On March 17, 2015, Justice Montigny in Ismail v. Canada (Citizenship and Immigration), 2015 FC 338 (“Ismail“), certified the following question:
For the purposes of determining its jurisdiction to hear an appeal pursuant to subsection 63(2) of the IRPA, shall the validity of the permanent resident visa be assessed by the IAD at the time of arrival in Canada or at the time the exclusion order is made?
In Ismail, Elham Fathy Elsayed Ismail (the “Applicant”) arrived at a Canadian Port of Entry whereupon the Canada Border Services Agency (“CBSA”) discovered that the Applicant’s IELTS were fake. CBSA deferred the Applicant’s examination, and Citizenship and Immigration Canada (“CIC”) then revoked his permanent resident visa. At the deferred examination, CBSA issued the Applicant an Exclusion Order for trying to enter Canada with a revoked permanent resident visa.
In a strict but clear decision, Justice Montigny held that it was permissible for CBSA to issue the Applicant an Exclusion Order rather than providing the Applicant with an appeal to the Immigration Appeal Division (the “IAD”). He then, however, wrote the following two paragraphs which raise all sorts of questions:
I agree, therefore, with the IAD that foreign nationals who are found to be inadmissible at the port-of-entry or at a deferred examination will have a right of appeal to that tribunal only when their inadmissibility does not relate to the absence of a permanent resident visa. Such will be the case where there has been a change in circumstances since the visa was issued, for example, as a result of a criminal conviction or of a new medical condition. In those circumstances, an exclusion order will be appealable before the IAD, and humanitarian and compassionate factors may then be taken into consideration. When the inadmissibility relates to the absence of a permanent resident visa (whether a permanent resident visa has never been issued or has been revoked), however, the only recourse will be an application for judicial review in this Court.
It goes without saying that visa and immigration officers are presumed to act in good faith. In the unlikely event that a visa was revoked to thwart Parliament’s intention and to preclude the possibility of a legitimate appeal pursuant to subsection 63(2), this Court could be called upon to intervene on judicial review and could quash the decision to revoke a visa for improper or impermissible motives.
The above two paragraphs raise all sorts of interesting questions, and seem to cast doubt on the ability of CBSA to ever defer examinations. If the Federal Court is stating that unreported changes in circumstances, the existence of criminal convictions, or new medical conditions, are all issues that should lead to an IAD appeal, then it is difficult to see what issues could ever warrant a deferred examination for permanent resident visa holders.
Indeed, Ismail appears to have created a huge grey zone in Port of Entry law, and it will be interesting to see how the Federal Court of Appeal clarifies the issue.