Appealing IRPA Decisions to the Federal Court of Appeal

17th Jan 2011 Comments Off on Appealing IRPA Decisions to the Federal Court of Appeal

Generally, when the Federal Court makes a decision on an immigration matter, the decision is final. As most lawyers tell their clients at the outset, there is no right to appeal a Federal Court decision unless the Federal Court certifies an issue raised in the litigation as being a question of general importance. However, it is important that representatives be familiar with some exceptions to this rule.

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US War Deserters – Immigrating to Canada

12th Jul 2010 Comments Off on US War Deserters – Immigrating to Canada

Being a war deserter does not in of itself mean that either a refugee claim or an application for permanent residency based on humanitarian & compassionate (“H&C“) grounds will succeed.

On July 6, 2010,the Federal Court of Appeal (the “FCA“) released its decision in Hinzman v. Canada (Citizenship and Immigration), 2010 FCA 177 (“Hinzman“)

Hinzman involved an American soldier who for moral and religious beliefs was against “all participation in war.”  In 2004, upon learning that his unit would be deployed to Iraq, Mr. Hinzman fled the United States for Canada. He was AWOL from the US army since his arrival in Canada.  He originally claimed refugee status, a claim which was unsuccessful.

Mr. Hinzman then filed a Pre-Removal Risk Assessment (“PRRA“) and an application for permanent residence based on H&C grounds.

A Citizenship and Immigration Canada officer (the “Officer“) rejected the PRRA.  She found that:

[t]he possibility of prosecution under a law of general application is not, in and of itself, sufficient evidence that an applicant has a well-founded fear of persecution. The PRRA application is not an avenue to circumvent lawful and legitimate prosecutions commenced by a democratic country.

Mr. Hinzman did not seek leave to apply for judicial review of the PRRA decision.

The Officer also rejected the H&C application.  Mr. Hinzman sought leave to appeal of this decision.  The Federal Court upheld the Appellant’s decision. However, it certified the following question:

Can punishment under a law of general application for desertion, when the desertion was motivated by a sincere an deeply held moral, political and/or religious objection to a particular war, amount to unusual, undeserved or disproportionate hardship in the context of an application for permanent residence on humanitarian and compassionate grounds?

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Functus Officio

22nd Jun 2010 Comments Off on Functus Officio

Last updated on April 29th, 2019

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,

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