025, the applicant filed a motion seeking to stay the order for his removal pending the final determination of his application for leave and for judicial review of the RAD’s decision.
[17] The motion for a stay is supported by an affidavit sworn by an articling student with the applicant’s counsel’s firm. Unlike the affidavit in support of the application for leave and for judicial review, this affidavit does address the late filing of the application. However, it simply repeats the statements that the applicant’s counsel before the RAD notified him of the RAD’s decision by email on February 13, 2025, and that the applicant did not understand that he was required to file a notice of application for leave and for judicial review within 15 days of being notified of the decision. Contrary to the requirements of Rule 81 of the Federal Courts Rules, SOR/98-106, the deponent neither states that he believes these things to be the case nor does he provide the grounds for those beliefs.
III. ANALYSIS
[18] To be entitled to a stay of the order for his removal pending the final determination of his application for leave and for judicial review of the RAD’s decision, the applicant must demonstrate three things: (1) that the underlying application for judicial review raises a “serious question to be tried;”
(2) that the applicant will suffer irreparable harm if the stay is refused; and (3) that the balance of convenience (i.e. the assessment of which party would suffer greater harm from the granting or refusal of a stay pending a decision on the merits of the judicial review applications) favours granting a stay: see Toth v Canada (Employment and Immigration) (1988), 86 NR 302, 6 Imm LR (2d) 123 (FCA); R v Canadian Broadcasting Corp, 2018 SCC 5, [2018] 1 S.C.R. 196 at para 12; Manitoba (Attorney General) v Metropolitan Stores Ltd, [1987] 1 S.C.R. 110; and RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 S.C.R. 311 at 334.
[19] The purpose of an interlocutory order like the one sought here is to ensure that the subject matter of the underlying litigation will be preserved so that effective relief will be available should the applicant be successful in his application for judicial review (Google Inc v Equustek Solutions Inc, 2017 SCC 34 at para 24). A decision to grant or refuse such relief is a discretionary one that must be made having regard to all the relevant circumstances (Canadian Broadcasting Corp, at para 27). As the Supreme Court stated in Google Inc, “The fundamental question is whether the granting of an injunction is just and equitable in all of the circumstances of the case. This will necessarily be context-specific”
(at para 25).
[20] In the present case, under the first part of the test, the threshold for establishing that the application for judicial review raises a serious issue is a low one. The applicant only needs to show that the application is not frivolous or vexatious: RJR-MacDonald, at 335 and 337; see also Gateway City Church v Canada (National Revenue), 2013 FCA 126 at para 11 and Glooscap Heritage Society v Canada (National Revenue), 2012 FCA 255 at para 25. As in other contexts where a similar threshold must be met, this requirement serves as an initial screen that allows for the immediate rejection of a request for interlocutory relief in relation to a baseless application for judicial review (see, for example, R v Oland, 2017 SCC 17 at para 41, dealing with bail pending an appeal of a criminal conviction). It is only necessary to proceed to the second and third parts of the test if the underlying application satisfies this first requirement (RJR-MacDonald, at 337).
[21] As I have already said, I have concluded that the applicant does not meet the first part of the test because there is no reasonable possibility that his request for an extension of time will be granted.
[22] Paragraph 72(2)(c) of the IRPA provides that the Court may, “for special reasons,”
grant an extension of time for filing and serving an application for leave and for judicial review. The term “special reasons”
is not defined in the IRPA but there is no issue that the general test for extensions of time applied under Rule 8 of the Federal Courts Rules is the applicable test. Thus, in determining whether to grant an extension of time, “the overriding consideration or the real test is ultimately that justice be done between the parties”
(Alberta v Canada, 2018 FCA 83 at para 45). In most cases, including the present one, four questions will be particularly salient to this determination: (a) Has the applicant established a continuing intention to pursue the application for leave and for judicial review? (b) Has the applicant provided a reasonable explanation for his delay in pursuing the application? (c) Does the application have some potential merit? and (d) Would the respondent be prejudiced if an extension of time were granted? See Canada (Attorney General) v Hennelly, 1999 CanLII 8190, 167 FTR 158 (CA), at para 3. As stated in the notice commencing the application for leave and for judicial review, the applicant contends that the first three questions should be answered in the affirmative and the last in the negative.
[23] The respondent opposes the request for an extension of time on the basis that the applicant’s claim that he did not know that the application had to be filed within 15 days of his being notified of the RAD’s decision is not a reasonable explanation for the two-month delay in commencing the application. There is merit to this submission, especially considering that the Notice of Decision issued by the RAD makes specific reference to section 72 of the IRPA and the fact that there are time limits for bringing an application for judicial review. In my view, however, there is an even more fundamental flaw in the request for an extension of time: there is no evidence to support its key factual premises.
[24] As noted above, the applicant has not provided any evidence to support the statements in the notice of application for leave and for judicial review that he received the RAD’s decision on February 13, 2025; that he did not know he had to file his notice within 15 days of learning of the decision; and that he always intended to judicially review the decision. These statements were properly included in the notice as the grounds on which an extension of time is being sought; however, statements in a notice of application are not evidence.
[25] I acknowledge that Form IR-1 provides that an applicant must set out the date on which the applicant was notified or otherwise became aware of the matter under review. In most cases, this is unlikely to be contentious. Stating this as a fact in the notice, however, does not obviate the need for evidence of this fact when it is relevant to a request for an extension of time.
[26] The affidavit in support of the application for leave and for judicial review is silent on the factual assertions on which the request for an extension of time rests. The affidavit in support of the present motion does address the late filing of the application but, for two reasons, it is also of no assistance to the applicant. First, the relevant statements in the affidavit (see paragraph 17, above) are pure hearsay. They are not even cast as statements on information and belief. And second, even if they were statements on information and belief, and even if it were appropriate to rely on such evidence in this context (something about which I would have serious doubts), the affidavit is not part of the materials that will be considered under Rule 6(2) of the FCCIRPR when the Court determines whether to grant the extension of time.
[27] In short, in the absence of evidence to establish the necessary factual foundations of the request for an extension of time, that request is doomed to fail. In these circumstances, there is no need to consider the third or fourth parts of the Hennelly test.
[28] Some decisions of this Court have suggested that satisfying the test for an extension of time is a precondition or condition precedent for the Court to have jurisdiction to entertain a request for a stay of removal: see, for example, Mutti v Canada (Minister of Citizenship and Immigration), 2006 FC 97 at para 2; Shah v Canada (Citizenship and Immigration), 2007 FC 1166; Mair v Canada (Citizenship and Immigration), 2022 CanLII 51787; Al Tahleh v Canada (Citizenship and Immigration), 2024 CanLII 87551; Godson v Canada (Citizenship and Immigration), 2025 CanLII 3572 at para 4; Nguyen v Canada (Citizenship and Immigration), 2025 CanLII 77103; Kavita v Canada (Citizenship and Immigration), 2025 CanLII 105369. Respectfully, I am unable to agree. In my view, this broad statement is inconsistent with Rule 6(2) of the FCCIRPR, which, to repeat, states that a request for an extension of time “shall be determined at the same time, and on the same materials, as the application for leave.”
Certainly, if an extension of time is refused, there will be no jurisdiction to entertain a motion for interlocutory relief under section 18.2 of the FCA. However, unless they are also determining the application for leave at the same time (which appears to have been the case in Mutti but not in the other cases cited above), a judge considering a motion for a stay of removal cannot determine a request for an extension of time.
[29] The better approach, in my view, is to consider within the framework of the three-part test whether there is a reasonable possibility that an extension of time will be granted. If there is not, 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. It will also ensure that the motion judge does not pre-empt the leave judge, who has been given the responsibility to determine whether an extension of time should be granted, and who could well determine that request on the basis of a record that had not been filed when the stay motion is heard (because the stay motion may be heard before the parties have completed their filings on the leave application).
[30] In sum, the applicant has failed to meet the first part of the test for a stay. The underlying application for judicial review does not raise a serious issue because there is no reasonable possibility that an extension of time to file and serve that application will be granted. Further, and in any event, there is no merit to the grounds raised in the application for judicial review.
[31] Since the first part of the test has not been met, the motion must be dismissed. There is no need to address either irreparable harm or the balance of convenience.
IV. CONCLUSION
[32] For these reasons, the motion for a stay of the order for the applicant’s removal will be dismissed.
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