Fucito v. Canada (Citizenship and Immigration), 2022 FC 379 : Removal Order – Stay Denied Where Applicant Failed Serious Issue and Irreparable Harm Tests

The Federal Court considered Matthew William Fucito’s motion to stay his removal pending judicial review of a refusal to defer removal. He relied on his children, partner, family-law proceedings, criminal charges, and an H&C application. The Court dismissed the motion.

Key Principle

A stay of removal requires a serious issue, irreparable harm, and a balance of convenience favouring the applicant. Where the stay follows a refusal to defer removal, the serious-issue threshold is elevated and requires a likelihood of success or quite a strong case on the underlying judicial review.

Background

The applicant was inadmissible because of a U.S. criminal record and had repeatedly re-entered Canada after removal. He had biological children in Canada, supervised access, pending custody proceedings, a domestic-assault charge, and a new partner with children. He sought deferral to preserve these relationships and pursue an H&C application.

Court Findings

• Elevated Serious-Issue Threshold Was Not Met

Because the motion challenged a refusal to defer removal, the applicant had to show more than a merely arguable case. The Court required a likelihood of success or quite a strong case on judicial review. The officer had recognized the limited discretion to defer removal and considered the family circumstances, so the underlying challenge was not sufficiently strong.

• BIOC Assessment Was Adequate for Deferral Context

The officer considered the applicant’s caregiving role, supervised access, the children’s mother’s ability to support them, and the possibility of continuing family-law proceedings remotely. The Court distinguished cases involving exceptional child-specific circumstances and found the limited BIOC assessment reasonable.

• Pending H&C Application Did Not Require Deferral

The Court accepted the officer’s finding that an H&C application does not automatically stay removal and noted that the application had been filed only recently. There was no evidence that an H&C decision was imminent or that removal would prevent its continued processing.

• Irreparable Harm Was Not Established

The applicant relied on separation from his children and partner, reduced ability to participate in custody proceedings, and lower H&C success rates from abroad. The Court found the evidence insufficiently specific and non-speculative. He could continue participating in family proceedings, and the record did not show unavoidable harm to the children from reduced contact.

• H&C Approval Statistics Did Not Prove Harm

The Court rejected general statistics showing lower approval rates for overseas H&C applicants as proof of irreparable harm. Such figures did not establish what would happen in this individual case. His H&C application could continue after removal and might ultimately permit a lawful return.

• Balance of Convenience Favoured Enforcement

Canada had a strong public interest in enforcing removal orders and maintaining confidence in the immigration system. The applicant knew of his inadmissibility, had previously been removed, and had not regularized his status for years. Family separation was unfortunate, but it was a natural consequence of lawful removal and did not outweigh the public interest.

Outcome

The Federal Court dismissed the stay motion. The applicant failed the elevated serious-issue test, did not establish irreparable harm, and the balance of convenience favoured the Respondent. His removal was not stayed pending judicial review.

Case Citation:

Fucito v. Canada (Citizenship and Immigration), 2022 FC 379 (CanLII)