Federal Court Grants Stay of Removal for Claimants Seeking Judicial Review

Date: 20260714 Docket: IMM-1852-26 Citation: 2026 FC 949 Montreal, Quebec, July 14, 2026 PRESENT: The Honourable Mr. Justice Duchesne BETWEEN: [NAME] AND [NAME] Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent

REASONS AND

ORDER [ 1 ] The Applicant [NAME] [the Principal Applicant] and her three minor daughters [the Minor Applicants] are all citizens of Nigeria. They have brought a motion for an Order staying their removal from Canada to Port Harcourt, Nigeria. Their removal is scheduled to take place on July 15, 2026. [ 2 ] Their removal follows their unsuccessful April 29, 2024, refugee claims. They had claimed that they are afraid to return to Nigeria because their family is threatening to force the twin Minor Applicants to participate in a twin ritual. They also allege their family is threatening to force female genital mutilation [FGM] on all 3 Minor Applicants. [ 3 ] Their claim was heard by the Refugee Protection Division [the RPD] on October 1, 2025, and was rejected on October 7, 2025. The RPD found the Applicants were not credible about several aspects of their claim. The RPD also found the Applicants did not have a forward-facing risk of persecution or harm in Nigeria. [ 4 ] The Applicants appealed the RPD decision to Refugee Appeal Division [[NAME]]. The [NAME] dismissed their appeal because it determined the Applicants have a viable internal flight alternative [IFA] in Port Harcourt, Nigeria, because their agents of harm (their family members) do not have the means to locate them there and that the Applicants are not at risk of FGM there. While credibility may have been an issue before the RPD, it was not a threshold issue before the [NAME]. [ 5 ] The [NAME] reasons were dated December 17, 2025. The reasons were delivered by the [NAME] to the Applicants’ solicitor on December 19, 2025, through the [NAME] [[NAME]] “My Case” electronic document exchange system. The Principal Applicant deposes in her affidavit on this motion that, “for reasons unknown” to her, she did not become aware of the negative [NAME] decision until December 30, 2026. The Principal Applicant’s evidence is that she instructed her solicitor to commence the underlying Application for leave and for judicial review [ALJR] on December 30, 2025. The ALJR was eventually filed on January 12, 2026. [ 6 ] The Applicants’ ALJR sets out that: The applicants seek leave of court to commence an application for judicial review of: The negative decision of the [NAME] Appeal Division, on their Refugee Appeal, dated December 17, 2025, and signed December 19, 2025. The Applicant acquired knowledge of this wrong decision on December 30, 2025. (The emphasis is mine) [ 7 ] The Applicants have not included any allegations or serious reasons in their ALJR directed to a potential order for an extension of time to file their ALJR pursuant to Rule 6 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules , SOR/93-22. [ 8 ] The allegations contained in the ALJR as to the date when, as is required by paragraph 72(2)(b) of the Immigration and Refugee Protection Act , SC 2001, c 27 [ IRPA ], “the applicant is notified of or become aware of the matter” does not actually plead or allege when the Applicant was “notified of or became aware” of the [NAME]’s negative decision, only the date on which the Applicant, “acquired knowledge” of the negative [NAME] decision. [ 9 ] It would appear on the strength of the allegations of the ALJR that the Applicants had filed their ALJR in a timely manner and, as a result, that they benefitted from the statutory stay of removal contemplated by section 231 of the Immigration and Refugee Protection Regulations [ IRPR ]. [ 10 ] The Respondent viewed the matter differently. The record before the Court reflects that the Respondent issued a direction to report to the Applicant on June 5, 2026. This direction to report would appear have been issued in the face of the statutory stay triggered by section 231 of the IRPR on January 12, 2026, when the ALJR had been filed. [ 11 ] The Respondent argues that the Applicants filed their ALJR out of time and that the statutory stay contemplated by section 231 of the IRPR does not apply. The Respondent’s documentary evidence, a Statement of Service document without any electronic transmission routing slip or accessory documentary evidence, reflects that the negative [NAME] decision was “provided” to the Applicants’ solicitors through the [NAME] on December 19, 2025. The Respondent argues that the “provision” of the [NAME] decision through the [NAME] on December 19, 2025, establishes that the Applicants had been notified of the negative [NAME] decision on the date indicated in on the Statement of Service – on December 19, 2026 – and that their ALJR as filed on January 12, 2026, was filed outside of the 15-day deadline set out in paragraph 72(2)(b) of the IRPA , with the effect that the Applicants no longer benefitted from the statutory stay of removal. [ 12 ] The date upon which an applicant was “notified of or became aware of” a decision or matter to trigger the time prescribed by paragraph 72(2)(b) of the IRPA is a question of fact to be established by evidence ( [NAME] v. Canada (Citizenship and Immigration) , 2024 FC 1714, at para 15; [NAME] v. Canada (Citizenship and Immigration) , 2025 FC 1101, at para 13 [ [NAME] ]). In [NAME] , this Court determined that the applicants’ failure to lead evidence as to when they were “actually notified or of otherwise became aware” of the negative decision to be judicially reviewed, combined with the allegation in their ALJR regarding the date upon which a decision had been “communicated” to them, was fatal to their ALJR because they had not established the fact to be established to satisfy paragraph 72(2)(b) of the IRPA : the date when they where notified of or otherwise became aware of the decision to be reviewed. [ 13 ] Contrary to the situation that prevailed in [NAME], the Applicants in this case have led affidavit evidence that the Applicants became aware of the negative [NAME] decision on December 30, 2025. This evidence is to be contrasted with the Respondent’s documentary evidence through a “Statement of Service” that the negative [NAME] decision would have been provided on December 19, 2025, but without any probative electronic routing information that establishes the electronic address to which the negative [NAME] decision had in fact been sent, and when, for the purposes of notification to the Applicants’ solicitors. [ 14 ] The Applicants sought to file very late additional affidavit evidence that includes an unsworn letter from the Applicant’s solicitor who was to have been provided with the [NAME] decision on December 19, 2025, through the [NAME]. The solicitor’s letter reflects that the solicitor “did not have access to” the [NAME] up to December 30, 2025. This does not answer the question of whether notification had been accomplished despite the solicitor’s limited access to the [NAME]. The Respondent objected to the late evidence being accepted on this motion. [ 15 ] The evidence at issue could have been included in the Applicants motion record but was not. It would be unfair to permit the Applicants to file what is clearly reply evidence that followed the service and filing of the Respondent’s responding record without leave. The very late additional affidavit evidence is therefore inadmissible. [ 16 ] The stay of a removal order is a form of extraordinary equitable relief requiring the exercise of the Court’s discretion having regard to all of the relevant circumstances. To succeed on a motion to stay the enforcement of a removal order, the Applicants must meet all factors of the tripartite test for a stay motion: 1) there is a serious issue to be tried (that is the underlying application for leave and judicial review raises a serious issue); 2) the Applicants would suffer irreparable harm that is not quantifiable in damages if the stay were not granted; and, 3) the balance of convenience favours granting the stay ( [NAME] v Canada (Minister of Employment), (1988) 1988 CanLII 1420 (FCA), 86 NR 302 (FCA); RJR‑[COMPANY]. v Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 SCR 311 [RJR]; R v [NAME] , 2018 SCC 5 at para 12). The application of the test for a stay is highly contextual, and fact-dependent. As the Supreme Court of Canada explained, “[u]ltimately, the question is whether granting the injunction would be just and equitable in all the circumstances of the case” ( [COMPANY] v [COMPANY] , 2017 SCC 34 at para 1). [ 17 ] [ADDRESS] finds that the Applicants have a serious issue to be determined with respect to whether they benefit from the statutory stay of proceeding contemplated by section 231 of the IRPR . Depriving the Applicants of the benefit of that statutory stay of proceeding, if it in fact applies, would cause the Applicants to suffer irreparable harm in that they would be deprived of a statutory right they would be entitled to. While the public interest certainly lay in the timely and efficient enforcement of the IRPA , it also lay in ensuring that individuals are not deprived of a statutory right without appropriate reason. [ 18 ] It is just and equitable in the circumstances to grant the Applicants’ motion.

ORDER in IMM-1582-26 THIS COURT’S

ORDER is that : The Applicants’ motion for stay of their removal from Canada on July 15, 2026, is hereby granted. This stay shall remain in effect until a further or other order of this Court. No costs are payable by any party. “Benoit M. Duchesne” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-1852-26 STYLE OF CAUSE: [NAME] AND [NAME] v. MCI PLACE OF HEARING: VIDEOCONFERENCE (MONTREAL) DATE OF HEARING: july 14, 2026

REASONS aND

ORDER: duchesne, j. DATED: july 14, 2026 APPEARANCES : [NAME] For The Applicants [NAME] For The Respondent SOLICITORS OF RECORD : [COMPANY], Ontario For The Applicants Attorney General of Canada Toronto, Ontario For The Respondent