Pimentel Dos Santos v. Canada (Citizenship and Immigration), 2022 FC 765 : Stay of Removal Granted Where H&C Judicial Review Raised Serious Issues and Removal Would Eliminate Effective Remedy

The Federal Court considered a motion by Rodicley Pimentel Dos Santos and Vinicius Cesar Elias seeking a stay of their removal pending determination of their judicial review application challenging the refusal of their humanitarian and compassionate application. The Court granted the stay after finding that the applicants met the three-part test for interlocutory relief.

Key Principle

A stay of removal preserves the Court’s ability to provide meaningful relief if judicial review succeeds. Where an H&C refusal raises serious reviewable issues and removal would significantly weaken the applicant’s ability to obtain effective relief, the balance of convenience may favour maintaining the status quo until the litigation is resolved.

Background

The applicants were Brazilian citizens and a common-law gay couple who had lived in Canada since February 2017 after leaving Brazil due to fear of persecution based on sexual identity. They submitted an H&C application relying primarily on their establishment in Canada and adverse conditions in Brazil affecting LGBTQ+ individuals. The application was refused, and the applicants sought judicial review and a stay of removal.

Court Findings

• Serious Issue Was Established

The Court found that the judicial review application raised grounds that were neither frivolous nor vexatious. The applicants challenged the officer’s legal approach to assessing discrimination and H&C relief, including whether the officer incorrectly required evidence of a personalized risk of discrimination.

• Officer Applied an Incorrect H&C Standard

The applicants argued that the officer required them to demonstrate that they would personally face a specific risk in Brazil. The Court found this was an arguable issue because the Supreme Court’s decision in Kanthasamy rejected an overly narrow view of discrimination in the H&C context. Requiring individualized risk evidence could undermine the humanitarian purpose of section 25(1) of IRPA.

• “Extraordinary Situation” Requirement Raised a Reviewable Issue

The officer stated that section 25 relief exists for “extraordinary situations.” The Court found the applicants raised a strong argument that this language created an overly restrictive threshold inconsistent with Kanthasamy. The proper question is whether relief is justified in the applicant’s particular circumstances, not whether the case is exceptional compared with others.

• Removal Would Cause Irreparable Harm

The Court found that removing the applicants before judicial review was completed would make any successful judicial review remedy ineffective. If the applicants succeeded and the H&C decision was sent back for reconsideration, their establishment in Canada and their circumstances as a couple would have been significantly altered by removal.

• Preservation of H&C Factors Was Important

The applicants relied heavily on their establishment in Canada and the circumstances they would face in Brazil. Removal would weaken those factors and create a materially different H&C application upon redetermination. The Court held this was not a harm that could be repaired later.

• Applicants Did Not Need to Prove Judicial Review Would Succeed

The Court clarified that the applicants did not need to establish that they would likely win judicial review. They only needed to show that the application was sufficiently strong to create a real risk of remedial injustice if removal occurred before the Court decided the matter.

• Balance of Convenience Favoured Applicants

The Court recognized the public interest in enforcing valid removal orders. However, delaying removal would only postpone enforcement if the judicial review failed. In contrast, refusing the stay could permanently deprive the applicants of a meaningful remedy if they succeeded. The interests of justice therefore favoured maintaining the status quo.

Outcome

The Federal Court granted the stay of removal. The applicants were permitted to remain in Canada until the final determination of their leave and judicial review application challenging the H&C refusal. An extension of time to file the judicial review application was also granted.

Case Citation:

Pimentel Dos Santos v. Canada (Citizenship and Immigration), 2022 FC 765 (CanLII)