It is problematic to predict how a court will react to an appeal to its discretion. In judicial review of immigration decisions in Canada, unfortunately, there is no concept of ex debito justitiae, that is, there is no entitlement as of right to a remedy. There is only one method to obtain judicial review in the immigration context, and that is by way of application for leave and judicial review from a decision by a tribunal or officer of the Immigration and Refugee Board. The Court’s decision to grant or deny the application controls access to the judicial process, but the decision takes place in a judicial black hole with no requirement for reasons on the court and no possibility of an appeal from the discretionary decision to dismiss the application for leave and judicial review. An application for a stay, however does disclose clear principles that are to guide the court, and in this context, the “particular factual configuration” is crucial as there is an application of a legal test to the specific facts before the court.
The common grounds for a court to refuse to intervene –to the extent of refusing to correct possible administrative illegality -- are the following:
- Existence of alternative recourse;
- Delay and mootness
- Lack of practical utility;
- Misconduct of the applicant
- Balance of convenience or the public interest
I propose to illustrate some of the grounds for refusal of the Federal Court to exercise discretion by the use of an immigration example: interlocutory relief in the form of a ‘stay’ application.
Application for Leave and Judicial Review
In my practice, which involves hearings before the Immigration and Refugee Board and consequently applications for leave and judicial review to the Federal Court of Canada, it has been my experience that there are no defined or articulated grounds that allow prescience as to whether judicial discretion will be exercised or not.
As opposed to other areas of administrative law, immigration matters raise the issue of discretion prior to consideration of the merits. This requirement is contained within section 72(1) of the Immigration and Refugee Protection Act S.C. 2001, c. 27. Section 18.1 of the Federal Courts Act, R.S. 1985, c. F-7 require the Applicant to file an application for leave for judicial review. Leave is to be granted ostensibly where the application discloses a fairly arguable case (Krishnapillai v. Canada (CA)  3 FC 74).
However, there is no “clear, consistent and defensible principles” as proposed by Lewis in Judicial Remedies in Public Law (citation omitted, see Casebook, p. 1257) other than the generalized requirement of a “fairly arguable case” found in Krishnapillai.
Further, there is no appeal from a decision by the Federal Court denying the application for leave and judicial review. Nor is there a requirement that the court provide any reasons whatsoever for dismissing the application. This judicial black hole is a clear repudiation to the arguments asserted by Canes in the English context (see An Introduction to Administrative Law, citation omitted, see Casebook, p. 1257):
“It is certainly essential that the grounds on which discretion to refuse relief can be exercised should be spelled out as clearly as possible, and that those grounds should be supportable by rational argument. The courts will always wish to retain a residual and undefined discretion to deal with unexpected cases but the scope for its operation must be kept as narrow as possible.”
Interlocutory Relief in the Immigration Context
The procedure of obtaining a stay in the immigration context does reveal some of the variables that a court will consider in an appeal to its discretion. The stay is a interlocutory relief to prevent further processing of or action on the applicant’s removal from Canada until such time as the merits of an underlying application for judicial review can be dealt with (such as an application for permanent residency pursuant to s. 25 of the Immigration and Refugee Protection Act on humanitarian and compassionate considerations). The test for a stay is a tripartite test established in Toth v. Canada (Minister of Employment & Immigration) (F.C.A.)  F.C.J. No. 587 namely:
- The existence of a serious issue;
- The existence of irreparable harm to the Applicant if no Order is granted; and
- The balance of convenience considering the total situation of both parties favours the granting of the Order.
The applicant must satisfy (on a balance of probabilities) all three branches of the test before the court will grant a stay of proceedings. The stay is an “extraordinary” remedy where the application must warrant “exceptional judicial intervention”. As a result, the motives and conduct of the applicant will impact on the courts decision to exercise discretion in his or her favor.
It can be said that the requirement of an “existence of a serious issue” (requiring a low threshold to establish) is likely in place to conserve scarce judicial resources from expenditure on non-meritorious applications:
Among the interests at stake is that of ensuring the integrity of the judicial process by not subjecting its scarce resources to proceedings that are hypothetical, no longer of significance, or would serve no useful purpose. (Text, p. 482).
The requirement of irreparable harm (such harm not being compensable in damages) is related to another ground to control access to judicial discretion: the availability of alternative grounds of relief (damages).
One potential argument against an applicant asserting a judicial review and stay application is his or her prior conduct. Remedies on judicial review are discretionary. As the Supreme Court stated in Homex Realty  2 SCR 1011,
“The principles upon certiorari, and now the modern order in judicial review, have been issued have long included the principle of disentitlement where a Court, because of the conduct of the applicant, will decline the grant of the discretionary remedy.”
Principles of equity have also taken hold at the Federal Court when it deals with an immigration stay application. In essence, when an applicant has shown a disregard of Canada’s immigration laws so as to ‘not come before the court with clean hands’, the court has held that an applicant should not be allowed to access equitable relief.
In terms of the articulated third branch of the test, the court must weigh whether, in regard to the parties opposing interests, balance of convenience favours the exercise of discretion. In this context, the consequences of not granting the order to the applicant is weighed against the administrative convenience and integrity of the impugned process (the removal proceeding). For example, the court is to consider the public interest (in the enforcement of valid law(s)) against the prejudice to the applicant (or his family) in leaving Canada.
The applicant is required to demonstrate the existence of all three elements of the conjunctive test. The court will determine this on the facts and whether the facts meet the threshold outlined by the available jurisprudence. At the same time, the applicant must avoid disqualification by way of misconduct (which is also established by whether the particular facts meet the relevant criteria for misconduct). Indeed, the available jurisprudence on stay applications indicates that such determinations are highly fact-specific. As a result (in an immigration stay application) it is clear that the ‘particular factual configuration’ is essential to determine whether discretionary relief will be granted.