Section 18.1(4) of the Federal Court Act, RSC 1985, c F-7, states that the grounds for judicial review are:
The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.
Based its Decision or Order on an Erroneous Finding of Fact in a Perverse or Capricious Manner
In Rahal v Canada (Minister of Citizenship and Immigration), 2012 FC 319, Justice Gleason provided the following guidance on interpreting s. 18.1(4):
In the seminal case interpreting section 18(1)(d) of the FCA, Rohm & Haas, Chief Justice Jacket defined “perversity” as “willfully going contrary to the evidence” (at para 6). Thus defined, there will be relatively few decisions that may be characterized as perverse.
The notion of “capriciousness” is somewhat less exacting. In Khakh v Canada (Minister of Citizenship and Immigration), (1996), 116 FTR 310,  FCJ No 980 at para 6, Justice Campbell defined capricious, with reference to a dictionary definition,Read more ›
Last updated on September 29th, 2019
Subsection 25(1) of Canada’s Immigration and Refugee Protection Act provides immigration officers with the flexibility to grant on humanitarian and compassionate (“H&C“) exemptions to overcome the requirement of obtaining a permanent residence visa from abroad and/or to overcome class eligibility requirements and/or inadmissibilities.
H&C applications may be based on a number factors, including:
- establishment in Canada;
- ties to Canada;
- the best interests of any children affected by their application;
- factors in their country of origin (this includes but is not limited to: Medical inadequacies, discrimination that does not amount to persecution, harassment or other hardships that are not related to a fear of return based on refugee determination factors;
- health considerations;
- family violence considerations;
- consequences of the separation of relatives;
- inability to leave Canada has led to establishment; and/or
- any other relevant factor they wish to have considered not related to a fear of return based on refugee determination factors.
The purpose of this post is to focus on the establishment factor.
Establishment in Canada
Immigration, Refugees and Citizenship Canada’s Guidelines (the “Guidelines“) provides that the degree of an applicant’s establishment may be assessed by analyzing the following questions:
- Does the applicant have a history of stable employment?
- Is there a pattern of sound financial management?
- Has the applicant remained in one community or moved around?
- Has the applicant integrated into the community through involvement in community organizations, voluntary services or other activities?
- Has the applicant undertaken any professional, linguistic or other studies that show integration into Canadian society?
A Canadian citizen helps an undocumented refugee claimant come to Canada without the proper documentation to seek asylum by paying for part of his transportation.
A Canadian marries a foreign national, and helps bring her to Canada without going through the proper process. The couple are now staying with the Canadian’s mother, who is providing temporary accommodation while the couple looks for a place to rent.
When asked to describe a human smuggler, most people are unlikely to think of the above two scenarios. Rather, they will generally describe organized criminal elements who are paid to transport people across borders. However, in Canada it was unclear until November 2015 if the offence of “human smuggling” encompassed the above two scenarios, when the Supreme Court of Canada issued its decision in R v. Appulonappa, 2015 SCC 59.
Background to Appulonappa
Appulonappa arose from the October 17 2009 arrival to Vancouver Island of the MV Ocean Lady, which carried 76 undocumented Sri Lankan Tamil asylum seekers to Canada. The Crown charged four individuals with human smuggling pursuant to s. 117 of the Immigration and Refugee Protection Act, S.C. 2001, c 27 (“IRPA”), which states:
No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act.
No proceedings for an offence under this section may be instituted except by or with the consent of the Attorney General of Canada.
IRPA s. 117 is very broad, and consists of the following four elements:
- The person being smuggled did not have the required documents to enter Canada;
Extradition and deportation are two different things. Extradition is the official process whereby one country transfers a suspected or convicted criminal to another country, generally for prosecution. Deportation, on the other hand, is the removal of an individual from a country generally done for the purpose of achieving an immigration objective. In Roncarelli v. Duplessis,  S.C.R. 121, the Supreme Court of Canada (the “SCC”) recognized that it was an abuse of process for a government department to exercise a statutory power for a reason that is unrelated to the purpose for which that power was granted. In the immigration context, it is accordingly an abuse of process for immigration authorities to initiate removal proceedings against an individual to extradite someone.
In United States v. Rogan, 2014 BCSC 116 (“Rogan”), Justice Fish summarized the principles of what is known as “disguised extradition” as follows: (Citations and paragraph numbers removed)
Deportation and extradition have fundamentally different underlying objectives. Deportation is a discretionary decision made by Canadian immigration authorities aimed at protecting the public good. Extradition, which is initiated by foreign authorities, is aimed at delivering a person sought for prosecution to that foreign authority.
A person subject to extradition proceedings has a panoply of constitutionally-enshrined protections not available to a person subject to an IRPA admissibility hearing. For example, a person ordered extradited is immune from prosecution in the requesting state for offences that have not been identified in the surrender order. By contrast, there are no restrictions on what a deported person can be prosecuted for once removed from Canada.
The essence of a “disguised extradition” claim is that removal proceedings were not instituted to pursue a valid immigration objective, but to procure, on behalf of a foreign state,Read more ›
Last month, a British Columbia Provincial Nomination Program (“BC PNP”) officer requested that one of my employer clients provide payroll documents for individuals who were not a part of the BC PNP application. We politely pointed out that the employer could not do this without the third party employees’ consent, as to provide the documents without their consent would be contrary to BC’s Personal Information Privacy Act. Alternatively, the BC PNP had to at least provide the statutory authority to compel the production of these third party documents The British Columbia Office of the Information & Privacy Commissioner confirmed that we were correct. The BC PNP officer respected our position, and the events left me confident in the Province of British Columbia’s respect for personal privacy.
We were of course not the first to navigate the complicated intersection between the government’s administering its immigration programs the right to privacy, which pursuant to numerous Supreme Court of Canada is a quasi-constitutional right. For example, as noted in the following “Findings under the Privacy Act,” Citizenship and Immigration Canada (“CIC”) recently agreed with the Office of the Privacy Commissioner of Canada that it was an unreasonable breach of privacy for CIC to request the tax information of potential employers of Live-in Caregivers:
Three individuals who wished to employ live-in caregivers from the Philippines complained to this Office that the Canadian Embassy in Manila was asking them to provide sensitive income tax information before it would issue visas to their prospective caregivers. The individuals were worried about sending tax documents containing their social insurance numbers (SINs) and detailed information about their financial situation to a foreign country, especially with identity fraud having become such a major concern.Read more ›