Federal Court: CBSA Used Wrong Legal Test for Removal Deferral Request
- Citation
- 2025 FC 1918
- Decided
- Court file
- IMM-19593-24
- Full judgment
- Read the decision
Case Law Overview
Abdelsalam v. Canada (Public Safety and Emergency Preparedness), 2025 FC 1918
The Applicants sought judicial review of a Canada Border Services Agency (CBSA) Officer's refusal to defer their removal. The Officer denied the deferral request, which was based on a pending H&C application, by stating that deferrals were only available in "extreme circumstances."
Court Ruling
The Court dismissed the application as moot because the original grounds for the deferral request no longer existed. However, the judge exercised his discretion to confirm that the CBSA Officer committed a significant error of law by applying the wrong legal test; the correct test for a deferral is not the high threshold of "extreme circumstances."
Key Quote from the Court
I...find the decision unreasonable because the Officer misunderstood their discretion to defer removal under s. 48(2) of IRPA to be limited to “extreme circumstances” and because the Officer erroneously relied on Federal Court jurisprudence concerning interlocutory stays, notably jurisprudence that concerns a different legal test than the officer is to apply. (at para 8)
Expert Takeaways
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CBSA Cannot Use the Wrong Legal Standard This case confirms that CBSA officers deciding on a removal deferral must not apply the stricter "extreme circumstances" test used by courts for stay motions. Their discretion is governed by the IRPA, and using an incorrect, higher standard makes the decision unreasonable.
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Mootness Can Defeat a Strong Case Even when a decision-maker makes a clear legal error, if the circumstances change and the original reason for the request becomes irrelevant (e.g., a related application is refused), the Court may dismiss the judicial review as moot.
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Clarifying the Law for Future Applicants The Court's willingness to address the legal error, despite the case being moot, serves as important guidance for future deferral requests. Counsel can now cite this decision to remind CBSA of the correct legal framework for their discretion.
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The Removal Process Resets Dismissal of a judicial review application and the lifting of a stay does not mean immediate removal. The process typically restarts with CBSA issuing a new notice for a departure interview, providing a fresh opportunity to request a deferral based on current circumstances.
There is a deadline on this
That is the window to file an Application for Leave and for Judicial Review at the Federal Court, counted from the day you were notified of the decision. An extension can be requested, but it is granted at the Court's discretion - it is not automatic.
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Disclaimer
The information provided in this article is for general informational purposes only and does not constitute legal advice. Immigration law is complex and subject to change. For advice specific to your situation, please schedule a consultation with a qualified legal professional.
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Questions people ask after reading a case like this
Does this mean my own case will succeed?
No. Every application is decided on its own record. A reported decision shows how the Federal Court has reasoned about a particular kind of error - it does not predict the result of a different file. What it can tell you is whether the problem in your refusal is the kind of problem the Court has been willing to intervene on.
How long do I have to challenge a refusal?
Under the Immigration and Refugee Protection Act you generally have 15 days to file an Application for Leave and for Judicial Review if the decision was made inside Canada, and 60 days if it was made outside Canada, counted from when you were notified. The Court can extend that period, but an extension is discretionary - it is not automatic.
What actually happens at the Federal Court?
Judicial review has two stages. You file the application and a written record, and a judge decides on paper whether to grant leave - permission for the case to proceed. If leave is granted, there is a hearing. The Court does not re-decide your immigration application; it decides whether the officer's decision was reasonable and procedurally fair. If you succeed, the file is normally sent back to be decided again by a different officer.
Do I have to be in Canada to bring an application?
No. Applicants outside Canada regularly bring judicial review applications, which is why the longer 60-day deadline exists for decisions made abroad. Applicants are not normally required to attend in person.
What happens in the free 15-minute review?
You explain what was refused or delayed and when you were notified. We tell you whether your filing window is still open, which issues in the decision look arguable, and what the realistic options are - including reapplying instead of litigating, where that is the better route. There is no obligation to retain us afterwards.
More Pre-Removal Risk Assessment (PRRA) rulings
Federal Court: Winning Judicial Review Doesn't Guarantee Legal Costs
Court: Officers Can't Demand 'Exact' Details While Ignoring Real Refugee Risk
Federal Court: Refusal Based on "Insufficient Evidence" is a Credibility Finding
Federal Court Overturns PRRA Refusal for Relying on Outdated Country Information
Written by
Ali Dadkhah
Ali Dadkhah is a litigator whose practice is dedicated to challenging government decisions at the Federal Court of Canada. He specializes in judicial review, providing a crucial avenue for recourse for individuals and businesses who have faced unfair or unreasonable administrative outcomes. Bilingual legal support in English and Persian (Farsi)