The Federal Court of Canada has the ability to review the decisions of administrative tribunals, including decision makers with Immigration, Refugees and Citizenship Canada and the Canada Border Services Agency. Most people familiar with judicial systems know that decisions of lower courts can be appealed to higher courts. However, section 74(d) of Canada’s Immigration and Refugee Protection Act and s. 22.2(d) of the Citizenship Act provide that an appeal to the Federal Court of Appeal may only be made if a Federal Court judge, when rendering judgement, the judge certifies that a serious question of general importance is involved and states the question. It is important to note that once a judge certifies a question an appeal to the Federal Court of Canada is not limited to the question that the judge certified. In Kanthasamy v. Canada (Citizenship and Immigration), the Supreme Court stated that (citations removed): Once an appeal has been brought to this Court by way of certified question, this Court must deal with the certified question and all other issues that might affect the validity of the judgment under appeal. The certification of a question “is the trigger by which an appeal is justified” and, once triggered, the appeal concerns … Read More
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 … Read More
Certified Question on Removal Orders for Permanent Resident Visa Holders at the Port of Entry
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?
Certified Question on Affect of Convictions on a Stay of Removal
The Federal Court in Carran v. Canada (Public Safety and Emergency Preparedness) has certified the following question of general importance: During a stay of removal order, does subsection 68(4) of the IRPA only apply to convictions for subsection 36(1) offences committed after the beginning of the stay? The case involved a permanent resident who had several criminal convictions. On May 13, 2008, a Minister’s delegate referred the permanent resident to an admissibility hearing. The delegate noted that the individual had 14 convictions, as well as an outstanding criminal charge. On April 23, 2009, the permanent resident and the Canada Border Services Agency (“CBSA“) made a joint recommendation to the Immigration Appeal Division (the “IAD“) to stay the deportation of the individual for a period of 24 months. The IAD accepted the joint recommendation, and stayed the deportation. On December 2, 2010, the permanent resident pled guilty to the outstanding charge, and received a sentence of one day incarceration, and 18 months probation. The CBSA upon discovering this conviction made an application to cancel the stay of removal, and deport the permanent resident. The IAD canceled the stay, citing section 68(4) of the Immigration and Refugee Protection Act (the “Act”), which states that: If … Read More
Certified Question on the Standard of Review for Visa Officers Interpreting The Law (Updated March 25, 2013)
The Federal Court has certified what might be the most important (and least discussed) issue in Canadian immigration law. In Qin v. Canada, the Court asked: What standard of review is applicable to a visa officer’s interpretation of the Immigration and Refugee Protection Regulations, SOR/2002-227 and to the officer’s assessment of an application under the Immigration and Refugee Protection Regulations, SOR/2002-227? The answer to this question will have profound implications regarding the certainty applicants can have when they submit applications, and when counsel provide immigration advice. If the answer is the correctness standard, then a visa officer’s interpretation of the law will either be correct or not. If the answer is the reasonableness standard, then the courts will show considerable deference to how individual visa officers interpret the law, and it is possible that many different, acceptable interpretations of the same law will emerge. I have previously blogged on the difficulty that citizenship applicants face when determining what constitutes “residency” for the purpose of meeting the “three years out of four” rule. If the Federal Court of Appeal answers that the reasonableness standard applies to a visa officer’s interpretation of the Regulations, then it is possible that this confusion will spread to other area … Read More
Certified Question on Section 7 Charter Rights
Does the Immigration and Refugee Board (“IRB”) violate the provisions of section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”) if it declines to postpone a hearing based on risk to life where there is a pending humanitarian and compassionate application also based on risk to life? The above question was certified by the Federal Court in Laidlow v. Canada, 2012 FC 144, released today. The Federal Court of Appeal will soon answer the question. The facts in Laidlow giving rise to the question were essentially that an individual had a pending H&C claim which was based on risk to life (availability of medical treatment reasons) at the time that he appeared for his refugee hearing. He asked that the refugee hearing be adjourned until the H&C application was determined. The IRB refused to do so, and heard the refugee claim, which was dismissed. The Court’s answer to the question was that refusing to adjourn the hearing did not breach section 7 of the Charter. Relying on Poshteh v. Canada, [2005] 3 FCR 487, and Gosselin v. Quebec (Attorney General of Canada), [2005] 4 SCR 429, the Court articulated the following principles: A finding of inadmissibility does … Read More
Appealing IRPA Decisions to the Federal Court of Appeal Without a Certified Question
Generally, when the Federal Court makes a decision on an immigration matter, the decision is final. As most lawyers tell their clients at the outset, there is no right to appeal a Federal Court decision unless the Federal Court certifies an issue raised in the litigation as being a question of general importance. However, it is important that representatives be familiar with some exceptions to this rule.
Court Certifies Question on Judicial Review of 117(9)(d) Refusals
The Federal Court (the “Court“) in Habtenkiel v. Canada (Citizenship and Immigration), has certified a question that if answered in the affirmative would seem to pretty much shut the door on humanitarian & compassionate (“H&C“) appeals of s. 117(9)(d) refusals. The certified question is: In light of sections 72(2)(a), 63(1) and 65 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and the case of Somodi v. Canada (Minister of Citizenship and Immigration), 2009 FCA 288 (CanLII), [2010] 4 F.C.R. 26 (F.C.A.), where the applicant has made a family class sponsorship application and requested humanitarian and compassionate considerations within the application, is the applicant precluded from seeking judicial review by the Federal Court before exhausting their right of appeal to the Immigration Appeal Division where the right of appeal is limited pursuant to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227? That question is long and confusing, but lets break it down.
Court Certifies Numerous Questions in Dismissal of Skilled Worker Class Action [Updated – Federal Court of Appeal Dismisses Appeal]
In Tabingo c. Canada (Citizenship and Immigration), 2013 FC 377, the Federal Court (the “Court“) certified three questions when it dismissed the class action lawsuit launched by people whose permanent residence applications were terminated by Bill C-38, the Jobs Growth and Long-term Prosperity Act (“Bill C-38“). Bill C-38 introduced a new s. 87.4(1) (“Section 87.4(1)“)to the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA“) ,which terminated Federal Skilled Worker Class applications made before February 27, 2008 unless an officer had made a selection decision before March 29, 2012. Section 87.4(1) reads: 87.4 (1) An application by a foreign national for a permanent resident visa as a member of the prescribed class of federal skilled workers that was made before February 27, 2008 is terminated if, before March 29, 2012, it has not been established by an officer, in accordance with the regulations, whether the applicant meets the selection criteria and other requirements applicable to that class. (2) Subsection (1) does not apply to an application in respect of which a superior court has made a final determination unless the determination is made on or after March 29, 2012. (3) The fact that an application is terminated under subsection (1) does not constitute a decision … Read More
The Right of Permanent Resident Visa Holders to Appeal to the IAD
Section 63(2) of the Immigration and Refugee Protection Act (“IRPA“) provides that: A foreign national who holds a permanent resident visa may appeal to the Immigration Appeal Division against a decision to make a removal order against them made under subsection 44(2) or made at an admissibility hearing. The jurisprudence around this section has seemingly been to narrow it. Jurisprudence Ismail v. Canada On June 5, 2015, the appellants in Elham Fathy Elsayed Ismail et al v. Minister of Citizenship and Immigration, A-203-15, discontinued their appeal of the Federal Court’s decision in Ismail v. Canada (Citizenship and Immigration), 2015 FC 338 (“Ismail“). That question was: 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? The question is important because it addresses a growing tendency of the Canada Border Services Agency (“CBSA“) to defer the examination of foreign nationals possessing permanent resident visas seeking to become permanent residents where CBSA suspects that the foreign nationals may not be admissible to Canada, rather than preparing an inadmissibility report. During … Read More