Docket: IMM-3116-24
Citation: 2026 FC 206
Ottawa, Ontario, February 12, 2026
PRESENT: The Honourable Madam Justice Tsimberis
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BETWEEN: |
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REZA BABAEE CHESHMEAHMADREZAEE |
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Applicant |
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and |
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THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS |
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Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicant Mr. Reza Babaee Cheshmeahmadrezaee seeks judicial review of a decision dated February 23, 2024 [Deferral Decision] of a Canada Border Services Agency [CBSA] officer refusing to defer his removal [Deferral Officer] because he was inadmissible to Canada pursuant to paragraph 36(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] for a conviction of sexual assault pursuant to section 271 of the Criminal Code, RSC 1985, c C-46 and did not benefit from a statutory stay.
[2] On judicial review before the Court, Mr. Cheshmeahmadrezaee raises two issues with the Deferral Decision:
a. Is the Officer’s interpretation of paragraph 50(b) of the IRPA unreasonable?
b. Did the Officer err by failing to respond to Mr. Cheshmeahmadrezaee’s submissions in support of his deferral request?
[3] Mr. Cheshmeahmadrezaee submits that the Deferral Officer erred in finding that he did not benefit from a statutory stay and failed to explain why “term of imprisonment”
in paragraph 50(b) of the IRPA includes only persons detained or incarcerated in a “penitentiary, jail, reformatory, or prison”
. Mr. Cheshmeahmadrezaee also submits that the Deferral Officer erred by failing to respond to his written deferral submissions.
[4] In response, the Respondent Minister of Public Safety and Emergency Preparedness [Minister] submits that there is no applicable stay under paragraphs 50(a) and 50(b) of the IRPA and that Mr. Cheshmeahmadrezaee’s submissions were reasonably assessed through the lens of a deferral and whether a short-term deferral of his removal was warranted.
[5] For the reasons that follow, this Court dismisses this application for judicial review. The Deferral Officer reasonably assessed the evidence before them, reasonably relied on a Supreme Court of Canada decision that a conditional sentence order imposed pursuant to the Criminal Code does not constitute a “term of imprisonment”
under paragraph 36(1)(a) of the IRPA, and reasonably concluded that being a subject to a conditional sentence order and its accompanying conditions, Mr. Cheshmeahmadrezaee does not benefit from an applicable statutory stay of removal under section 50 of the IRPA.
II. Procedural History
[6] Mr. Cheshmeahmadrezaee, a citizen of Iran, entered Canada in January 2014 as an international student. Between 2014 and 2018, Mr. Cheshmeahmadrezaee returned to Iran on multiple occasions.
[7] On August 8, 2019, Mr. Cheshmeahmadrezaee was charged with sexual assault. On October 7, 2021, he was convicted, and then sentenced on December 16, 2022, to a conditional sentence order of two (2) years less a day, along with a term of probation to be served consecutively and various ancillary orders. On December 19, 2022, Mr. Cheshmeahmadrezaee filed a Notice of Appeal with the Ontario Court of Appeal, challenging both his conviction and sentence.
[8] On January 18, 2023, Mr. Cheshmeahmadrezaee was found inadmissible for serious criminality pursuant to paragraph 36(1)(a) of the IRPA and was issued a deportation order.
[9] On March 6, 2023, Immigration, Refugees and Citizenship Canada received Mr. Cheshmeahmadrezaee’s pre-removal risk assessment [PRRA] application. On October 24, 2023, his PRRA application was refused, and this was communicated to him on December 12, 2023.
[10] On February 7, 2024, Mr. Cheshmeahmadrezaee was issued a Direction to Report for removal. On February 16, 2024, CBSA received M. Cheshmeahmadrezaee’s deferral request.
[11] On February 20, 2024, Mr. Cheshmeahmadrezaee served and filed an application for leave and for judicial review of the Deferral Decision, as well as a motion to stay his removal.
[12] On February 23, 2024, Mr. Cheshmeahmadrezaee’s request to defer his removal scheduled for February 28, 2024 until his criminal appeal is decided and in light of the risk he faces in Iran, was refused.
[13] On February 26, 2024, the Court stayed on consent Mr. Cheshmeahmadrezaee’s removal pending final disposition of the application for judicial review of the Deferral Officer’s refusal to defer the Applicant’s removal: Cheshmeahmadrezaee v Canada (Citizenship and Immigration), 2024 CanLII 13954 (FC).
[14] On December 20, 2024, Mr. Cheshmeahmadrezaee’s appeal of his criminal conviction was dismissed, although his appeal of his sentence was granted, reducing his conditional sentence order from two (2) years-less-a-day to twenty (20) months: R v RB-C, 2024 ONCA 930.
III. Decision Under Review
[15] On February 23, 2024, the Deferral Officer first found that the risk arising from his atheism and criminal record is not new and has already been determined by the PRRA Officer. Second, the Deferral Officer found that, although Mr. Cheshmeahmadrezaee is appealing his criminal conviction, he was sentenced in December 2022, and therefore criminally inadmissible to Canada pursuant to paragraph 36(1)(a) of the IRPA and is under a valid and enforceable removal order.
[16] Furthermore, the Deferral Officer noted that a temporary resident permit application, submitted on February 1, 2024, remained outstanding and there was no indication that a decision was imminent; that Mr. Cheshmeahmadrezaee does not benefit from the Administrative Deferral of Removal [ADR] for Iran due to his inadmissibility; that he has family (parents, siblings, grandmother) in Iran who may assist him with repatriation; and that he does not benefit from a paragraph 50(b) of the IRPA stay as his conditional sentence order does not constitute a “term of imprisonment”
as per Tran v Canada (Public Safety and Emergency Preparedness), 2017 SCC 50 [Tran].
IV. Standard of Review
[17] The presumptive standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 10, 25. To avoid intervention on judicial review, the decision must bear the hallmarks of reasonableness – justification, transparency and intelligibility: Vavilov at para 99. For the reviewing court to intervene, the party challenging the decision must satisfy the court that “there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”
and that the alleged flaws “must be more than merely superficial or peripheral to the merits of the decision”
: Vavilov at para 100.
[18] The Court must avoid reassessing and reweighing the evidence before the decision-maker; a decision may be unreasonable, however, if the decision-maker “fundamentally misapprehended or failed to account for the evidence before it”
: Vavilov at paras 125-126.
V. Analysis
A. Is the Officer’s interpretation of paragraph 50(b) of the IRPA unreasonable?
[19] The Deferral Officer found that Mr. Cheshmeahmadrezaee’s appeal of his conviction and his conditional sentence order did not create a stay under the IRPA because a conditional sentence is not captured in the meaning of the phrase “term of imprisonment”
given he was not incarcerated or detained in a facility. The Deferral Officer explicitly refers to the Supreme Court of Canada decision in Tran to support this conclusion. The Deferral Officer found that a removal order must be enforced while M. Cheshmeahmadrezaee is serving a conditional sentence order.
[20] Mr. Cheshmeahmadrezaee submits that a reasonable interpretation of the phrase “term of imprisonment”
for the purposes of paragraph 50(b) of the IRPA includes conditional sentence orders, if not generally then at least in his circumstance, and that the Deferral Officer blindly applied Tran without any consideration of the differences between paragraphs 36(1)(a) and 50(b) of the IRPA. Mr. Cheshmeahmadrezaee asserts that foreign national offenders like him could be removed from Canada without having to serve a single day of their conditional sentence; that the CBSA would essentially nullify an entire conditional sentence by removing a foreign national offender from Canada; and that the CBSA’s removal of a person subject to a conditional sentence order would force that person to breach the terms of that order.
[21] I am of the view that it was reasonable for the Deferral Officer to rely on the Supreme Court decision in Tran related to paragraph 36(1)(a) of the IRPA, to apply the same interpretation of the words “term of imprisonment”
in paragraph 50(b) of the IRPA, and to conclude that no statutory stay applies for Mr. Cheshmeahmadrezaee: Tran at para 24.
[22] I reproduce below paragraph 50(b) of the IRPA:
Stay
50. A removal order is stayed
[…]
(b) in the case of a foreign national sentence to a term of imprisonment in Canada, until the sentence is completed;
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Sursis
50. Il y a sursis de la mesure de renvoi dans les cas suivants:
[…]
b) tant que n’est pas purgée la peine d’emprisonnement infligée au Canada à l’étranger;
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[23] Mr. Cheshmeahmadrezaee’s argument is similar to the one made by the applicant in Lopez Garcia v Canada (Public Safety and Emergency Preparedness), 2025 CanLII 6677 (FC) [Lopez Garcia], where it was argued that the officer “misinterpreted the law and failed to apply a statutory stay of removal in accordance with paragraph 50(b) of the [IRPA]”
and that the officer misinterpreted the decision in Tran: Lopez Garcia at 4-5.
[24] As explained in Lopez Garcia, this is not a situation where there is “room for only one reasonable interpretation of the provision”
as in Mason v Canada (Citizenship and Immigration), 2023 SCC 21 at para 121. The Deferral Officer’s conclusion “reflects that the same term of words should generally be interpreted the same way, particularly in the same Act and where the context is similar […]”
: Lopez Garcia at 10.
[25] While the Supreme Court in Tran dealt with paragraph 36(1)(a) of the IRPA and found that, in that context, a “term of imprisonment”
does not include a conditional sentence, I am of the view that the Deferral Officer reasonably concluded that, for the purposes and principles of sentencing, Tran could also apply to the interpretation of “term of imprisonment”
in paragraph 50(b) of the IRPA.
B. Did the Officer err by failing to respond to Mr. Cheshmeahmadrezaee’s submissions in support of his deferral request?
[26] Mr. Cheshmeahmadrezaee submits that the Deferral Officer failed to grapple with the four arguments he raised in favor of granting his deferral request, and relies on the Court’s finding that there is a “heightened responsibility”
on a deferral officer to ensure that their reasons “demonstrate that they have considered the consequences of a decision and that those consequences are justified”
: Antwi v Canada (Public Safety and Emergency Preparedness), 2022 CanLII 16866 (FC) at 8 citing Vavilov at para 135.
(1) Subject to a stay of removal pursuant to paragraph 50(b) of the IRPA
[27] Mr. Cheshmeahmadrezaee submits that the Deferral Officer ignored the guidance in both of its own enforcement manuals, ENF 10 on “Removals,”
and ENF 22 on “Persons Serving a Sentence”
and did not explain why they were departing from the Minister’s guidelines and instead relied on Tran. Mr. Cheshmeahmadrezaee submits the Deferral Officer did not address any of the other submissions put forward. Both parties agree that manuals and guidelines are not binding on decision makers: Sharifpouran v Canada (Citizenship and Immigration), 2022 FC 663 at para 22. Mr. Cheshmeahmadrezaee is simply disagreeing with the Deferral Officer’s reliance on the Supreme Court’s decision in Tran over an internal enforcement manual.
[28] Before the Court, Mr. Cheshmeahmadrezaee insists on the fact that he provided extensive submissions as to why the statutory stay provided in paragraph 50(b) of the IRPA is applicable to him, why the Tran decision does not apply, as well as policy justifications as to why the phrase “term of imprisonment”
included conditional sentence orders. Reasonableness review does not require a decision-maker to match the word count of a party’s submissions. It only requires that the reasons given engage with the core determinative issue, which in this case was whether a conditional sentence constitutes a term of imprisonment for the purposes of paragraph 50(b) of the IRPA. It is clear from the decision that the Deferral Officer has not failed to respond to Mr. Cheshmeahmadrezaee’s submissions on the applicability of paragraph 50(b) of the IRPA and the interpretation of the decision in Tran.
(2) Subject to a stay of removal pursuant to paragraph 50(a) of the IRPA
[29] Before this Court, Mr. Cheshmeahmadrezaee submits that the Deferral Officer ignored his alternative argument that he is subject to a statutory stay under paragraph 50(a) of the IRPA as the enforcement of his removal order will directly contravene a sentencing order from the Ontario Court of Justice. The relevant paragraph 50(a) of the IRPA is:
Stay
50. A removal order is stayed
(a) if a decision that was made in a judicial proceeding - at which the Minister shall be given the opportunity to make submissions -would be directly contravened by the enforcement of the removal order;
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Sursis
50. Il y a sursis de la mesure de renvoi dans les cas suivants:
a) une décision judiciaire a pour effet direct d'en empêcher l'exécution, le ministre ayant toutefois le droit de présenter ses observations à l'instance;
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[30] The Deferral Officer held that Mr. “Cheshmeahmadrezaee’s appeal of his conviction and the Conditional Sentence Stay Order of the Court of Appeal for Ontario in and of itself does not create a stay of the IRPA.”
: Redacted Certified Tribunal Record [CTR] at 5. While the Deferral Officer did not explicitly deal with Mr. Cheshmeahmadrezaee’s alternative argument under paragraph 50(a) of the IRPA and did not indicate explicitly that neither his conditional sentence order or the stay of this order pending appeal directly prohibit his deportation, the Deferral Officer developed sufficient reasoning to allow me to understand their decision and assess whether, as a whole, it was reasonable: Vavilov at para 85.
[31] The Deferral Officer found that Mr. Cheshmeahmadrezaee’s appeal of his conviction and conditional sentence order did not create a stay under the IPRA.
[32] As Justice Rouleau held in Perez v Canada (Minister of Citizenship and Immigration), 2005 FC 1317 at para 19 [Perez]:
[19] In my opinion, the conditions imposed by the Review Board would not be directly contravened by the enforcement of a valid removal order. For the direct contravention principle to apply, express language prohibiting the deportation of an inadmissible person from Canada would have to be used by a decision maker in a judicial proceeding.
[Emphasis added.]
[33] Because there would be no “direct”
contravention of the sentencing conditions if the valid deportation order were to be enforced, no stay arises under paragraph 50(a) of the IRPA. As such, there was no need for the Deferral Officer to address this in the reasons: Perez at paras 18-19, 27; Alexander v Canada (Solicitor General), 2005 FC 1147 at paras 26-34, aff’d on other grounds 2006 FCA 386; Adult Conditional Sentence Order, Redacted CTR at 28- 29; Ontario Court of Appeal’s Conditional Sentence Stay Order, Redacted CTR, at 58-59.
[34] As for the extensive submissions put forth by Mr. Cheshmeahmadrezaee, I agree with the Minister that they wade into the policy realm and are predicated on the assumption that conditional sentence orders could not be structured in a way that considers removal proceedings. The Minister provides the example of a conditional sentence order that could directly prohibit deportation if a Court desired, thus bringing it within the ambit of a paragraph 50(a) statutory stay and removing any potential for deportation undermining the intention behind a particular sentence. This was clearly not the case of the conditional sentence order before the Deferral Officer.
(3) Criminal Appeal
[35] Third, Mr. Cheshmeahmadrezaee submitted in his deferral request that deferral is warranted until his criminal appeal is disposed of. The Minister submits that deferrals are intended to be short-term in nature, that the evidence before the Deferral Officer indicated the appeal was to be heard in the summer of 2024, with a decision expected within six months of the hearing. This would amount to a deferral of almost one year, which is not short-term. Furthermore, the Minister argues there is no statutory or regulatory stay of removal pending an appeal of a criminal conviction, as noted as well by the Deferral Officer.
[36] I agree with the Minister. A deferral of removal is not meant to be a permanent measure, and the scope of an officer’s discretion to defer removal under subsection 48(2) of the IRPA is limited to short-term deferrals based on temporary impediments to removal: Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at para 54; Canada (Public Safety and Emergency Preparedness) v Shpati, 2011 FCA 286 at para 45; Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 at paras 49-51.
(4) ADR for Iran
[37] It was reasonable for the Deferral Officer to refuse the deferral request based on generalized conditions in Iran, including the existence of an ADR. Paragraph 230(3)(c) of the Immigration and Refugee Protection Regulations, SOR/2002-227specifies that in the ADR context, no stay exists in cases where an individual, like Mr. Cheshmeahmadrezaee, is inadmissible for serious criminality. Finding that an ADR warrants deferral would run contrary to this and would frustrate the intent behind subsection 230(3). The Deferral Officer’s analysis was reasonably focused where it should be.
VI. Conclusion
[38] The judicial review application is dismissed, as the Deferral Decision under review was reasonable, both as to the resulting outcome and the decision-making process followed.
[39] The parties confirmed that there is no serious question of general importance that ought to be stated. This is a conclusion shared by the Court.
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