This article was written by Nathalie Juste, CILA Volunteer.
In the recent decision, Fashola v. Canada (Public Safety and Emergency Preparedness), 2024 CanLII 53895 (FC), the Federal Court of Canada ruled that the Applicant had demonstrated that he, his wife and two young children would suffer harm beyond the inherent consequences of deportation, such that irreparable harm was established.
The case concerns a judicial review applied for by Rasheed Adewale Fashola seeking a stay of his removal to Nigeria scheduled for June 14, 2024. Here, the Applicant demonstrated that he and the members of his immediate family would suffer harm that went beyond the consequences inherent in deportation to the extent that irreparable harm would be established if they were deported to Nigeria.
Reasonableness of the Immigration Officer’s decision
The Federal Court’s review recognized that the Applicant had established the existence of a serious problem concerning the way in which the Officer had treated the best short-term interests of the Applicant’s newborn and young child. Specifically, confirming that the best short-term interests of the newborn and young child had not been treated fairly and sensitively. Furthermore, the Officer had not sufficiently responded to the Applicant’s representations regarding the harm his children and wife would suffer in the event of removal.
Main conclusions
The decisive issue addressed by the Federal Court was the short-term best interests of the Applicant’s young children, which the Officer failed to take into consideration. Moreover, the Officer had failed to respond adequately to the Applicant’s submissions concerning the harm the young children and his wife would suffer if returned to Nigeria.
Judgment and scope
The main conclusion drawn from this decision is that the Applicant’s request for a stay of removal to Nigeria was based on a balance of convenience in his favour. The Applicant was of the view that the Officer’s decision raised serious issues and that the irreparable harm outweighed the respondent’s interest in expeditiously removing the Applicant pursuant to subsection 48(2) of the Immigration and Refugee Protection Act, SC 2001, c. 27.
Conclusion
It appears that the Applicant in Fashola v. Minister of Public Safety and Emergency Preparedness demonstrated that the Officer’s decision raised serious issues and that his interests would be outweighed by irreparable harm. Accordingly, the Court ordered that the petitioner’s motion be granted and that his removal be stayed pending a decision on his underlying application for leave and judicial review. This decision also highlights the need for officers to consider the irreparable harm of deportation on the Applicant’s family members. In this case, immigration law practitioners will remain hopeful that the ruling will shape the landscape of pre-removal examinations, leading to interest-based analyses and harm beyond inherent harm, such as irreparable harm established by this Applicant.
