The Federal Court of Canada has the ability to review the decisions of administrative tribunals, including decision makers with Immigration, Refugees and Citizenship Canada and the Canada Border Services Agency.  Most people familiar with judicial systems know that decisions of lower courts can be appealed to higher courts.  However, section 74(d) of Canada’s Immigration and Refugee Protection Act and s. 22.2(d) of the Citizenship Act provide that an appeal to the Federal Court of Appeal may only be made if a Federal Court judge, when rendering judgement, the judge certifies that a serious question […]

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Section 74(d) of Canada’s Immigration and Refugee Protection Act provides that an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the Federal Court certifies that a serious question of general importance is involved and states the question.  Certified questions have traditionally resolved divergent jurisprudence at the Federal Court, and have typically provided certainty on how immigration law is to be interpreted.  However, as a result of recent Supreme Court of Canada decisions, this is changing. In Agraira v. Canada (Public Safety and Emergency Preparedness), the Supreme Court of Canada applied […]

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Section 108 of the Immigration and Refugee Protection Act states that a person’s refugee protection chall cease when: Rejection 108. (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances: (a) the person has voluntarily reavailed themself of the protection of their country of nationality; (b) the person has voluntarily reacquired their nationality; (c) the person has acquired a new nationality and enjoys the protection of the country of that new nationality; (d) […]

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On March 17, 2015, Justice Montigny in Ismail v. Canada (Citizenship and Immigration), 2015 FC 338 (“Ismail“), certified the following question: 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?

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The Federal Court in Carran v. Canada (Public Safety and Emergency Preparedness) has certified the following question of general importance: During a stay of removal order, does subsection 68(4) of the IRPA only apply to convictions for subsection 36(1) offences committed after the beginning of the stay? The case involved a permanent resident who had several criminal convictions.  On May 13, 2008, a Minister’s delegate referred the permanent resident to an admissibility hearing.  The delegate noted that the individual had 14 convictions, as well as an outstanding criminal charge.  On April 23, […]

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The Federal Court has certified what might be the most important (and least discussed) issue in Canadian immigration law.  In Qin v. Canada, the Court asked: What standard of review is applicable to a visa officer’s interpretation of the Immigration and Refugee Protection Regulations, SOR/2002-227 and to the officer’s assessment of an application under the Immigration and Refugee Protection Regulations, SOR/2002-227? The answer to this question will have profound implications regarding the certainty applicants can have when they submit applications, and when counsel provide immigration advice.  If the answer is the correctness standard, then a […]

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The Federal Court has certified a question regarding whether immigration officers can consider a position’s prevailing wage rate when determining whether an applicant meets the requirements of the Canadian Experience Class (“CEC“).  Although the Court in Qin v. Canada (Citizenship and Immigration), 2013 FC 147 stated that it can, the issue is now on its way to the Federal Court of Appeal. In a previous blog post, I noted that one of the advantages of the CEC over the British Columbia Provincial Nomination Program – Skilled Workers (“BC PNP – Skilled Workers“) […]

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Does the Immigration and Refugee Board (“IRB”) violate the provisions of section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”) if it declines to postpone a hearing based on risk to life where there is a pending humanitarian and compassionate application also based on risk to life? The above question was certified by the Federal Court in Laidlow v. Canada, 2012 FC 144, released today.  The Federal Court of Appeal will soon answer the question. The facts in Laidlow giving rise to the question were essentially that an […]

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I recently did a post about a Federal Court decision which suggests that there is an innocent mistake exception to misrepresentation.  Not one week later, Justice Hughes of the Federal Court certifies the following question: Is a foreign national inadmissible for misrepresenting a material fact if at the time of filing his/her application for permanent residence or at the time of granting permanent residence he/she had no knowledge of the material fact that constituted such misrepresentation? The Federal Court of Appeal’s answer to this certified question will likely clarify many aspects […]

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The Federal Court (the “Court“) in Habtenkiel v. Canada (Citizenship and Immigration), has certified a question that if answered in the affirmative would seem to pretty much shut the door on humanitarian & compassionate (“H&C“) appeals of s. 117(9)(d) refusals.  The certified question is: 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 […]

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