The Jurisdiction of the IAD in Considering Procedural Fairness in 117(9)(d) Cases

4th Jul 2013 Comments Off on The Jurisdiction of the IAD in Considering Procedural Fairness in 117(9)(d) Cases

On April 25, I blogged about how the Federal Court had certified the following question involving s. 117(9)(d) of the Immigration and Refugee Protection Regulations (“R179(9)(d)”):

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?

On June 11, 2013, in Fang v. Canada (Citizenship and Immigration) (“Fang“), VB2-00332, Member Mattu of the Immigration Appeal Division (the “IAD“) issued a decision which raises similarly broad issues.  Andrew Wlodyka, the appellant’s counsel, has informed me that an Application for Leave to Commence Judicial Review is currently underway, as confirmed here, and I wouldn’t be surprised if the litigation resulted in a certified question.

The issue is whether the IAD has the jurisdiction to determine whether an officer breached procedural fairness in determining humanitarian & compassionate factors (“H&C“) under s. 25 of the Immigration and Refugee Protection Act (“IRPA“)  in an application where R117(9)(d) applies.

R117(9)(d) provides that a foreign national is not a member of the family class if (subject to certain exceptions) the foreign national’s sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application,

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