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
Staying Removal at Federal Court
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, … Read More
Introducing a Residency Requirement for Social Transfers
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 … Read More
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
Grounds for Judicial Review – Findings of Fact in a Perverse or Capricious Manner
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, … Read More
The Doctrine of Legitimate Expectations
The doctrine of legitimate expectations is a procedural doctrine which has its source in the common law. Because the doctrine of legitimate expectations is a common law principle, it does not create substantive rights.
The Beyond the Border Initiative – ETA, Information Sharing, Tracking Exits
[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 … 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
Applying for a Stay of Removal in Superior Court
Generally, if an applicant in Canada whose request to the Canada Border Services Agency to defer removal is unsuccessful, and the individual then wants to obtain a judicial stay of removal, the appropriate forum is the Federal Court of Canada. In Anthonipillai v. Minister of Public Safety and Emergency Preparedness, 2013 ONSC 1231, the appellant unsuccessfully sought a stay of removal in Federal Court. He then took the rather novel approaching of trying again in Ontario Superior Court (the “ONSJ“). In dismissing the application, the ONSJ noted that the Supreme Court of Canada has declared that Canada’s Parliament has created a “comprehensive scheme for the review of immigration matters, with the Federal Court as an effective and appropriate forum.” Justice Goldstein also found that Federal Court judges are better equipped than provincial court justices to deal with the complex area of immigration law, as Federal Court judges deal with immigration issues on a daily basis. As such, unless an applicant raises a constitutional matter, the Federal Court has the exclusive jurisdiction to issue remedies regarding the decisions of visa and border officers. Even where there is a constitutional issue, a provincial or superior court is unlikely to rule favourably with an … Read More
Top Source Countries for A44 Reports at YVR
In 2011, 1,108 people were declared inadmissible to Canada when they arrived at the Vancouver International Airport. The following chart obtained through an Access to Information and Privacy Act request shows these individuals’ source countries. The top 10 countries were: Citizenship 2011 United States 247 South Korea 137 Hungary 83 China 72 Taiwan 49 British 40 Australia 35 Iran 30 Hong Kong 26 India 26 Japan 26 Germany 20 Mexico 19