Camino Stops Deportation: the case of Afanador Peña v Canada
On January 14, 2025, the Federal Court of Canada issued a stay of the deportation of the Applicant in the decision of Afanador Peña v Canada, 2025 CanLII 908. To read the decision, follow this link.
A stay order is when the Court orders the Canada Border Services Agency (“CBSA”) to stop a scheduled deportation. In the case of Afanador Peña, the applicant was a failed refugee claimant who had been misled by his previous representative, an immigration consultant who gave misleading information to the Immigration and Refugee Board.
This successful win at the Federal Court was accomplished through the professional efforts of the team of Camino Law Group.
In this article, we will discuss the following:
How a stay can be obtained, and when it is necessary to obtain one;
The Federal Court’s analysis in the Afanador Peña decision;
How to avoid fraud by immigration consultants or fake consultants.
At the end of this article we also list some important lessons from the Afanador Peña decision.
How to obtain a stay and when it is necessary
How it starts
A stay of deportation is a judicial process obtained through the Federal Court of Canada, and it becomes necessary when the foreign national is issued an itinerary with a scheduled departure. This itinerary comes in the form of a letter from the CBSA, and we normally refer to it as the Itinerary Letter.
Itinerary letters are issued when the CBSA is ready to remove the foreign national and there is a valid deportation order. The deportation order can be issued for a number of reasons, of which I list a few below:
The deportation order is activated after a person loses their refugee claim and they have not started a process of appeal or in federal court within the statutory deadlines.
The foreign national or permanent resident lost their status in Canada due to criminal or other inadmissibility, and the Immigration and Refugee Board (“IRB”) issued the order.
The foreign national lost their immigration status because they overstayed their legal status.
Once the foreign national has received the itinerary letter, there is normally very little time to act and complete the process to stop the deportation. The person likely has a month or less. This process should only be handled by a lawyer. Thus, anyone facing a scheduled deportation should contact an immigration lawyer without delay.
What needs to be done
A stay of a deportation is obtained through a motion. A motion is an interlocutory application, meaning that it is a special request made to the court in the context of a larger legal proceeding.
In the context of stays of deportation, this motion is done after starting an application for leave and judicial review (“ALJR”). It is necessary to start an ALJR in order to be able to do a stay motion.
An ALJR is like an appeal, but legally speaking it involves an assessment by the court that is different from what an appeal tribunal would do. But for now, it is best to understand it as a type of appeal that is done in Federal Court.
The purpose of the ALJR is to ask the Federal Court to determine that a decision made by Immigration or the IRB was done unreasonably or in violation of procedural fairness. The goal in an ALJR is to get the Federal Court to send the negative decision back to the tribunal or decision maker to reevaluate.
A person can apply for an ALJR in any of the following situations:
After the Refugee Appeal Division denies the appeal of a negative refugee claim decision.
When IRCC rejects an application for pre-removal risk assessment (“PRRA”).
When the Immigration Appeal Division denies your appeal in a spousal sponsorship application.
There are many other situations, and the above are just some of the common examples. An ALJR needs to start 15 days after the date the negative decision was sent, if it is an application done inside of Canada. If the application was done outside of Canada, the ALJR has to be started within 60 days. This is what is known as statutory time limits.
When a person starts an ALJR within the statutory time limits, and that person is inside Canada, then the CBSA will normally not try to remove the person. This will depend on the situation and the application involved, so it is always best to speak with a lawyer. However, when the person misses the statutory time limit, the CBSA will try to start removal, and that is when the person may receive an itinerary letter.
Therefore, when a person receives the itinerary letter, they need to inform the lawyer whether they had a decision on an application denied recently. That will help determine if there is a possibility to start with an ALJR and then file a stay motion.
Here is a common example we see in Camino:
A person applies for refugee protection.
The person goes to the hearing, but unfortunately the Refugee Protection Division rejected the claim.
The person then applies for an appeal at the Refugee Appeal Division, but unfortunately the appeal was also rejected.
After the rejection of the appeal, the person had 15 days to start the ALJR, but they did not know, so they missed the deadline.
After a few months, the CBSA contacted the person and called them for a meeting. At the meeting he was told the deportation order was activated, and they schedule him for a removal. The person received an itinerary letter.
In this example, the person now needs to go to a lawyer, explain that the refugee appeal was refused and the reason why they did not make the ALJR in time. The lawyer can file an ALJR on the basis that the decision of the appeal was unreasonable or a breach of procedural fairness. After filing the ALJR, the lawyer then needs to file something called a stay motion along with the motion record, and the evidence to support the application for a stay. The lawyer also needs to communicate with the Department of Justice as fast as possible to try to coordinate a date for a hearing of the stay motion before the removal date.
Once that is done, the court may schedule a hearing for the stay motion. These hearings are normally done online or over the phone. It is important that all the steps needed before the hearing are done promptly, and that the court is given enough time. Delays in starting the motion to stay can result in the motion not being heard.
Stay motions are complex and require a lot of work in very little time. It is very important that the person and the lawyer act fast.
The decision of Afanador Peña v Canada
Background
In Afanador Peña, the Applicant had started an application for refugee protection. In doing so, he hired a person who posed as a lawyer but was in fact an immigration consultant. What is more, this consultant was not licensed to represent the refugee clients.
The consultant did various things that were not only questionable, but likely fraudulent. First, the consultant did not disclose to the Refugee Protection Division (“RPD”) she was representing the Applicant, yet she prepared all the materials for the hearing. Then, after the refugee claim was denied, this consultant went on the record as the counsel for the Applicant in the appeal, but told the RAD the Applicant had been unrepresented before the RPD. When the appeal was rejected, the consultant told the Applicant to make “an application on humanitarian and compassionate grounds, despite the fact that he was ineligible at the time to submit such an application.” (para. 4).
Because of the incompetence of the consultant and the bad advice she gave the Applicant, the Applicant missed the deadline to file the ALJR and the CBSA scheduled him for deportation. With the help of Camino Law Group, the Applicant started the ALJR even though it was late and filed the stay motion.
Analysis by the Court
When someone makes a stay motion, they need to show to the court three things:
That there is a serious issue to be tried;
That the removal from Canada will cause irreparable harm; and
That the balance of convenience favours the Applicant.
The first part, serious issue to be tried, means that there is an arguable case for the ALJR. In other words, the Applicant needs to show the ALJR has some merit and could be in the applicant’s favour.
The second part of the test is what we call irreparable harm. In the context of a motion to stay, irreparable harm means more than the hardship of leaving the country. An applicant must show a harm such as mental or physical hardship from medical conditions, disruption of a child’s wellbeing, or something else beyond the harm inherent in deportation.
The third part of the test, called balance of convenience, is essentially showing that preference should be given to the applicant’s circumstances over the Minister’s duty to enforce removal orders.
In the case of Afanador Peña, the main argument was the unfairness created by the incompetence and illegal intervention of the consultant. This is known as a breach of procedural fairness. When a fake or incompetent consultant causes the person to lose their refugee claim, they can argue that they were deprived of a fair hearing. This is known in law as the “inadequate counsel” argument.
The Court found the following:
Serious issue to be tried: At para. 10: “… the potentially fraudulent representation provided to the Applicant by his former representative raises a serious issue with respect to the fairness of the IRB proceedings…”
Irreparable harm: At para. 14: “I am satisfied that the seriousness of the Applicant’s allegations, when combined with concerns as to whether his right to be heard was properly observed…” constitutes irreparable harm according to the law.
Balance of convenience: the court held at paras. 15 that the duty to enforce a removal did not trump the Applicant’s right to a fair hearing and to have his ALJR heard.
Another aspect of the Afanador Peña case is that the Applicant also submitted an application to the Refugee Appeal Division requesting a reopening of the appeal. This is possible when there has been a serious violation of procedural fairness, such as when a refugee claimant was defrauded by a fake or incompetent consultant. In the case of Afanador Peña, the Court considered the opportunity to have the appeal reopened weighed in favor of granting the stay.
Lessons
We can draw several lessons from the decision of Afanador Peña, especially lessons for newcomers who may be facing deportation.
First, a deportation or itinerary letter is cause for concern, but it does not always mean all hope is lost. There are legal remedies and tools that could benefit someone facing deportation. However, the person must act quickly and hire a lawyer without delay.
Second, it is best to avoid being in this situation. The complexity and urgency of stay motions make them expensive and uncertain. There is no guarantee the court will stop the deportation. To avoid being in this situation, it is important to hire the correct person at the beginning of your immigration proceedings. We provide some tips below.
Third, when a fake or incompetent consultant causes the person to lose their case, that may be a good ground to go to the Federal Court for an ALJR. You still need to prove their incompetence, and to show that it was their incompetence that caused the loss.
Avoiding fraud
Immigration around the world is becoming more and more complex, at the same time that conflict, economic hardship, political oppression and climate change cause mass migrations around the world, making immigration to a country like Canada even more appealing. However, fake and incompetent consultants know this, and they aim to take advantage of people seeking a better life.
To avoid being defrauded, always ask for the following information from the person who is charging you money to represent you:
Name: Their full name;
Office: The address of their office;
Website: The website of their company;
License: Proof that they are a licensed lawyer or immigration consultant;
Contract: A written contract;
Invoices.
If you are a refugee claimant, you do not need to hire an immigration consultant. Legal Aid Alberta may help you pay for a lawyer, and it is often less expensive and easier to pay than the fees of an immigration consultant.
If you hire an immigration consultant, make sure they are registered with the College of Immigration and Citizenship Consultants (“CICC”). This is the link: RCIC Search. Ask for their full name and RCIC number.
If the person you are hiring says they are a lawyer, ask them:
a. What province are they registered with;
b. Full name and address of their practice.
You can search if they are licensed in Alberta here: Law Society of Alberta
A person who is a lawyer in another country cannot say they are a lawyer in Canada. That is against the law.