Federal Court Grants Stay of Removal Pending Judicial Review

Date: 20260519 Docket: IMM-9996-26 Citation: 2026 FC 639 Montréal, Quebec , May 19, 2026 PRESENT: The [NAME]: [NAME] Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent

ORDER UPON a motion on behalf of the Applicant, filed on Wednesday, May 13, 2026, for a stay of the execution of his removal order, scheduled for Wednesday, May 20, 2026, at 10:45AM to Chad [Motion] until the Court disposes of the application for leave and judicial review [ALJR] targeting a negative Pre-removal risk assessment decision dated March 6, 2026 [[NAME] Decision], rendered by an Officer of the Canada Border Services Agency [[NAME]], which ALJR was filed on May 8, 2026; AND UPON noting that the Applicant claims he only received the [NAME] Decision on or about April 21, 2026, and seeks, in the underlying ALJR, an extension of time to commence said ALJR given that pursuant to subparagraph 72(2)b) of the Immigration and Refugee Protection Act , SC 2001, c 27 [ IRPA ], his notice of application had to be served on the Respondent and filed within 15 days “after the day on which the applicant is notified of or otherwise becomes aware of the matter” ; AND UPON noting that this request for an extension of time to commence the ALJR pursuant to subparagraph 72(2)c) of the IRPA will be disposed of by the judge who will determine the ALJR in accordance with paragraph 6(2) of the Federal Courts Citizenship, Immigration and Refugee Protection Rules , SOR/93-22 ( [NAME] v Canada ([NAME]) , 2023 FC 523 at para 11); AND UPON considering the Applicant’s affidavit sworn on May 13, 2026, and the exhibits enclosed therein, including the documents he submitted to the [NAME], as well as the parties’ written representations; AND UPON having considered the Respondent’s responding motion record dated May 18, 2026; AND UPON having heard and considered the parties’ oral submissions during the hearing held on May 19, 2026; AND UPON considering that the Applicant is a citizen of Chad who claims he fled the country “after being arrested, severely tortured and falsely accused of being a “rebel” and an “enemy of the State”” by a Colonel alleged to be “notorious for violence” ; AND UPON considering that, in his affidavit before this Court, the Applicant further claims that his butcher shop was ransacked by [NAME] in 2023 and, since he left for Canada in 2024, he lives in constant fear including because: (1) [NAME] and members of the National State Security Agency [NSSE] (described as a “political police” ) have visited his house and neighbourhood making enquiries about his whereabouts and false accusations against him; (2) his wife and their seven children were also compelled to leave the city of N’Djamena after they were threatened by associates of the aforementioned Colonel; AND UPON considering that, after having received the negative [NAME] Decision, the Applicant submitted, on May 8, 2026, a request for an administrative deferral of his removal to the [NAME], which was dismissed the same day with a simple email; AND UPON considering the tri-partite test in [NAME] v Canada (Minister of Employment and Immigration) , 1988 CanLII 1420 (FCA) [ [NAME] ], according to which it must be demonstrated that: (i) a serious issue exists; (ii) the Applicants would suffer irreparable harm if their removal was not stayed; and (iii) the balance of convenience favours staying their removal; AND UPON considering that the [NAME] test is conjunctive so that, to succeed, an applicant bears the burden of establishing that they satisfy all three of its elements ( [COMPANY] v [NAME] , 2014 FCA 112 at paras 14, 19 [ [COMPANY] ]); AND UPON considering that a stay is an “extraordinary remedy” that requires an applicant to demonstrate “special and compelling circumstances” warranting exceptional judicial intervention ( [NAME] v Canada (Minister of Citizenship and Immigration) , 2006 FCA 215 at para 10; [NAME] v Canada (Citizenship and Immigration ), 2025 CanLII 81909 (FC) at para 9); AND UPON considering that the fundamental question is whether the granting of injunctive relief would be just and equitable “in all of the circumstances of the case” and that this is “necessarily context-specific” ( [COMPANY] v [COMPANY] , 2017 SCC 34 at para 25); AND UPON finding that the Applicant has met the [NAME] test and therefore the Applicant’s motion will be granted, for the following reasons: As concerns the existence of a serious issue, in the present circumstances, the threshold is low for the Applicant need only show that the underlying ALJR is neither frivolous nor vexatious ( [COMPANY] v Canada (Attorney General) , 1994 CanLII 177 (SCC), [1994] 1 SCR 311 at 335; [NAME] v Canada (Citizenship and Immigration) , 2023 FC 83 [ [NAME] ] at para 12, citing notably [NAME] [COMPANY] v Canada (National Revenue) , 2012 FCA 255 at para 25 [ [NAME] ]; [NAME] v Canada (Citizenship and Immigration) , 2024 FC 124 at paras 26-28); On this first prong of the [NAME] test, the Court finds that there is a serious issue to be tried in the underlying ALJR; The Applicant notably claims that the [NAME] Decision is unreasonable because, having explicitly found [NAME] to be credible, the Officer then demanded corroboration for the key elements of his narrative, an approach that allegedly runs afoul of the teachings of the Federal Court in [NAME] v Canada (Citizenship and Immigration) , 2020 FC 968 at paras 23-36 [ [NAME] ]. In short, because a presumption of truthfulness attaches to the narratives of applicants pursuant to the Federal Court of Appeal’s decision in [NAME] v Minister of Employment and Immigration , 1979 CanLII 4098 (FCA), [1980] 2 FC 302 at p 305, decision makers cannot require corroboration unless they first “set out an independent reason for doing so” by raising doubts regarding the applicant’s credibility, the implausibility of their testimony, or the fact that it is based on hearsay. Then, when they ask for corroborating evidence, decision makers can only ask what “could reasonably be expected to be available” and the failure to adduce such evidence can only be held against the claimant if they fail to provide a reasonable explanation for their inability to provide the evidence sought ( [NAME] at para 36). Here, prima facie , it seems that the Officer explicitly stated they deemed the Applicant to be credible, only to then find that his narrative and the four witness statements he submitted, whichcorroborated the key elements of his narrative, should all be afforded little weight “in the absence of supporting evidence” because they lacked details such as “dates” , “times” , “frequencies” and “details of dialogue” . The Officer also “noted” that the Applicant did not submit a police summons or arrest warrant to corroborate the NSEE’s continued interest in him. This is sufficient to conclude that the attack levied against the [NAME] Decision is neither frivolous nor vexatious; In its submissions, the Respondent explained that the Officer’s reasons relate to the insufficiency of the evidence provided, rather than a veiled credibility finding citing notably [NAME] v Canada (Citizenship and Immigration) , 2022 FC 814 [ [NAME] ]. However, there are obvious differences between the case at bar and the facts of [NAME]. First, it should be noted that [NAME] concerned the merits of an application for judicial review rather than a stay. In that file, the principal applicant’s narrative contained hearsay in the form of “numerous references to unnamed friends and relatives, and a named business partner, each of whom might have provided supportive evidence but did not do so” . In contrast, here, [NAME] did provide statements from the people who told him that, even after he had left Chad, the military and police repeatedly continued to come to his former residence looking for him. In Ahmed v Canada (Citizenship and Immigration) , 2018 FC 1207, Justice Norris explained that assessing whether a decision maker made a veiled adverse credibility findings or instead simply concluded that the applicant’s evidence was, in the absence of corroborative elements, insufficient in a manner that does not engage [NAME], requires a fact specific inquiry. At paragraph 31, he proposed that the question is ultimately “whether the factual propositions the evidence is tendered to establish, assuming them to be true, would likely justify granting the application for protection” (because) “[i]f they would not, then the [NAME] application failed, not because of any sort of credibility finding, but simply because of the insufficiency of the evidence” . There are cases where the Federal Court applied Justice Ahmed’s teachings and ultimately concluded that officers had “made a veiled credibility finding cloaked in the language of sufficiency” (see e.g. [NAME] v Canada (Citizenship and Immigration) , 2022 FC 1341 [ [NAME] ]). In the case at bar, the Court is convinced that the judge who will be seized of the merits could conclude that [NAME] is entitled to protection, if the allegations set forth in his narrative and by his relatives and friends in the four corroborating statements are assumed to be true. In short, whether this case is closer to [NAME] (as the Applicant claims) or [NAME] (as the Respondent claims) will be determined by the merits judge, should leave be granted. [ADDRESS] is not tasked with disposing of the merits of the underlying ALJR, and the standard applicable in the context of the present stay of removal is lower than that which governs leave (see [NAME] v Canada (Citizenship and Immigration) , 2024 FC 907 [ [NAME] ]. At this stage, it is enough for the Court to conclude that [NAME]’s challenge is not frivolous nor vexatious. Therefore, it is not necessary for the Court to take a position on the other grounds for quashing raised by the Applicant; As previously stated by our Court, “[w]here the underlying decision is a [NAME], there is usually a large degree of overlap between the first and second prongs of the RJR test. This is because the irreparable harm alleged to flow from the applicant’s removal is often the same as the harm that the [NAME] was tasked with assessing” ( [NAME] v Canada (Citizenship and Immigration) , 2023 FC 633 at para 12); In fact, the Federal Court has held that where an applicant establishes a serious issue pertaining to the risk assessment done in a [NAME] decision, irreparable harm will often result and the balance of convenience will “normally favour the applicant” ( [NAME] v Canada (Solicitor General) , 2005 FC 347 at para 45; [NAME] v Canada (Citizenship and Immigration) , 2021 CanLII 103648 (FC); [NAME] ). This is especially true when the contested [NAME] decision is the applicant’s only risk assessment, as is the case for [NAME] ( [NAME] v Canada (Citizenship and Immigration) , 2024 CanLII 46859 (FC) at paras 17, 20 and authorities cited therein). Here, the Court finds that the irreparable harm and balance of convenience factors do in fact follow the existence of a serious issue and favour the Applicant, not as a matter of course but because of the cogency of the evidence adduced; The evidence provided regarding the forward-facing risk that [NAME] faces points, as required by our jurisprudence, to real, definitive and unavoidable harm rather than hypothetical and speculative risk ( [NAME] at para 31; [NAME] v Canada ([NAME]) , 2022 CanLII 48454 (FC) at para 8; [NAME] v Canada (Citizenship and Immigration) , 2024 FC 394 citing United States Steel Corporation v Canada (Attorney General) , 2010 FCA 200 at para 7, [COMPANY] at para 24, [NAME] v Canada (Minister of Citizenship and Immigration) , 2004 FCA 427 [ [NAME] ] at para 14). The statements from his wife, from a colleague, from a member of the Chad military and from his cousin, all speak, amongst other elements, to the repeated visits the military and NSEE officials made to [NAME]’s home and workplace to enquire about his whereabouts. The Respondent is correct in stating that “[s]imply alleging that the persons will suffer the harm they have claimed in their [NAME] applications is not sufficient for the purposes of the test” (citing [NAME] v Canada (Citizenship and Immigration) , 2009 FC 593 at para 56 [ [NAME] ]). However, in [NAME] , Justice Shore concluded that the Applicant did not raise any serious issue as concerns the [NAME] decision he wanted quashed in the underlying ALJR. The case at bar is different precisely because this Court has determined that there is a serious issue with the [NAME]’s risk assessment. Exposing the Applicant to the alleged risk of persecution by sending him to Chad before the serious issue he raises against the [NAME] Decision has been adjudicated on the merits represents irreparable harm within the meaning of the [NAME] test ( [NAME] v Canada (Citizenship and Immigration) , 2024 CanLII 15495 (FC) at para 11; [NAME] v Canada (Citizenship and Immigration) , 2025 FC 717 at para 5, citing notably Roman v Canada (Citizenship and Immigration) , 2021 CanLII 7915 para 8); The Respondent correctly highlighted that irreparable harm in the specific form of the mootness of the underlying ALJR does not automatically flow from the existence of a serious issue (citing notably [NAME] v Canada (Citizenship and Immigration) , 2023 CanLII 67190 (FC); [NAME] v Canada (Citizenship and Immigration) , 2023 FC 1213; [NAME] v Canada (Citizenship and Immigration) , 2024 FC 1123 at para 30). Still, as discussed in [NAME] , the very inability to advance one’s case and seek a meaningful remedy in relation to a [NAME] Decision that contains a possibly unreasonable risk assessment can also be tantamount to irreparable harm ( [NAME] at para 22). [ADDRESS] finds that such is the case here; [ADDRESS] is also of the opinion that the balance of convenience favours the Applicant. As the Respondent pointed out, there is a public interest favouring the swift removal of foreign nationals who have been found to be inadmissible to Canada embedded in paragraph 48(2) of the IRPA , and any decision pausing the enforcement of a lawful removal order is therefore presumably contrary to the public interest ( [NAME] v Canada (Citizenship and Immigration) , 2022 FC 924 [ [NAME] ] at para 26; [NAME] at para 26 ). However, there is a countervailing -and no less public- interest in ensuring that no removal is based on a possibly ill-founded decision and the inconvenience to be visited upon the Applicant if he loses his right to seek a truly effective remedy is greater than that the AGC faces in the form of a mere postponement of the removal ( [NAME] v Canada (Citizenship and Immigration) , 2024 FC 954 at paras 18-19; [NAME] at para 28; [NAME] at para 29) . Last, the Respondent relied on the clean hands doctrine to argue that the Court should refuse to grant the Applicant the stay of removal that [NAME] seeks ( [NAME] v Canada (Citizenship and Immigration) , 2026 CanLII 9771 (FC); [NAME] v Canada (Citizenship and Immigration) , 2025 CanLII 55677). The Respondent stressed the Applicant’s immigration history. [NAME] first came to Canada from the United States, through legal port of entries, to try to seek asylum twice in December 2023. He was both times sent back to the United States after having been told he was inadmissible to Canada. Yet, the reason why he is before this Court today is because he ultimately entered Canada in February 2024, without being authorized to do so. The Respondent also notes that [NAME] does not seem to have claimed asylum in the United States and submits that his behaviour resembles “asylum-shopping” ; However, the clean hands doctrine does not extinguish this Court’s discretion. It can only guide it. As the [ADDRESS] of Appeal stated in [NAME] v [NAME] , 2023 ONCA 508 at paragraph 18, which is persuasive if not binding upon this Court, “the “clean hands” doctrine does not automatically disentitle a party with “unclean hands” from obtaining any relief” , instead, “It is a matter of discretion for the trial judge whether to refuse to grant equitable relief on the basis that a litigant has not come to court with clean hands” . Individuals who are barred from claiming asylum in Canada because of the Safe Third Country Agreement are nonetheless entitled to a [NAME] once they are in Canada. This is key to ensure Canada’s compliance with the non-refoulement principle which requires that Canada refrain from sending individuals to countries where they could face persecution, and the Federal Court has granted stays to people who illegally entered Canada from the United States to seek protection here, sought a [NAME], and subsequently raised a serious issue against the [NAME] decision (see e.g. [NAME] v Canada (Citizenship and Immigration) , 2023 CanLII 93076 (FC); [NAME] v Canada (Citizenship and Immigration) , 2024 CanLII 79196 (FC)). Given that, in the case at bar, [NAME] has identified a serious issue that could justify the quashing of the [NAME] Decision, the Court exercises its discretion to grant his Motion, despite the fact that he entered Canada to seek protection after having been informed that he was inadmissible to the country. THIS COURT ORDERS that: The Applicant’s motion for a stay of his removal from Canada is granted; No costs are awarded. blank "[NAME]" blank Judge