The doctrine of mootness is an aspect of a general policy that a court may decline to decide a case which raises merely a hypothetical or abstract question. It applies when the decision of a court will not have the effect of resolving a live controversy which affects or may affect the rights of the parties.
Read more ›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.
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Does the Immigration Appeal Division have an obligation to determine the genuineness of a marriage on a de novo appeal from a removal order on the basis of a misrepresentation, when the genuineness of the marriage was the misrepresentation alleged in the subsection 44(1) report and was relevant to a determination by the IAD of whether the person concerned made the misrepresentation in issue before it?
This was the question before the Federal Court of Appeal in Canada (Citizenship and Immigration) v. Peirovdinnabi, 2010 FCA 267. In answering it, the Court reflected on the nature of a de novo hearing.
The matter pertained to an individual whose application for permanent residence on humanitarian and compassionate grounds was granted, in part because of the applicant’s marriage at the time. The application was approved despite the fact that the applicant’s ex-spouse approached immigration authorities advising them that the marriage was a sham entered into solely for immigration purposes.
Shortly thereafter, the applicant applied to sponsor a spouse. This got the attention of immigration authorities, who made a s. 44(1) report to the effect that the applicant was inadmissible for having made a misrepresentation in his H&C application, and that the marriage was not genuine.
The Immigration Division found that the applicant failed to disclose key facts in his H&C application, and that he was therefore inadmissible. Having done so, the Immigration Division stated that it was not necessary to determine the genuineness of the marriage issue.
The Immigration Appeal Division overturned the Immigration Division’s finding that the applicant had failed to disclose key facts. It also stated that it would not consider the genuineness of the marriage because the Immigration Division had not found it necessary to so.
» Read more about: De Novo Jurisdiction and the IAD »
Read more ›The Federal Court has released its decision on the legality of the “decision” to prohibit former British MP George Galloway from entering Canada for having committed terrorism or been a member of a terrorist organization.
Read more ›On August 4, 2010, the Federal Court released its decision in Sayed v. Canada (Citizenship and Immigration), 2010 FC 796 (“Sayed“) The decision involved a discussion of many Pre-Removal Risk Assessment (“PRRA“) issues, including when a PRRA officer will be required to call a hearing.
The PRRA is based on the principle of non-refoulement, and provides that persons should not be removed from Canada to a country where they would be at risk of persecution, torture, risk to life, or risk of cruel and unusual treatment or punishment. Approved applications generally result in the same refugee protection afforded to persons whose refugee claims are approved by the Immigration and Refugee Board.
PRRA is generally carried out through a paper review process. However, officers have the discretion to hold an oral hearing in certain cases, as outlined in s. 167 of the Regulations. This section states that:
Hearing — prescribed factors
167. For the purpose of determining whether a hearing is required under paragraph 113(b) of the Act, the factors are the following:
(a) whether there is evidence that raises a serious issue of the applicant’s credibility and is related to the factors set out in sections 96 and 97 of the Act;
(b) whether the evidence is central to the decision with respect to the application for protection; and
(c) whether the evidence, if accepted, would justify allowing the application for protection.
In Sayed, Justice Zinn noted that in the context of PRRA applications following negative refugee determinations, the test of whether to hold an oral interview is that where the testimony of the applicant, if believed, would adequately address the determinative issues raised by the Board in rejecting the applicant’s refugee claim,
» Read more about: When Will a Hearing be Necessary at a PRRA Review »
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On June 10, 2010, the Federal Court of Appeal (“FCA“) issued its decision in Canada (Citizenship and Immigration) v. Arif, 2010 FCA 157. The majority and concurring opinions discussed two procedural rules that will interest immigration practitioners The first issue was when a Federal Court determination regarding a Citizenship Judge’s decision can be appealed. The second was the relationship between section 399(2) of the Federal Court Rules and the principle of functus officio.
When can a Federal Court Order Regarding a Citizenship Judge’s Opinion be Appealed to the Federal Court of Appeal?
Section 14 of the Citizenship Act regulates appeals from Citizenship judges. Subsections 5 and 6 provide that:
Appeal
(5) The Minister or the applicant may appeal to the Court from the decision of the citizenship judge under subsection (2) by filing a notice of appeal in the Registry of the Court within sixty days after the day on which
(a) the citizenship judge approved the application under subsection (2); or
(b) notice was mailed or otherwise given under subsection (3) with respect to the application.
Decision final
(6) A decision of the Court pursuant to an appeal made under subsection (5) is, subject to section 20, final and, notwithstanding any other Act of Parliament, no appeal lies therefrom.
Subsection six clearly states that the FCA is precluded from hearing appeals from Federal Court decisions pursuant to an appeal of a citizenship judge’s determination. But, does the FCA have jurisdiction to hear appeals from decisions of the Federal Court reconsidering, or refusing to reconsider, its decisions?
In answering this question, the Court applied the test that it articulated in Canada (Minister of Citizenship and Immigration) v.
» Read more about: Functus Officio and Appealing to the Federal Court of Appeal »
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On June 11, 2010, the Supreme Court of Canada released its decision in R v. Conway, 2010 SCC 22 (“Conway“). Conway explored the relationship between the Charter, its remedial provisions, and administrative tribunals.
Sections 24(1) and 24(2) of the Charter deal with remedies. Section 24(1) states that anyone whose Charter rights or freedoms have been infringed upon or denied may apply to a “court of competent jurisdiction” to obtain a remedy that is “appropriate and just in the circumstances”. Section 24(2) states that in those proceedings, a court can exclude evidence obtained in violation of the Charter if its admission would bring the administration of justice into disrepute.
In Conway, the appellant argued that several of his Charter rights were breached when he was detained in mental and health facilities, and sought an absolute discharge as the remedy. The Ontario Review Board (the “Board“) found that it had no Charter jurisdiction to issue a s. 24(1) remedy. The Ontario Court of Appeal found that the Board lacked jurisdiction to grant an absolute discharge as a Charter remedy because granting such a discharge would, in the appellant’s case, be a significant threat to the public and frustrate the intent of Parliament.
After reviewing the jurisprudence surrounding the application of s. 24 to administrative tribunals, the Supreme Court of Canada articulated a two-part test to determine whether an administrative tribunal has the jurisdiction to issue a particular s. 24 remedy. The two parts are:
- Does the administrative tribunal has explicit or implicit jurisdiction to decide questions of law? If it does, and unless it is clearly demonstrated that the legislature intended to exclude the Charter from the tribunal’s jurisdiction,
» Read more about: Section 24 of the Charter and Immigration »
Read more ›Many individuals think that either a visa officer, a Canada Border Services Agency (“CBSA”) officer or an Immigration and Refugee Board member is biased against them.
This is not an argument to make lightly.
The Supreme Court of Canada has held that in order for an individual to demonstrate that a government decision maker is biased, then:
the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. [T]hat test is “what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.
As well, the Supreme Court of Canada has also noted that:
Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice. Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is a serious step that should not be undertaken lightly.
As the Supreme Court of Canada stated, an accusation of bias is not something that should be undertaken lightly, and in the overwhelming majority of cases the Federal Court of Canada has dismissed such accusations. The most common accusation that individuals often make is that an individual is biased because of their race.
» Read more about: Showing that the Visa Officer or IRB Member or CBSA Officer Was Biased »
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