Administrative deferrals of removal (“ADR“) are temporary measures when the Government of Canada determines that immediate action is needed to temporarily defer removals of foreign nationals to countries experiencing humanitarian crisis. Once the situation in a country stabilizes the ADR is lifted and removals resume.
Those who are inadmissible to Canada on grounds of criminality, international or human rights violations, organized crime, or security can still be removed despite the ADR.
H&C Applications
Pursuant to the Federal Court of Canada decision in Bawazir v. Canada (Citizenship and Immigration), 2019 FC 623 (“Bawazir“), the existence of an ADR should not negate the hardship analysis that officers conduct in humanitarian & compassionate applications. As Justice Norris noted:
One can certainly understand why Mr. Bawazir would like to secure his status in Canada by obtaining permanent residence here. In my view, a reasonable and fair-minded person would judge the requirement that he leave Canada and go to a war zone where a dire humanitarian crisis prevails so that he could apply for permanent residence as a misfortune potentially deserving of amelioration. The existence of the ADR demonstrates that Canada views the conditions in Yemen as a result of the civil war to “pose a generalized risk to the entire civilian population.” The conditions are so dire there that, with a few exceptions, Canada will not remove nationals to that country. Applying the usual requirements of the law in such circumstances clearly engages the equitable underlying purpose of section 25(1) of the IRPA (cf. Lauture v Canada (Citizenship and Immigration), 2015 FC 336 at para 43) yet the officer finds that the conditions prevailing in Yemen and the “extreme hardship” Mr. Bawazir would face there deserve “little weight” in the analysis. This was because Mr. Bawazir is not facing the threat of imminent, involuntary removal. However, the officer did not consider that Mr. Bawazir has no choice but to leave Canada for Yemen if he wishes to apply for permanent residence unless an exception is made for him. The officer erred in effectively dismissing a factor which is clearly relevant to the equitable underlying purpose of section 25(1) of the IRPA.
In Elbeibas v. Canada (Immigration, Refugees and Citizenship), 2022 FC 468, Justice Brown affirmed Bawazir, stating:
In my view, Bawazir applies with the same force in the case at bar because in the case at bar the existence of the ADR was not considered at all. Adopting what Justice Norris held, the Officer did not consider the Applicant has no choice but to leave Canada for Libya if he wishes to apply for permanent residence unless an exception is made for him under section 25. The Officer erred in dismissing a factor clearly relevant to the underlying purposes of section 25.
I also note Justice Roussel held in Khaled Nazem El Husseini v Canada (Minister of Citizenship and Immigration), 2016 FC 106 that the IAD’s failure to assess the applicant’s alleged particular circumstances of hardship constitutes a reviewable error. This case involved Syria in respect of which an ADR was (and is) in place:
[14] In my view, the IAD had the obligation to consider the potential hardship that would be faced by the Applicant if removed to Syria despite the presence of an administrative deferral of removals to Syria. The case law has clearly established that the mere presence of a temporary suspension of removals does not mean that an application on H&C considerations will automatically lead to a particular outcome, whether positive or negative (Alcin v Canada (Citizenship and Immigration), 2013 FC 1242 at para 55; Likale v Canada (Citizenship and Immigration) 2015 FC 43 at par 40). Given the similar nature of an administrative deferral of removals and a temporary suspension of removals, it is my view that the same principle can be applied to this case and that the IAD’s failure to assess the Applicant’s alleged particular circumstances of hardship constitutes a reviewable error. In testimony, the Applicant stated that he has not lived in Syria and that there is no one in his immediate family still residing in Egypt. He also described the situation in Syria and indicated that there is no place for him to live and no chance of finding employment in his field of expertise. All of his relatives have fled Syria and with respect to the family homes in Syria, one house was levelled by bombing and the other is occupied by other Syrian families (CTR at 1007, 1008). Throughout the Applicant’s testimony on this issue, both the IAD and the Minister’s counsel repeatedly stated that it was not necessary to go into details regarding the situation in Syria because of the existence of the stay. Counsel for the Applicant had to insist with the IAD that the Applicant wanted to speak of his personal situation of foreign hardship for the purpose of establishing that he had sufficient H&C considerations to warrant remaining in Canada. In the absence of any analysis by the IAD regarding the Applicant’s personal circumstances of hardship, it is not possible to determine whether the IAD fettered its discretion by unduly relying on the existence of the administrative deferral of removals to Syria in denying the Applicant his request for H&C considerations.
[Emphasis added]
I come to the same conclusion in this case where the Officer appears to have either ignored or erroneously relied on the existence of an ADR to Libya in denying the Applicant his request for H&C consideration. I appreciate officers need not deal with every issue submitted, but mindful of these three binding authorities and the fact that ADRs are Government decisions that directly relate to dire hardship, I find the Officeer’s failure to consider ADR constituted reviewable error.