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.
Section 63(2) of the Immigration and Refugee Protection Act (“IRPA“) provides that:
A foreign national who holds a permanent resident visa may appeal to the Immigration Appeal Division against a decision to make a removal order against them made under subsection 44(2) or made at an admissibility hearing.
Paraphrasing the Federal Court’s decision, the facts in Ismail, which are common and illustrative of the legal issue at dispute, were:
Ms. Ismail applied to come to Canada under the skilled workers program. She submitted a language testing certificate and was granted a permanent resident visa, along with her family.
The family arrived at the Lester B. Pearson Airport on October 30, 2011. They presented their permanent resident visas and were examined by an immigration officer. During an interview with the Canada Border Services Agency, the CBSA officer checked a computer database and noticed that a visa officer in Cairo had determined that Ms. Ismail’s language test results were fraudulent but that for some reason Citizenship and Immigration Canada nonetheless issued the visas.
The family were not landed as immigrants at the airport, but were permitted to enter Canada under section 23 of the IRPA for the purpose of attending an examination at a later date. Prior to the examination, on November 23, 2011, a Citizenship and Immigration Canada visa officer revoked the family’s permanent resident visas. They then attended an examination on December 2, 2011 and exclusion orders were issued against all three, given that they did not have valid visas. The family sought to appeal the exclusion orders to the Immigration Appeal Division (the “IAD“), pursuant to subsection 63(2) of the IRPA.
A plain reading of IRPA s. 63(2) would have suggested that the family could have appealed to the IAD. IAD panel members have previously interpreted IRPA to give them this jurisdiction. In Khan v. Canada (Public Safety and Emergency Preparedness), for example, the IAD stated that:
I am of the view that the Immigration Appeal Division has specifically been given the jurisdiction to consider humanitarian and compassionate grounds where reports are written with respect to permanent resident visa holders in order to deal with situations where a change in circumstances has been identified by the examining officer and landing does not take place. The validity of the already presented visa may become questionable, however, in my view; the appellant by virtue of having presented that visa has already passed the threshold of being eligible to appeal any decision flowing from their examination. I find that everything that occurred post presentation of the visa becomes irrelevant with respect to the appellant’s right to appeal.
In Ismail, however, the Federal Court disagreed. Justice de Montigny stated:
The examination process is not completed until a determination is made that a person has a right or is entitled to enter Canada as a temporary or permanent resident, and the visa can be revoked until that determination is made. The fact that a person has entered Canada and triggered the examination process has no bearing on the power to revoke the visa.
It is clear from a textual, contextual and purposive analysis of both section 63(2) and the IRPA as a whole that a right of appeal is granted only to a person who “holds” a valid permanent resident visa at the time the exclusion report is issued. Parliament could have drafted that section differently, to include for example, persons who hold “or have held” a valid permanent resident visa. Parliament chose otherwise, and courts must enforce clear legislative intention.
I agree, therefore, with the IAD that foreign nationals who are found to be inadmissible at the port-of-entry or at a deferred examination will have a right of appeal to that tribunal only when their inadmissibility does not relate to the absence of a permanent resident visa. Such will be the case where there has been a change in circumstances since the visa was issued, for example, as a result of a criminal conviction or of a new medical condition. In those circumstances, an exclusion order will be appealable before the IAD, and humanitarian and compassionate factors may then be taken into consideration. When the inadmissibility relates to the absence of a permanent resident visa (whether a permanent resident visa has never been issued or has been revoked), however, the only recourse will be an application for judicial review in this Court.
The concern that I have with Justice de Montigny’s reasoning, and what I was hoping that the Federal Court of Appeal would address, is that this interpretation of IRPA does not appear to prevent the CBSA from simply deferring examination for any possible inadmissibility and CIC subsequently cancelling a visa. This would render the protections afforded in IRPA s. 63(a) meaningless. Justice de Montigny somewhat addressed this issue by stating:
It goes without saying that visa and immigration officers are presumed to act in good faith. In the unlikely event that a visa was revoked to thwart Parliament’s intention and to preclude the possibility of a legitimate appeal pursuant to subsection 63(2), this Court could be called upon to intervene on judicial review and could quash the decision to revoke a visa for improper or impermissible motives.
This, however, is even more confusing. What is a legitimate appeal and what is not? What grounds of inadmissibility will warrant a deferral of examination, and what will not? When must CBSA issue the inadmissibility report, and when can it defer examination? If intention is the determining factor, will the onus be on applicants to figure out whether the intention of CBSA officers were to legitimately thwart Parliament or to legitimately defer examination?
On September 9, 2015, the Federal Court certified another question regarding the interpretation of IRPA s. 63(2). The question is:
In an appeal pursuant to s. 63(2) of the Immigration and Refugee Protection Act, in relation to what period in time should an assessment of membership in the family class under s. 65 be conducted by the Immigration Appeal Division?
The facts of the case are incredibly complicated, however, the issue is important because of the possible denial of humanitarian & compassionate considerations to individuals who are no longer members of the family class by the time of their IAD hearing.