Who Can Be Sponsored

One of the questions that we are most frequently asked is which family members can be sponsored under Canada’s family reunification programs.  Most people rightly assume that Canadian citizens and/or permanent residents can sponsor their spouses, children, and parents.  However, many also wonder about sponsoring siblings, cousins, nieces, nephews, etc.

Canada’s Immigration and Refugee Protection Regulations, SOR/2002-227 (“IRPR“), provide that a Canadian citizen / permanent resident (the “Sponsor“) may sponsor the Sponsor’s spouse, common-law partner or conjugal partner.  A “spouse” is the Sponsor’s husband or wife.  A “common-law partner” is someone who the Sponsor has cohabited with in a conjugal relationship for a period of at least one year. A “conjugal partner” is someone who the Sponsor has been in a conjugal relationship with for a period of at least one year, but who for exceptional circumstances the Sponsor has neither been able to marry nor cohabit with.  It most commonly applies to same-sex relationships where the couple is unable to cohabit or marry due to fear of persecution or penal control.

IRPR also provides that a Sponsor may sponsor the Sponsor’s dependent child.  A “dependent child” is a child who is the biological or adopted child of the Sponsor, and who is under the age of 19 and is not married or in a common-law partnership.  If the child is over 19, then the child must have depended substantially on the financial support of the parent since before the age of 19, and be unable to be financially self-supporting due to a physical or mental condition.

A Sponsor may also sponsor his/her mother, father, grandfather, or grandmother.

While the above three scenarios are commonly well known, there are other family relationships that are eligible for sponsorship.

Continue reading “Who Can Be Sponsored”


A37 – Inadmissibility for Organized Crime

Section 37of the Immigration and Refugee Protection Act (the “IRPA“) provides that a permanent resident or foreign national is inadmissible to Canada for organized criminality.  It states:

37. (1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for

(a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern; or

(b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or laundering of money or other proceeds of crime.

Application

(2) Paragraph (1)(a) does not lead to a determination of inadmissibility by reason only of the fact that the permanent resident or foreign national entered Canada with the assistance of a person who is involved in organized criminal activity.

Immigration, Refugees and Citizenship Canada in 2010 created a useful internal document summarizing the jurisprudence on the interpretation of this section, and I have reproduced it below.

Please note that what I have reproduced below should not be viewed as legal advice.  I obtained a copy of this internal Citizenship and Immigration Canada training guide through an Access to Information Act request (the “ATI”).  The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.  (I have decided not to reproduce the names of the Service Canada officers involved.) Please e-mail me if you want a copy of the original question and answer contained in the ATI.

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B010 v. Canada (Citizenship and Immigration)

In 2015, the Supreme Court of Canada (the “Supreme Court“) rendered its decision in B010 v. Canada (Citizenship and Immigration), [2015] 3 SCR 704, 2015 SCC 58. There, the Supreme Court ruled that:

The wording of s. 37(1)(b), its statutory and international contexts, and external indications of the intention of Parliament all lead to the conclusion that this provision targets procuring illegal entry in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational organized crime. To justify a finding of inadmissibility against the appellants on the grounds of people smuggling under s. 37(1)(b), the Ministers must establish before the Board that the appellants are people smugglers in this sense. The appellants can escape inadmissibility under s. 37(1)(b) if they merely aided in the illegal entry of other refugees or asylum-seekers in the course of their collective flight to safety.

In other words, the transnational crime provisions now in the smuggling context only apply to people who act to further illegal entry of asylum seekers in order to obtain, directly or indirectly a financial or other material benefit in the context of transnational organized crime.

Saif v. Canada (Citizenship and Immigration)

In light of the Supreme Court of Canada’s decision in B010, the Federal Court of Canada has narrowed what constitutes organized crime for the purpose of inadmissibility under s. 37 of IRPA. In Saif v. Canada (Citizenship and Immigration), 2016 FC 437, the Federal Court, citing B010, ruled that the definition of “criminal organization” in Canada’s Criminal Code should be imported into the analysis of what constitutes “organized criminality” for the purpose of IRPA s. 37 inadmissibility.  The Criminal Code defines “criminal organization” as:

“criminal organization” means a group, however organized, that

(a) is composed of three or more persons in or outside Canada; and

(b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.

It does not include a group of persons that forms randomly for the immediate commission of a single offence.

As such, to constitute organized criminality, the organization needs to have three or more persons. As well, the Federal Court in Saif held that organized criminality requires the existence of common organizational characteristics such as “identity, leadership, a loose hierarchy and a basic organizational structure.” As well, the Court stated that:

Third parties who individually transact with a criminal organization cannot reasonably be seen to be “members” nor can they be considered to be “engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an indictable offence”. By way of analogy, no one would consider a purchaser of narcotics, without further involvement, to be either a member of, or acting in concert with, a criminal organization established to sell the narcotics, even though both are engaged in common in a criminal transaction.


Five Reasons IRCC Rejects Express Entry Applications

Since January 1, 2015, almost all prospective economic immigrants to Canada must apply through Express Entry.  Express Entry is an application intake management system in which Immigration, Refugees and Citizenship Canada (“IRCC”) controls immigration application intake by requiring applicants be issued an invitations to apply for permanent residency (“ITAs” before they can actually submit their applications.  The purpose of Express Entry is to minimize processing times. Indeed, when Express Entry was launched IRCC guaranteed that it would be able to process permanent residence applications within six months.

On March 31, 2016, IRCC released its Express Entry Year-End Report 2015 (the “Express Entry Report”).  The Express Entry Report shows that IRCC in 2015 met its six-month processing goal.  However, the Express Entry Report also revealed that IRCC has been bouncing (or rejecting, as IRCC likes to describe it) many Express Entry applications due to incompleteness.

Prior to the introduction of Express Entry, while a bounced permanent residence application was frustrating for applicants, they could for the most part easily simply re-submit their applications.  However, with Express Entry there is no guarantee that an individual whose permanent residence application is rejected for incompleteness will be issued another Invitation to Apply. As such, until IRCC adopts a more flexible approach to handling technical deficiencies in applications, it is imperative that applicants check and double-check that their permanent residence applications meet all IRCC requirements.

The Express Entry Report and Application Bouncing

The Express Entry Report shows that IRCC was able to process most Express Entry applications in under six months. Specifically, for Federal Skilled Worker Program applicants the processing standard was 4.7 months, for Canadian Experience Class applicants it was 3.5 months, for Federal Skilled Trades Class applicants it was 4.9 months, and for Provincial / Territorial Nominees it was 3.8 months. There is no doubt that these are phenomenally fast processing standards.

The Express Entry Report also stated that IRCC in 2015 made decisions on 22,178 permanent residence applications submitted through Express Entry.  IRCC approved 14,058 applications, and refused 2,433.  Although the Express Entry Report does not specify how many applications were bounced for incompleteness, a quick mathematical calculation shows that it is 5,687.  In other words, IRCC rejected for incompleteness a whopping 25.6% of permanent residence application submitted through Express Entry.

This high figure would not be surprising to anyone who reads the frustrating stories from bounced applicants on online Canadian immigration web forums.  The internet is filled with stories of bounced applicants lamenting that IRCC bounced their applications for seemingly minor reasons. Many are further exasperated that their Labour Market Impact Assessments or provincial nomination certificates are now also expired, which could jeopardize their ability to be issued another ITA, and to immigrate to Canada.

Five Reasons IRCC Bounces Express Entry Applications

Until IRCC adopts a more flexible approach in how it handles incomplete applications, it is imperative that applicants ensure that they meet ALL the requirements on their personalized Express Entry document checklists. There are many reasons why applications may be incomplete, and from what I can tell here are five of the more common ones unique to Express Entry.

First, until recently IRCC required that permanent residence applicants provide police certificates from all countries that they have lived in consecutively for more than six months since turning eighteen.  IRCC has now changed this requirement so that applicants have to provide police certificates for everywhere that they have lived for six months or more. If someone visited a country for two months, left for a few years, and then returned for four months on another visit, they now have to provide a police certificate for that country.  Because IRCC in its personalized Express Entry document checklists does not specify which countries applicants need to get police certificates from (the checklists only say “multiple police certificates”) many applicants are unaware of this change, and what is required.

The second common reason that IRCC bounces applications also involves police certificates.  It is impossible to obtain police certificates from certain countries during the sixty-day window that Express Entry applicants have to submit their applications. When this occurs, IRCC requires that applicants provide proof that they requested a police certificate from the country, and that they provide explanations of best efforts which show that they requested the police certificates as soon as possible after receiving their ITAs. If an applicant does only one of these things, and not both, then IRCC will bounce their application for incompleteness.

Third, it is imperative that Express Entry applicants constantly monitor their MyCIC accounts to ensure that they do not miss any deadlines.  IRCC often requires that applicants provide new forms and documents within seven days of a request, and these short deadlines are frequently missed.

Fourth, for whatever reasons the Express Entry portal does not let applicants view what they upload. Applicants should accordingly ensure that they are uploading the correct PDFs. The best practice that I have seen, and use, is to have a separate folder for each document type, and to ensure that when a document is being uploaded it is the only document in the folder. For example, applicants should create a folder titled “PASSPORT” and ensure that there is only one PDF in that folder when they go to upload.

Finally, while there are some exceptions to providing every single documents required in the Express Entry checklist, unless an applicant is 100% sure that they qualify for an exception they should provide all the requested documents.  It is surprisingly how many people don’t provide documents that are requested simply because someone in an anonymous forum said that they didn’t upload it and their application was nonetheless approved.

Time for a New Approach

Given the immense criticism that IRCC receives whenever its processing times exceed what people subjectively determine is reasonable, it is not surprising that the department is focused on fast processing times.  However, it is also becoming clear that this prioritizing of processing standards may be detracting from procedural fairness. There have been hints of this before. Indeed, as shown in the 2012 partial reproduction of an internal e-mail between two IRCC Directors below, at one point there was even discussion about bulk refusing Canadian Experience Class applications in order to reduce the overall processing times. Capture

To be clear, there is nothing to suggest that IRCC ever actually bulk refused these applications.  However, the fact that it was even discussed as a possibility reveals a mentality of speed trumping procedural fairness.

As of writing the Federal Court of Canada has not yet issued a reported decision regarding the procedural fairness of IRCC’s rigidness in how it processes Express Entry applications.  However, in the Family Class context, the Federal Court in Balasundaram v. Canada has offered some hope.  There, Justice Annis held that “obvious slips and omissions” cannot automatically be fatal to immigration applications. He went on to write that “the failure to include an attachment to an email raises the expectation that the addressee will advise the sender of his or her error.” As Express Entry is essentially an online system with attachments, it is foreseeable that the Court would extend this principle to Express Entry.

Conclusion

IRCC is fond of boasting that they have met their six month Express Entry processing standard.  Considering that 40% of Express Entry applications were either bounced for incompleteness or refused this is not as impressive as it sounds.  Indeed, I don’t think anyone would complain increasing the processing standard from six months to seven meant that IRCC would provide applicants with the opportunity to provide documents that were accidently not uploaded.



Express Entry Imm Rep Q&A

The following PDFs contain several Express Entry Q&As that were obtained through an Access to Information Act request.

The topics include what documentation is required in an Express Entry application, enclosing rehabilitation applications with Express Entry, what counts as a ‘certificate of qualification’, points for skills transferability, and qualifying arranged employment.

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Providing a Right of Appeal to Medically Inadmissible Immigrants

On December 3, 2015, Don Davies, the member of Parliament for Vancouver Kingsway, introduced Bill C-214, An Act to Amend the Immigration and Refugee Protection Act (Appeals) (Bill C-214).  If passed, Bill C-214 would provide a right of appeal to the Immigration Appeal Division (IAD) for prospective immigrants whose applications for permanent residency are refused because Immigration, Refugees and Citizenship Canada (IRCC) determines that they will likely represent an excessive demand on Canada’s health and social services systems.

Because Bill C-214 is a private member’s bill, it is unlikely to become law.  Indeed, Davies has introduced similar bills in previous Parliamentary sessions, to no effect.  However, what he is proposing is certainly worthy of discussion and debate.  I hope that if he reads this post that he will consider my comments, if he ever reintroduces or amends his proposed legislation.  As well, at the end of this article I will discuss another immigration issue that Davies has proposed that I hope he reintroduces soon.

Inadmissibility for Excessive Demand

Canada’s Immigration and Refugee Protection Act provides that foreign nationals are inadmissible to Canada on health grounds if their health conditions might reasonably be expected to cause an excessive demand on Canada’s health or social services.

Health services are any medical services for which the majority of funds are contributed by governments, including the services of family physicians, medical specialists, chiropractors and hospital care.

Social services include home care, residential services, social and vocational rehabilitation services that are intended to assist a person function physically, emotionally, socially, psychologically, or vocationally, and for which the majority of funding is contributed by governments.  It includes special needs education for children.

An excessive demand on health or social services that results in a person being inadmissible to Canada occurs when  the anticipated health and social services costs of that person during the first five (although in some cases it is ten) years  after the person immigrates to Canada would likely exceed the average Canadian per capita costs.  In 2015, the threshold was $6,387 per year.

In the permanent resident context, a family member’s inadmissibility for excessive demand will result in an entire family’s immigration application being denied.  It does not matter if that family member will actually be accompanying the family to Canada.  The reason for this somewhat harsh rule is that foreign nationals who are being sponsored by Canadian family members are exempt from the excessive demand inadmissibility provisions.  It would thus be easy for immigrants to circumvent excessive demand inadmissibility if during the immigration process a family could simply exclude a medically inadmissible family member from the family’s immigration, and then sponsor the excluded family member immediately after immigrating.

IRCC can sometimes be extremely blunt in refusing applications for medical inadmissibility.  In 2014, for example, our office was retained to seek judicial intervention where a refusal letter stated:

Pursuant to subsection 38(1) of the Immigration and Refugee Protection Act, your family member [name withheld], is a person whose health condition of mental retardation might reasonably be expected to cause excessive demand on health or social services.. As a result, your family member is inadmissible to Canada on health grounds.

Subsection 42(a) of the Act states that a foreign national, other than a protected person, is inadmissible on grounds of being an inadmissible family member if their accompanying family member or, in prescribed circumstances, their nonaccompanying family member, is inadmissible. Your accompanying family member is inadmissible to Canada. Consequently, you are also inadmissible.

As a result of the Supreme Court of Canada’s decision in Hilewitz v. Canada (Minister of Citizenship and Immigration), IRCC must provide potential immigrants with advance notice of any concerns about a potential medical inadmissibility after the immigrants undergo their mandatory immigration medical examination, and it must provide applicants with the opportunity to respond.  To provide an example, in the case that I mentioned above, IRCC’s procedural fairness letter stated:

Your family member [name withheld], has the following medical condition or diagnosis: Severe Mental Retardation. In the opinion of the Medical Officer: This applicant born on April 19, 2008 was diagnosed with severe mental retardation. Recent assessment indicated a mean developmental age of 8.75 months and a developmental quotient of 22. There is gross delay in her motor development as well as language development. She has received no adequate special schooling or home training so far. She is deemed totally dependent in all her activities of daily living.  She requires special training including special education and speech therapy for the coming years.

This applicant’s medical condition is ongoing. She requires intervention services and special education services, which are expensive. Based upon my review of the results of this medical examination and all the reports I have received with respect to this applicant’s health condition, I conclude that she has a health condition that might reasonably be expected to cause excessive demand on social services. Specifically, this health condition might reasonably be expected to require services, the costs of which would likely exceed the average Canadian per capita costs over five years.

In consultation with the Health Management Branch of Citizenship and Immigration Canada, I have determined that the following social services would be required: early childhood education services in British Columbia, which range from $6,000 to $24,000;  special education, which from grade 1 onward costs $16,000 or more; family support for children with disability, which, based on information from the provincial and territorial funding programs for children with mental retardation, is $40,000 per year per child in British Columbia.

Before I make a final decision, a person has the opportunity to submit additional information that addresses any or all of the following:

  • The medical condition(s) identified
  • Social services required in Canada for the period indicated above
  • His or her individualized plan to ensure that no excessive demand will be imposed on Canadian social services for the entire period indicated above and their signed Declaration of Ability and Intent.

They must provide any additional information within 60 days of this letter.

Responding to such letters within such a short time period is a daunting and challenging task.  Immigration applicants are expected to obtain independent medical advice, familiarize themselves with the health and social services available in a province, and determine what alternatives to public services exist.  This can be difficult for someone who lives in Canada.  It can be almost impossible for someone who lives half-way across the world, and IRCC frequently refuses immigration applications when it determines that an applicant’s Declaration of Ability and Intent is vague or insufficient.

What is especially galling for many applicants is their belief that if they could only speak to an IRCC officer in person they could satisfy the Canadian government that they or their family member will not be a burden on Canada, and/or of why there may be sufficient humanitarian and compassionate grounds to overcome the inadmissibility.  However, Canada’s permanent resident visa application process is currently almost exclusively paper-based, and unless applicants are being sponsored by a Canadian family member, refused visa applicants do not have the right to an in-person appeal.

Mr. Davies hopes to change this.

The Immigration Appeal Division and Judicial Review

Currently, the only recourse for permanent resident applicants who are refused for excessive demand is to file applications for leave to commence judicial review in the Federal Court of Canada.  This process can take as little time as a few weeks if IRCC immediately recognizes that it made an unreasonable or procedurally unfair decision, or as long as several months to almost a year if a full hearing before a judge is required to determine the outcome.  Applicants cannot raise new evidence during the judicial review, nor can they participate in the hearing, where, essentially, two lawyers discuss before a judge as to whether IRCC erred.

An appeal to the IAD would be very different. The IAD is a hearing de novo, which means that appellants can introduce new evidence to the IAD that they did not previously provide to IRCC. As well, appellants can argue their case at a hearing in person or via teleconference.  They can also call witnesses.  In addition to determining whether IRCC was factually or legally incorrect in refusing an application, the IAD can rule that notwithstanding the inadmissibility, there are sufficient humanitarian and compassionate grounds to override the inadmissibility. If the IAD allows the appeal, the matter is referred back to IRCC for continued processing.  The visa office is then prohibited from overruling the IAD on the matter that was appealed.  In the context that Davies’ legislation addresses, IRCC would be prohibited from again refusing the application due to a person’s inadmissibility for excessive demand.  The entire process typically takes several months to almost two years.

Issues with Providing a Right of Appeal to the IAD

When Mr. Davies introduced Bill C-214 he stated in the House of Commons that “the principles of justice include a substantive right to appeal” and that “people who are seeking to obtain permanent residence in this country often have their decisions decided in a very impersonal administrative manner, with no real right of appeal.”

This is certainly true. There would obviously be many refused applicants, perhaps most of them, who would benefit from being able to go to the IAD if their application was refused.

However, there are two aspects of the IAD process that should give Davies pause, and he should consider amending his legislation if his aim is for all visa applicants to benefit from his proposed changes.  First, he may wish to consider providing refused applicants with the option of either seeking judicial review or appealing to the IAD.  Section 72(2)(a) of the Immigration and Refugee Protection Act provides that a refused visa applicant cannot seek judicial review unless all administrative appeals have been exhausted.  Given how long it can take for the IAD to hear and decide appeals, if IRCC’s refusal was unreasonable (instead of simply being based on insufficient evidence), then the judicial review process would likely be much faster and more efficient. In the case our office handled that I described above, the refusal was set aside in a matter of weeks. If the matter had proceeded to the IAD, it would have likely taken at least one year.  Ironically, Bill C-214, if passed, would make the process much slower.

The second issue that Davies may want to address is the application of res judicata, which is the principal that a matter that has been decided by a competent court or administrative tribunal cannot be relitigated.  In the spousal sponsorship context, for example, it is sometimes advisable to not appeal, but simply reapply.  The reason is that if the IAD were to dismiss the appeal, then IRCC could in the future simply automatically refuse any applications on the basis of res judicata.    In the context of excessive demand, it is not difficult to envision the IAD dismissing an appeal for someone with a severe medical condition, and then IRCC refusing subsequent immigration applications by that person even if that person’s health improves, simply because of res judicata.   While res judicata is a complicated legal principal that has numerous rules and exceptions that are beyond the scope of this post, Davies should consider explicitly excluding the application of res judicata from his proposed appeal right.

The two issues above are essentially the same shortcomings I see with Davies proposal to allow refused temporary resident applicants access to the IAD.  For most of these individuals, the ability to immediately apply again or seek judicial review is more than sufficient recourse. The IAD process would be lengthy, and if the IAD were to dismiss the appeal then the application of res judicata could theoretically permanently prohibit a person from visiting Canada if they wished to apply in the future.

The Full Reasons for Refusal

In October 2015, I wrote an article for Policy Options predicting what the impact of various election outcomes would be on Canada’s immigration system.  In contemplating what an NDP government could mean, I wrote:

While in opposition, the NDP, and especially its British Columbia Member of Parliament Don Davies, has consistently criticized CIC’s practice of issuing minimal reasons in visa refusal letters. CIC got away with doing this under both the Liberals and the Conservatives, and if the NDP fulfilled its promise to require immigration officers to provide the full reasons for refusal, it would be a subtle, simple change that would dramatically increase the fairness of Canada’s immigration system.

Davies has not yet introduced such legislation in this Parliamentary session. I hope that he does so soon.

Final Thoughts

I would like make a final note on excessive demand inadmissibility.  Terence Corcoran recently published an article in the National Post lambasting inadmissibility for excessive demand.  His entire article is worth reading, and I particularly enjoyed these two paragraphs:

Not much logical room for Down syndrome in that rundown of good reasons for sending people back from whence they came. To get to the immigration rules related to Down syndrome, it is necessary to dig through to a sub-clause of a sub-clause of a clause in the immigration protection act. Under section 38(1)(c): “A foreign national is inadmissible on health grounds if their health condition…might reasonably be expected to cause excessive demand on health or social services.”

Only a welfare state blindly enamoured with its monopoly health-care system would find this to be a reasonable justification for ruling Felipe Montoya and his family inadmissible as permanent residents. What kind of bureaucratic regime is this that looks at a healthy and productive man, his beautiful wife and their daughter, and then turns to see 13-year-old Nico and says: “Oh. That’s not good. He has something wrong with him. Looks like Down syndrome. He is a 13-year-old functioning at a three-year-old level. Inadmissible!

It is safe to state that Davies and Corcoran are on opposite ends of the political spectrum.  Both clearly see a desperate need to reform this area of Canadian immigration law. Hopefully, as awareness spreads more voices join theirs.

At a minimum, no parent should receive a letter from the Government of Canada curtly stating that their immigration application is refused because their child has Down Syndrome, or, as they told my client, mental retardation.

 



Certified Questions After Kanthasamy

Section 74(d) of Canada’s Immigration and Refugee Protection Act provides that an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the Federal Court certifies that a serious question of general importance is involved and states the question.  Certified questions have traditionally resolved divergent jurisprudence at the Federal Court, and have typically provided certainty on how immigration law is to be interpreted.  However, as a result of recent Supreme Court of Canada decisions, this is changing.

In Agraira v. Canada (Public Safety and Emergency Preparedness)the Supreme Court of Canada applied the reasonableness standard to answer the following certified question:

When determining a ss. 34(2) application, must the Minister of Public Safety consider any specific factors in assessing whether a foreign national’s presence in Canada would be contrary to the national interest?

The decision to not provide a definite answer caused some confusion at the Federal Court of Appeal, which declared in Kanthasamy v. Canada (Citizenship and Immigration), 2014 FCA 113, that:

 A decision made under the Act is subject to judicial review only if leave is granted by the Federal Court (subsection 72(1) of the Act). The Federal Court’s decision on the judicial review cannot be appealed unless the Federal Court certifies a serious question of general importance (paragraph 74(d) of the Act). This case, like Agraira has proceeded to this Court on the basis of a certified question from the Federal Court. In this case, as in Agraira, the certified question asks a question that requires an interpretation of a provision of the Act.

This Court has consistently taken the view that where a certified question asks a question of statutory interpretation, this Court must provide the definitive interpretation without deferring to the administrative decision-maker. Then, this Court must assess whether there are grounds to set aside the outcome reached by the administrative decision-maker on the facts and the law….

Until Agraira, the Supreme Court approached immigration matters in the same way. The Supreme Court assessed whether this Court correctly answered the stated question on statutory interpretation. See e.g., Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57 (CanLII), [2005] 2 S.C.R. 706. Then it proceeded to assess, on the basis of the deferential reasonableness standard, whether there were grounds to set aside the outcome reached. On that part of the review, the Supreme Court has emphasized the need for “considerable deference [to] be accorded to immigration officers exercising the powers conferred by the legislation,” given “the fact-specific nature of the inquiry, [subsection 25(1)’s] role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language”: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at paragraph 62.

In Agraira, the Supreme Court conducted reasonableness review on the administrative decision-maker’s decision on the statutory interpretation issue, ignoring the fact that the case proceeded in this Court in response to a certified question from the Federal Court. It did not vet this Court’s answer to the stated question.

There is nothing in the Supreme Court’s reasons in Agraira to explain this apparent change in approach. For that reason, until some clarification from the Supreme Court is received, it is my view that this Court should continue to follow its practice of providing the definitive answer to a certified question on a point of statutory interpretation. In reaching that conclusion, I note that the Supreme Court in Agraira did not say or suggest that this Court’s practice was wrong.

In this Court, providing the definitive answer to a certified question on a point of statutory interpretation is the functional equivalent of engaging in correctness review. But this is merely an artefact of having a certified question put to us. It is not a comment on the standard of review of Ministers’ interpretations of statutory provisions generally .

The Supreme Court of Canada in  Kanthasamy v. Canada (Citizenship and Immigration), [2015] 3 SCR 909, 2015 SCC 61, held that the replacement of the correctness standard for questions that are certified as being of general importance with the reasonableness standard was not a one-off. It stated:

In this case, the Federal Court applied a reasonableness standard. The Federal Court of Appeal, however, concluded that the appropriate standard of review was correctness because there was a certified question. It suggested that this Court’s approach in Agraira, where the standard of review was reasonableness despite the presence of a certified question, was at odds with the prior case law. I respectfully disagree.

The Federal Court of Appeal refers to one case from this Court to support this point: Hilewitz v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57 (CanLII), [2005] 2 S.C.R. 706. This case is not particularly helpful. It was decided before Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII), [2008] 1 S.C.R. 190, there was no discussion of the impact of a certified question on the issue of standard of review, and the parties asked that correctness be applied: para. 71. In any event, the case law from this Court confirms that certified questions are not decisive of the standard of review: Baker, at para. 58; Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3 (CanLII), [2002] 1 S.C.R. 84, at para. 23. As the Court said in Baker, at para. 12, the certification of a question of general importance may be the “trigger” by which an appeal is permitted. The subject of the appeal is still the judgment itself, not merely the certified question. The fact that the reviewing judge in this case considered the question to be of general importance is relevant, but not determinative. Despite the presence of a certified question, the appropriate standard of review is reasonableness: Baker, at para. 62.

Paul Daly, Associate Dean and Faculty Secretary at the Faculty of Law, Université de Montréal, is a frequent commentator on administrative law in Canada.  In this blog post titled “Can This Be Correct? Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, he perfectly summarizes the problem with this approach, which is that as a result of the reasonableness standard applying to certified questions of general importance that”deference is [now] due to decision-makers who have no legal expertise, who do not address relevant arguments expressly in their reasons, and who may reasonably come to diametrically opposed conclusions as to similarly situated individuals.”  The inanity that existed in citizenship law prior to Bill C-24, where citizenship judges could pick and choose which tests they chose to apply, will likely soon manifest itself in many areas of the law. Indeed, this possibility was explicitly affirmed by the Federal Court of Appeal in Tranwhere the Federal Court of Appeal ruled that as a result of the recent Supreme Court jurisprudence it would be reasonable for the Immigration and Refugee Board member to rule that a conditional sentence was a sentence that could lead to deportation, and that it would be perfectly reasonable for a different Immigration and Refugee Board member to reach the opposite conclusion.

The Federal Court of Appeal has now essentially asked Parliament to intervene, stating in Canada (Citizenship and Immigration) v. Huruglica that:

Kanthasamy will obviously have a tremendous impact, given that for many years, the Federal Court resorted to the certification process under subsection 74(d) to settle divergent interpretations or disagreements on legal issues of general importance. This Court’s providing the correct answer to certified questions appears to have been welcomed, particularly by the IAD and the RPD, who saw it as helpful in carrying out their functions.

The legislator is obviously empowered to set the standard of review that it wants to see applied to questions certified pursuant to subsection 74(d) of the IRPA. However, this must be done very clearly. Should the legislator wish to continue the system that was in place before Kanthasamy, it would be required to amend the IRPA and clarify its intention that certified questions be reviewed on a correctness standard.

In my opinion, it should.