Docket: IMM-4777-25
Citation: 2025 FC 456
Toronto, Ontario, March 11, 2025
PRESENT: The Honourable Mr. Justice Ahmed
BETWEEN: |
MILTON RUBEN FUENTES YANEZ |
Applicant |
and |
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS |
Respondent |
ORDER AND REASONS
[1] The Applicant seeks an Order staying his removal from Canada to Mexico on March 13, 2025. An inland enforcement officer denied the Applicant’s request for a deferral of removal on February 28, 2025. The Applicant seeks to stay his removal pending the disposition of his application for leave and judicial review of the officer’s decision.
[2] I have reviewed the materials submitted by the parties and have considered their representations delivered by videoconference on March 11, 2025. I find the Applicant has met the tripartite test for a stay (Toth v Canada (Minister of Employment and Immigration), 1988 CanLII 1420 (FCA); Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 at paras 66-67).
[3] The Applicant has raised a serious issue with the deferral decision. The Applicant’s son, M, is nonverbal. In his deferral request, the Applicant stated that M is “currently being assessed and treated for autism and speech delay.”
The officer determined that the best interests of the child (“BIOC”
) with respect to M did not warrant a deferral, as M’s primary caregiver is his mother and M’s separation from the Applicant would not rise above “an unfortunate yet inherent result of the removal process.”
[4] However, primary caregivers are not the only individuals upon whom nonverbal autistic children may rely during the period immediately following their diagnosis, when their condition is assessed and their treatment and language therapy plans are created and implemented. As noted by the Respondent, “the need for a child to…obtain specialized ongoing medical care in Canada”
may constitute one of the “temporary, short-term exigent circumstances”
which would warrant granting a deferral of removal (Musni v Canada (Public Safety and Emergency Preparedness), 2023 CanLII 113706 at para 13). The officer in this case dismissed the Applicant’s deferral request on the basis that, for a child in M’s circumstances, short-term BIOC factors would not be engaged so long as his primary caregiver would remain available to provide support. I find that a serious issue arises from this unexplained assumption, particularly in light of the Applicant’s statement in his deferral request that “[he] is heavily involved in [M]’s care, education, and health appointments.”
[5] I further find the Applicant has established irreparable harm. In my view, the harm that may be caused to M as a nonverbal, autistic child as a result of being suddenly separated from a parent who is “highly involved in the child’s life”
is greater than “the usual consequences of deportation”
(Melo v Canada (Minister of Citizenship and Immigration), 2000 CanLII 15140 at para 21 (FC) (“
Melo”
)). The Applicant in this case does not merely allege “enforced separation”
and “heartbreak”
(Melo at para 21). The Applicant rightly notes that M “[is] not able to have reciprocal conversation,”
experiences challenges with forming social bonds, and only has two caregivers: his mother and the Applicant, his father. In my view, the Applicant has established that his removal during a period when “the family continues to seek expert assessments and care”
for M would result in irreparable harm.
[6] The balance of convenience lies with the Applicant. This is not a case where the applicant is a danger to the public or to the security of Canada. I agree with the Applicant that a temporary deferral in light of the short-term best interests of M is warranted, as there is a public interest in upholding the BIOC factors and the granting of this motion would merely delay, rather than preclude, the enforcement of the removal order against the Applicant (Immigration and Refugee Protection Act, SC 2001, c 27, s 48).
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