The Right of Permanent Resident Visa Holders to Appeal to the IAD

10th Sep 2015 Comments Off on The Right of Permanent Resident Visa Holders to Appeal to the IAD

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.

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