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.
Section 74(d) of the Immigration and Refugee Protection Act (“IRPA”) provides that a litigant cannot appeal a Federal Court decision to the Federal Court of Appeal unless, in rendering judgment, the Federal Court judge certifies that a serious question of general importance is involved. It states:
74(d) subject to section 87.01, an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the judge certifies that a serious question of general importance is involved and states the question.
This does not necessarily, however, preclude an appeal under section 27 of the Federal Courts Act where the Federal Court judge has engaged in certain, limited, actions.
Examples of where the Federal Court of Appeal has heard an immigration related appeal without the Federal Court certifying a question include the following:
Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2011 FCA 1
The issue was whether a Federal Court judge erred in applying section 87 of IRPA to order the return of disputed documents that were inadvertently disclosed by the government to the applicant. Section 87 of IRPA provides that:
Application for non-disclosure — judicial review
87. The Minister may, during a judicial review, apply for the non-disclosure of information or other evidence. Section 83 — other than the obligations to appoint a special advocate and to provide a summary — applies to the proceeding with any necessary modifications.
The Applicant argued that the return of documents which were inadvertently disclosed falls under the Canada Evidence Act, not IRPA, and that therefore she could appeal to the Federal Court of Appeal without there being a certified question. The Federal Court of Appeal agreed.
Subhaschandran v. Canada (Solicitor General), 2005 FCA 27
An individual had sought judicial review of a negative pre-removal risk assessment. The individual also sought a stay of removal until the judicial review application was completed. The Federal Court adjourned the stay of removal issue until after the judicial review of the negative PRRA was complete. In effect, the motions judge refused to decide on the stay of removal matter until the issue was moot.
The Minister appealed the motion judge’s decision to the Federal Court of Appeal. The Court of Appeal carved out an exception to s. 74(d) of IRPA. It noted that while generally interlocutory orders including adjournments cannot be appealed in the immigration context, there is an exception where a judge refuses to exercise his discretion and deal with the case. This amounted to a refusal to exercise jurisdiction. The Court further noted that a remedy must be available to any party where a judge simply refuses to deal with a matter before him either permanently or by adjourning the matter to a time when the matter will be moot.
Horne v. Canada (Minister of Citizenship and Immigration), 2010 FCA 337
The Federal Court of Appeal held that section 74(d) does not apply to allegations of judicial bias.