Navigating the Narrow Path: Understanding Deferral of Removal in Canada - Insights from Nam v. Canada (2025 FC 720)
As immigration consultants, we constantly navigate the complexities of Canada's immigration laws and procedures. One particularly sensitive area is the deferral of removal orders. A recent Federal Court decision, Nam v. Canada (Public Safety and Emergency Preparedness), 2025 FC 720, offers valuable insights into the stringent criteria and the level of scrutiny applied to such requests. Understanding this case is crucial for both effectively representing our clients and managing their expectations.
In Nam v. Canada, the applicant sought judicial review of a CBSA officer's refusal to defer his removal. While the Court ultimately granted the application and ordered a redetermination, the reasons highlight several key principles that all immigration professionals should be aware of.
The Exception, Not the Rule:
The most significant takeaway from this case is the reaffirmation of the very limited discretion afforded to CBSA officers in deferring removal orders. The Court explicitly stated that deferral is an exception, reserved for truly exceptional circumstances where proceeding with removal would expose the individual to an imminent risk of death, extreme sanction, or inhumane treatment. This underscores that a request for deferral is not simply another avenue to delay departure; it demands compelling evidence of dire consequences.
The Critical Role of Mental Health Evidence:
The core of the Court's decision to order a redetermination lay in the Officer's inadequate assessment of the applicant's mental health. The case emphasizes that when mental health is presented as a reason for deferral, the evidence must be comprehensive and directly link the act of removal to a significant deterioration of the individual's well-being, potentially leading to self-harm. Simply stating a diagnosis is insufficient. The evidence must articulate how removal, specifically, would have a severe negative impact beyond the typical stress associated with such proceedings.
Furthermore, the Court scrutinized the Officer's suggestion of virtual mental healthcare in the applicant's home country. This highlights the need for decision-makers to have a reasonable and evidence-based foundation for any proposed alternatives. Assumptions about the accessibility and suitability of such resources will be challenged if not supported by the specific circumstances of the case.
H&C vs. Deferral: Understanding the Distinction:
The Nam case also clarifies the distinct nature of a deferral request compared to a Humanitarian and Compassionate (H&C) application. While a pending H&C application is a factor an officer can consider in a deferral request, it does not automatically halt removal. Officers are not required to conduct a full H&C assessment when considering a short-term deferral. This distinction is vital for managing client expectations and understanding the separate criteria and objectives of each process.
The High Bar for Charter Arguments:
The applicant's argument based on Section 12 of the Charter (cruel and unusual treatment) was ultimately unsuccessful. The Court reiterated the high threshold for such claims, emphasizing that the treatment must be "grossly disproportionate" and shock society's sense of decency. The existence of "safety valves" within the immigration system, such as the PRRA process and the possibility of an H&C application, can often mitigate such arguments.
Key Takeaways for Immigration Consultants:
Set Realistic Expectations: Clearly communicate the limited scope of deferral of removal to your clients.
Gather Comprehensive Evidence: When mental health is a factor, ensure you have detailed reports that specifically address the impact of removal.
Challenge Assumptions: Scrutinize any proposed alternatives by authorities and ensure they are realistic and evidence-based for your client.
Understand Process Distinctions: Clearly differentiate between deferral requests and other immigration applications like H&C.
Focus on Imminent and Severe Harm: For deferral requests, the evidence must highlight immediate and severe negative consequences of removal.
The Nam v. Canada case serves as a valuable reminder of the stringent requirements for deferral of removal in Canada. By understanding the Court's reasoning, we can better advise our clients, gather the necessary evidence, and navigate this complex area of immigration law with greater clarity and effectiveness.
