Sean Rehaag, an Associate Professor at Osgoode Hall Law School, has published a paper titled Judicial Review of Refugee Determinations (II): Revisiting the Luck of the Draw. Its Abstract states:
This article updates an earlier empirical study of decision-making in the refugee law context in Canada’s Federal Court. The initial study found that outcomes in Federal Court applications for judicial review of refugee determinations depended all too often on the luck of the draw – on which judge decided the case. Since the initial study was released, the Federal Court has adopted measures to address variations in grant rates across judges. Drawing on data collected from over 33,000 online Federal Court dockets from 2008 to 2016, the article examines whether those measures have been successful and what further reforms should be pursued.
Some of the charts contained within are fascinating, and show the following.
1) The number of applications for leave to commence judicial review in refugee matters has been steadily declining since 2012.
2) The % of leave applications being granted has increased from just under 20% from 2008-2012 to just under 30%.
3) The % of successful judicial review applications, not including those that settle, has increased from under 10% to around 15%
4) The JR Grant Rate, including leave decisions, ranges from 0.7% to 33.8% in 2008-2011, and 1.8% to 22.8% in 2013-2016, depending on who the judge is.
» Read more about: Judicial Review Success Rates on Refugee Matters based on the Judge »
Read more ›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 “the judgment itself, not merely the certified question.” Simply put, “once a case is to be considered by the Federal Court of Appeal, that Court is not restricted only to deciding the question certified”; instead, the Court may “consider all aspects of the appeal before it.”
Exceptions
Despite the firm wording in the IRPA and in the Citizenship Act, the Federal Court of Appeal has allowed certain exceptions to the rule that an appeal cannot be made to the Federal Court of Canada without leave.
» Read more about: Certified Questions and the Federal Court of Appeal »
Read more ›The Federal Court of Canada can provide interlocutory stays, including staying removal.
There is a three-stage test to be applied when considering an application for an interlocutory injunction.
A court must determine that there is a serious issue or question to be tried, that the applicant would suffer irreparable harm if the injunction were to be refused, and that the balance of convenience (assessed by examining which of the parties will suffer the greater harm from granting or refusing the injunction) rests with the applicant.
As well, it is important to note that a stay of removal is an equitable remedy that is typically only available to an individual who has not committed an inequity.
Irreparable Harm
The Supreme Court of Canada describes ‘irreparable harm’ as follow:
“Irreparable” refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.
In other words, harm which can be avoided, or if unavoidable can be cured, is not irreparable harm.
Irreparable harm is often the deciding factor in an interlocutory motion. In British Columbia Civil Liberties Association v. Canada (Citizenship and Immigration), for example, the Federal Court found that there was no irreparable harm for Canadian citizens facing loss of their citizenship. The reason for this was because there was (and as of writing is) currently a consolidated Federal Court proceeding through which anyone who files an Application for Leave to Commence Judicial Review will receive an automatic stay. As Justice Zinn noted:
Here, as the Moving Parties admit, the harm to anyone in receipt of a Notice of Intent to Revoke Citizenship is avoidable.
» Read more about: Staying Removal at Federal Court »
Read more ›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“). This is unfortunate because the question that Justice de Montigny certified needs to be answered. 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 the deferral period, the CBSA will then contact Citizenship and Immigration Canada (“CIC”), who, often without providing the prospective permanent resident with any notice, cancel the permanent resident visa. CBSA can then deny entry to Canada on the basis that the person does not have a valid permanent resident visa rather than for the underlying possible inadmissibility. Many immigration practitioners have suspected that the reason for this is to prevent the prospective permanent resident from having a right of appeal to the Immigration Appeal Division (the “IAD“).
The Federal Court’s decision in Ismail in my opinion raised more questions than it answered, and it is unfortunate that the question will remain murky until the question is again certified in the future.
» Read more about: The Right of Permanent Resident Visa Holders to Appeal to the IAD »
Read more ›The Federal-Provincial Fiscal Arrangements Act (the “FPFAA“) establishes the Canada Social Transfer, a federal block transfer to provinces and territories to support post-secondary education, social assistance, social services, early childhood development, and early learning. In 2014-15 the total Canada Social Transfer transferred to all provinces and territories will be almost $12.6 billion.
The FPFAA stipulates that one of the objectives of the Canada Social Transfer is to maintain a national standard in which no period of minimum residency is required or allowed for an individual to receive social assistance, and the current version of s. 25.1 of the FPFAA achieves this by stipulating that:
Criteria for eligibility — Canada Social Transfer
25.1 In order that a province may qualify for a full cash contribution under [the Canada Social Transfer] for a fiscal year, the laws of the province must not
(a) require or allow a period of residence in the province or Canada to be set as a condition of eligibility for social assistance or for the receipt or continued receipt of social assistance; or
(b) make or allow the amount, form or manner of social assistance to be contingent on a period of such residence.
In other words, provinces and territories cannot currently impose a minimum period of residence on the receipt of social assistance without a reduction in their Canada Social Transfer payments.
One of the measures in the Conservative Government of Canada’s second Omnibus Bill titled “A Second Act to Implement Certain Provisions of the Budget Tabled in Parliament on February 11, 2014 and other measures” (the “Budget Implementation Act“) would modify this national standard to clarify that provinces only cannot impose residency requirements on the following people:
- Canadian citizens;
» Read more about: Introducing a Residency Requirement for Social Transfers »
Read more ›Many lawyers when they meet with clients often find themselves reviewing rejected applications and/or hearings where it is obvious that an individual’s previous representative was incompetent. The examples of incompetence range from missed deadlines to not understanding the law. Some specific scenarios that clients have told me about include:
- former counsel being told by an Immigration Appeal Division member to “sit down” because they were incompetent;
- an immigration consultant not knowing the difference between a “conviction” and a “dismissal”;
- an immigration consultant that the “Prevailing Wage = the wage paid to Canadians at the employer’s company”; and
- a lawyer filing late because “deadlines are policy, not statute.”
The previous representative’s incompetence may serve as a ground for relief in a judicial review. However, cases based on incompetence and/or negligence of previous counsel are exceptionally difficult cases. The Federal Court’s March 7, 2014, Procedural Protocol on arguing incompetence of counsel only make these cases more challenging.
The Law on Incompetence of Counsel
As the Supreme Court of Canada stated in R v. GDB for incompetence/negligence of previous counsel/representative to count as a ground for judicial review, it must be established that (1) previous counsel’s acts or omissions constituted incompetence and (2) that a miscarriage of justice resulted from the incompetence.
The Federal Court has closely followed the above two requirements when determining whether an alleged incompetence is a ground for review. In the frequently cited case of Memari v Canada (Minister of Citizenship and Immigration), the Court stated that:
…the performance component must be exceptional and the miscarriage of justice component must be manifested in procedural unfairness,
» Read more about: Arguing Incompetence of Counsel in an Appeal »
Read more ›[The following is a slightly edited (to include links) version of an article that I wrote for The Canadian Immigrant.]
In February 2011, Canada and the United States agreed to the Beyond the Border: A Shared Vision for Perimeter Security and Economic Competiveness. More commonly known as the Beyond the Border Action Plan, the effect of the agreement was to strengthen co-operation and, in some cases, harmonize Canadian and American immigration practices.
The Government of Canada has begun enthusiastically implementing the terms of the Beyond the Border Action Plan, and will in 2014-2015 introduce three significant changes to Canadian immigration legislation that will impact almost everyone who enters Canada.
Electronic travel authorization
People who wish to visit Canada generally fall into one of two categories: those who need to apply for and obtain temporary resident visas prior to arriving in Canada; and those who can arrive at Canadian ports of entry without first obtaining a visa. This will change in April 2015, when Canada implements the electronic travel authorization (“eTA”) system.
All foreign nationals who are exempt from the requirement to obtain a temporary resident visa will instead need to obtain online authorization before they fly to Canada. This includes Europeans, Australians, Japanese, Koreans, etc. Citizens from the United States, however, are exempt.
The eTA application process will be online via the Citizenship and Immigration Canada (CIC) website. Applicants will be required to enter biographic, passport and background information, which may affect admissibility to Canada. An electronic system will then perform an examination that includes a risk assessment and a verification of the information provided in the application against enforcement databases. The Government of Canada expects that the majority of applications will be approved within minutes.
» Read more about: The Beyond the Border Initiative – ETA, Information Sharing, Tracking Exits »
Read more ›Sharifi v. Canada (Citizenship and Immigration), 2013 FC 453
This was a FSWP case involving an officer who refused a marine engineer’s application because the officer did not think that the applicant had demonstrated that he performed the main duties of NOC 7132. In overturning the decision, the Federal Court judge (who prior to becoming a judge was a marine lawyer) stated that the officer did not demonstrate the expertise required of a visa officer.
The following two paragraphs are the most interesting part of the decision:
Furthermore, decision-makers are entitled to deference because of their expertise. The visa officer should be taken to know the functions of a third engineer, even if they had not been spelled out.
Consequently, the visa officer is taken to know the Marine Personnel Regulations issued under the Canada Shipping Act, 2001. He would know that a fourth class engineer has at least six months of sea service as an engineer in charge of machinery on vessels that have a propulsive power of at least 500 kW, has attended various training courses and has successfully been examined with respect to applied mechanics, thermodynamics, electro technology, engineering knowledge of motor vessels and steamships and, once again, much, much more.
Perhaps the Federal Court of Appeal, and eventually the Supreme Court of Canada, will consider this case when they determine whether the standard of review for questions of law in immigration matters is reasonableness or correctness.
Zhou v. Canada (Citizenship and Immigration), 2013 FC 465
This case involved a wealthy Chinese individual whose application for a Temporary Resident Visa was refused. While the Court was critical of much of the officer’s decision,
» Read more about: Four Case Comments »
Read more ›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 not to issue a permanent resident visa.
(4) Any fees paid to the Minister in respect of the application referred to in subsection (1) — including for the acquisition of permanent resident status — must be returned, without interest, to the person who paid them. The amounts payable may be paid out of the Consolidated Revenue Fund.
(5) No person has a right of recourse or indemnity against Her Majesty in connection with an application that is terminated under subsection (1).
Read more ›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 of immigration law.
As the chart below demonstrates, while the Supreme Court of Canada has been moving towards the reasonableness standard in most administrative law contexts, the Federal Court of Appeal has so far resisted abandoning the correctness standard in the immigration context.
Case Name
Year
Court
Finding
Quote
Hilewitz v. Canada (Minister of Citizenship and Immigration)
2005
SCC
Correctness
The parties are in agreement that correctness is the applicable standard for reviewing the visa officers’ decisions in these appeals. » Read more about: Certified Question on the Standard of Review for Visa Officers Interpreting The Law (Updated March 25, 2013) »
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