Once a decision has been rendered in relation to an application for a humanitarian and compassionate exemption, is the ability of the decision-maker to reopen or reconsider the application on the basis of further evidence provided by an applicant limited by the doctrine of functus officio?Read more ›
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:
(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.
(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,Read more ›