Federal Court Rejects Stay of Removal Motion

Date: 20260519 Docket: IMM-10458-26 Citation: 2026 FC 640 [ENGLISH TRANSLATION] Montréal, Quebec, May 19, 2026 PRESENT: The [NAME]: [NAME] Applicant and THE MINISTER OF [NAME] Respondent

ORDER UPON the motion to stay a removal order to Kenya set to be executed on Wednesday, May 20 at 2 a.m., filed by the applicant on May 15, 2026 [Motion]; AND UPON the respondent’s reply, which, given the urgency of the matter, was filed on May 18, 2026, by way of letters with appendices, in accordance with the directions of the Court; AND UPON the oral submissions made by the parties at the hearing on May 19, 2026; WHEREAS the underlying application for leave and judicial review [ALJR], which was commenced by the applicant when he filed his notice of application after 5 p.m. on May 14, 2026, such that it is deemed to have been filed on May 15, 2026, in accordance with Rule 4.1(2) of the Federal Courts Citizenship, Immigration and Refugee Protection Rules , SOR/93‑22 [Immigration Rules], indicates that it relates to the notice of direction to report for removal sent by the Canada Border Services Agency [[NAME]] on April 23, 2026 [2026 ALJR]; AND WHEREAS even though, in his notice of motion, the applicant appears to also be challenging the refusal of his request for an administrative deferral of the removal order issued against him, dated May 11, 2026, which was only a deemed refusal at the time the Motion was filed but has since been confirmed by the [NAME], that decision is not the subject of the 2026 ALJR; AND WHEREAS Rule 302 of the Federal Courts Rules , SOR/98-106 [FC Rules] provides that, unless the Court orders otherwise, any application must be limited to a single decision, and no request in this regard has been made in this case; AND WHEREAS since the Motion was brought on an urgent basis, that is, without the three days’ notice required under Rule 362(1) of the FC Rules, counsel for the applicant appended a letter to his record in accordance with Rule 35(2) of the FC Rules, but the motion record contains no evidence that counsel previously alerted the respondent of his intention to seek a stay “as soon as the decision to bring a motion [was] made” , as required by the [NAME] at paragraph 16, while the direction to report he seeks to challenge dates back to April 23 and [NAME] attended two pre‑removal interviews with the [NAME] on April 16 and 23; AND WHEREAS the applicant’s submissions are not clear regarding the duration of the stay sought; indeed, he indicates seeking a stay until the Court’s final decision on his 2026 ALJR, but also, at the core of his allegations, he is asking that the stay continue until a decision is made on his application for permanent residence on the basis of humanitarian and compassionate considerations [H&C Application], which is not included in the motion record; AND WHEREAS the applicant is a [NAME] who claims to fear persecution because of his sexual orientation and who claims to have been persecuted for that reason in the past by the “[NAME]” group, and: (i) whose refugee protection claim was rejected by the Refugee Protection Division [RPD] on March 18, 2025, due to credibility issues regarding his alleged sexual identity; (ii) whose appeal of the RPD’s decision was dismissed by the Refugee Appeal Division [RAD], again because of credibility issues, but also after the RAD noted further inconsistencies in his testimony; (iii) whose notice of application for judicial review of the RAD’s decision was filed on December 4, 2025 [2025 ALJR], but has since remained inactive, there being no applicant’s record and no respondent’s intervention in relation to that notice; and (iv) whose request for an administrative deferral of his removal was denied by the [NAME] on May 15, 2026 [Decision Refusing Deferral]. AND [NAME] claims that he [ translation ] “received inadequate representation” from counsel representing him in the 2025 ALJR but adduces no evidence to demonstrate that the requirements of paragraph 50 of the [NAME] have been met. Paragraph 50 governs allegations of professional incompetence on the part of counsel and provides that, even if there is urgency, counsel representing the applicant must first “notify the former counsel or authorized representative in writing with sufficient details of the allegations and advise that the matter will be pled” ; AND WHEREAS the tripartite test set out in [NAME] v Canada (Minister of Employment and Immigration) , 1988 CanLII 1420 (FCA) [ [NAME] ], requires that the applicant demonstrate that: he raises a serious issue in the underlying ALJR, he would suffer irreparable harm if no stay is granted, and the balance of convenience favours granting the stay; AND WHEREAS the [NAME] test is conjunctive, such that, in order to succeed, the applicant must establish all three requirements of the test ( [COMPANY] v [NAME] , 2014 FCA 112 at paras 14, 19 [ [COMPANY] ]); AND WHEREAS a stay is “an extraordinary remedy” wherein the applicant needs to demonstrate “special and compelling circumstances” that would warrant “exceptional judicial intervention” ( Canada (Minister of Citizenship and Immigration) v Harkat , 2006 FCA 215 at para 10; [NAME] v Canada (Citizenship and Immigration) , 2016 FC 992); AND WHEREAS ultimately, the question is “whether the granting of an injunction is just and equitable in all of the circumstances of the case” , and this “will necessarily be context‑specific” ( [COMPANY] v [COMPANY] , 2017 SCC 34 at para 25); AND UPON finding that, in this case, the applicant does not meet the three requirements of the [NAME] test for the following reasons: With respect to establishing that there is a serious issue, given the nature of the decision subject to the 2026 ALJR, the threshold is low, such that the applicant need only demonstrate that his ALJR is not frivolous or vexatious ( RJR‑[COMPANY] v Canada (Attorney General) , 1994 CanLII 117 (SCC) at 335, 337–38; [NAME]) v Smith , 2019 FC 1454 at para 41; [NAME] v Canada (Minister of [NAME]) , 2006 FC 486 at para 7). Here, the Court is not persuaded that the 2026 ALJR raises a serious issue. The applicant does not provide the Court with any details regarding the basis for the 2026 ALJR or any reasons why the decision is unreasonable. Rather, he argues that there is a serious issue because [ translation ] “[he] has applied for permanent residence on humanitarian and compassionate grounds on the basis of serious, credible and exceptional evidence” and goes on to address the risk that he claims he will face if he is removed to Kenya. The seriousness of the applicant’s H&C Application— of which there is no evidence in the record, such that its existence has not even been established —is not a relevant consideration for this Motion. It is not for the Court to assess its merits. In the event that the matter proceeds, the Court could rule only on the reasonableness of the decision, thus disposing of it, should that decision be challenged and leave for judicial review be granted. Notwithstanding the foregoing, given the notice filed regarding the 2025 ALJR and the fact that the applicant appears to also be challenging the Decision Refusing Deferral, the Court nevertheless considered these elements. In any event, the Court is not satisfied that his challenges to the RAD’s decision, the Decision Refusing Deferral and the direction to report are not frivolous or vexatious for the following reasons: First, the 2026 ALJR, which, according to the notice of motion, challenges the direction to report for removal, is clearly doomed to fail. The application was commenced out of time, given that the notice was deemed to have been filed on May 15, 2026, that is, more than 15 days after the applicant had been notified of the direction to report dated April 23, 2026, contrary to paragraph 72(2)(b) of the Immigration and Refugee Protection Act , SC 2001, c 27 [IRPA]. Yet, although Rule 6 of the Immigration Rules requires that a request to extend the time for filing be made in the notice, the notice of motion contains no such request. Furthermore, as the Attorney General of Canada correctly argues, the Courts have consistently held that directions to report are not decisions subject to judicial review. This flaw is fatal, since the absence of a proper underlying application is sufficient for this Court to dismiss the Motion ( [NAME] v [NAME]) , 2010 FC 1129 at paras 17–18; [NAME] v [NAME]) , 2024 FC 55 at para 22). Second, without the benefit of the full record (including the transcripts of the hearing before the RPD) and without a clear argument from the applicant’s counsel on this matter, the Court simply cannot conclude that there is any chance that the applicant will successfully challenge the RAD’s decision of August 20, 2025, which appears to be well‑reasoned, rational, justified and coherent. The RAD noted numerous inconsistencies in the applicant’s testimony, including the following: (1) he explained that his father had undertaken steps to help him escape the country, specifically to Canada, after he was attacked in November 2022, but the applicant had applied for a visitor visa in June 2022; (2) he claimed that his intimate relationship with the individual identified as “[NAME]” started in late March 2016, before he lost contact with him between 2017 and 2023, but [NAME]’s letter instead suggests that it took two years after they met in 2016 before they dared to “act on [their] feelings” , moving the timeline to 2018; and (3) although he initially claimed that he had been caught with [NAME] and others near a river after 2021, when the RPD pointed out that this contradicted the idea that they had lost contact between 2017 and 2023, the applicant changed his story to claim that [NAME] had not been there after all. Given these inconsistencies, it was prima facie open to the RAD to conclude that [NAME] was not credible. In any event, the 2025 ALJR related to that file appears to have been abandoned, since no action has been taken in that matter. The Decision Refusing Deferral also appears to be well‑founded since, again, the applicant made no assertions as to its alleged unreasonableness. However, if the 2026 ALJR instead concerned that decision, as submitted at the hearing by counsel for the applicant, the case law states that the threshold for establishing a serious issue would then be higher and the applicant would have to demonstrate that he has “quite a strong case” , which he has not done here ( [NAME] v [NAME]) , 2009 FCA 81 at paras 66‍–‍67; [NAME] v [NAME]) , 2021 FC 936 at para 5 [ [NAME] ]; [NAME] v [NAME]) , 2025 FC 176 at para 10, citing, among others, [NAME] v Canada (Citizenship and Immigration) , 2022 FC 1801 at para 13). In this case, the officer understood that the deferral request suggested that deferral was warranted both because of the H&C Application and because of the risk [NAME] would face if he were removed to Kenya, and took this into account. As for the alleged H&C Application, the officer noted that [ translation ] “as of the date of this letter, no application for permanent residence appears in our systems, and you have provided no evidence that such an application exists” . Furthermore, the officer correctly concluded that, absent new evidence arising after the RAD’s decision and absent allegations of a new risk, he did not need to conduct a risk analysis as he was only being asked to reassess the risks already considered by the RAD ( [NAME]) v Shpati , 2011 FCA 286 at paras 41‍–‍44; [NAME] v [NAME]) , 2016 FCA 51 at para 7). Finally, he noted that the documents produced by [NAME] with respect to his allegedly fragile mental and physical health made reference to two meetings with professionals initiated just [ translation ] “in the last few days” , specifically on April 29, 2026, that is, after his two pre‑removal interviews with the [NAME]. As the respondent correctly points out, the Federal Court has previously held that it is the role of administrative decision makers to assess the probative value of medical reports, and that it may be appropriate to give low weight to such recent medical evidence where there is nothing in the record to suggest that the applicant has had any previous medical follow‑up ( [NAME] v Canada (Citizenship and Immigration) , 2020 FC 231 at paras 74‍–‍84; [NAME] v Canada (Citizenship and Immigration) , 2017 FC 293 at paras 13‍–‍15). [ADDRESS]’s case law recognizes that psychological reports prepared in anticipation of removal should be approached with some caution ( [NAME] at paras 14‍‍–15, cited in [NAME] v [NAME]) , 2019 CanLII 36998 at para 23, followed in Ntwari c Canada ( [NAME] ) , 2025 CanLII 91460 (CF) at para 7 [ Ntwari ] [currently available in French only], among others). The applicant has also failed to establish irreparable harm. He was required to adduce clear, convincing and non-speculative evidence establishing a real probability that unavoidable irreparable harm would result, putting his life or safety in jeopardy ( [NAME] v Canada (Citizenship and Immigration) , 2004 FCA 427 at para 14; [COMPANY] v Canada (National Revenue) , 2012 FCA 255 at para 31; [NAME] v Canada (Citizenship and Immigration) , 2023 FC 1399 at paras 36–40, and the cases cited therein). Here, the applicant argues that (1) he [ translation ] “currently suffers from high blood pressure, severe anxiety, panic attacks, heart palpitations, memory impairment and depressive symptoms directly related to the trauma he experienced in Kenya and the constant fear of being deported” ; and (2) [ translation ] “if returned to Kenya, [he] would be forced to live in a hostile environment where his sexual orientation would again expose him to risks of violence, discrimination and persecution” . For both these assertions, he relies on the medical reports already submitted to the officer and on [NAME] v [NAME]) , 2008 FC 1353 at paras 16–18 [ [NAME] ]. [NAME] indeed establishes that severe depression that is likely to worsen may , where the evidence is compelling, warrant a stay. The decision does not specify the content of the evidence that was in the record in that case, but Justice Frenette states that there is “credible evidence in the record that the removal will cause irreparable harm to the applicant” . No such credible evidence exists in the case at bar. The weaknesses in the evidence regarding the applicant’s mental and physical health identified by the officer and summarized above warrant giving that evidence little weight. As in [NAME] v [NAME]) , 2016 FC 1118 at paras 9–10 and Ntwari at para 7, the alleged issues are too recent and too closely related to the removal itself to warrant an exceptional measure like a stay, particularly in the absence of evidence regarding access to the care needed in Kenya. With respect to the balance of convenience, given the public interest in enforcing removal orders issued in accordance with Canadian law as soon as possible, as set out in subsection 48(2) of the IRPA, any stay is presumed to be contrary to the public interest ( [NAME] v [NAME]) , 2008 FCA 165 at para 22; [NAME] v Canada (Citizenship and Immigration) , 2023 FC 83 at para 26; [NAME] v Canada (Citizenship and Immigration) , 2022 FC 924 at para 26). The applicant has not put forward any countervailing interest in this case. THIS COURT ORDERS that: The applicant’s motion for a stay of his removal is dismissed. No costs are awarded. “[NAME]” Judge Certified true translation [NAME], Senior Jurilinguist