Madam Justice Sadrehashemi granted a stay of removal in Goitom v. Canada (Citizenship and Immigration), 2024 CanLII 126597 (FC) for a family whose status was vacated after it was discovered they had hidden their status in Sweden while claiming protection against Eritrea. Following the status revocation, their H&C application was refused, leading to removal proceedings. The family requested a deferral of removal, arguing that disrupting the children's education mid-school year would cause significant harm. The removal officer denied the request, refusing to exercise discretion, which the Court found problematic.
The Court emphasized two critical issues:
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Scope of Discretion and Children's Education: The Federal Court clarified that removal officers must consider the short-term best interests of children (obviously if it is raised and supported by evidence), such as completing a school year, even if not required to conduct a full "best interests of the child" assessment (Lewis v Canada, 2017 FCA 130). Here, the officer failed to acknowledge or perhaps did not even realize that educational disruption could justify a deferral.
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Doctrine of Clean Hands: The government argued the applicants were precluded from relief due to their prior deception regarding Swedish citizenship. The Court reaffirmed (and cited a FCA decision) that "clean hands" is an equitable doctrine applied only when misconduct directly relates to the subject matter of the claim. Justice Sadrehashemi found no misconduct connected to the removal proceedings and noted that the children, who had no role in the past deception, were the focus of the irreparable harm argument.
Ultimately, the Court granted the stay, finding the balance of convenience favored the applicants due to the serious issue of the children’s educational disruption and their lack of culpability in the parents’ actions. The decision underscores the importance of considering children's short-term interests and the limited applicability of the clean hands doctrine in stay applications.
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