Immigration Litigation

Canadian immigration law determines who may enter and remain, work or study in Canada. It is governed by the Immigration and Refugee Protection Act (“IRPA”), and the regulations made thereunder, as well as case law and the Canadian Constitution.

1- Appeals
One of the judiciary’s functions is to oversee government’s operations. This notion, called the rule of law, requires that governmental officials respect and work within set boundaries. The judge does this through an appeal or judicial review of administrative decisions. In certain limited cases, an appeal may be made to the Immigration Appeal Division; such as in the case of:

  • a decision not to issue a foreign national a permanent resident visa as a member of the family class;
  • a decision to make a removal order against a foreign national who holds a permanent resident visa made under subsection 44(2) or made at an admissibility hearing;
  • a decision to make a removal order against a permanent resident or protected person made under subsection 44(2) or made at an admissibility hearing; and
  • a decision made outside of Canada on the residency obligation under s. 28 against a permanent resident.[1]

2- Judicial Review

In other cases, the IRPA provides that any decision, determination or order made, measure taken or question raised under the Act can be subject to a judicial review by the Federal Court.[2]

There are five grounds (or bases) for judicial review:

  • procedural fairness (for example, where there was a failure in the procedure such as neglecting to give the claimant an opportunity to present their case);
  • error of law (for example, where there is a failure to identify and apply the correct legal test to a decision);
  • abuse of discretion (for example, where there is a ruling that is clearly unreasonable);
  • error of fact (for example, making a factual finding that is not based on a proper understanding of the evidence); and
  • error of mixed law and fact (for example, misapplying the correct legal test to a decision).[3]

One of these grounds must be established in order to be entitled to legal relief from the Federal Court; however, even where a ground is fully demonstrated, the court has a discretion whether or not to grant relief.

3- Procedural Review

Procedural fairness is analytically broken down into two main categories:

  • The first type is where the decisionmaker has not satisfied the duty to act fairly. The duty to act fairly applies to some legal processes, and the court has determined that the duty applies to immigration processes. The issue of whether a decisionmaker has met the duty is answered with reference to five factors:

 

  1. the nature of the decision – The more the process provided for, the function of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision resemble judicial decision-making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness.[4]
  2. the nature of the statutory scheme – Greater procedural protections will be required when no appeal procedure is provided within the statute or when the decision is determinative of the issue and further requests cannot be submitted.[5]
  3. the importance of the decision – The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated.[6]
  4. the reasonable expectation of the claimant – If the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness.[7]
  5. the choice of procedure of the agency itself.[8]

 

  • The second type is where the decisionmaker is biased. The legal test for determining whether bias exists is as follows: “[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded people, applying themselves to the question and obtaining thereon the required information”.[9]

 

4- Substantive Review

In analyzing the substance of immigration decisions, the Federal Court utilizes different standards of review for different types of cases. The standards of review are reasonableness and correctness.

  • If the court chooses to apply a correctness standard, it will not show deference to the decision-maker’s reasoning process but instead will undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination or not. If the court does not agree, the court will substitute its own view.[10]
  • If the court chooses to apply a reasonableness standard, it will examine whether the decision under review, including both its rationale and outcome, is transparent, intelligible and justified, and whether it is based on an internally coherent and rational chain of analysis and whether it is justified in relation to the facts and law that constrain the decision-maker.[11]

The court applies three main factors in determining the appropriate standard of review for a given administrative decision:

  • the existence of a privative clause or a statutory right of appeal;
  • the expertise of the decisionmaker; and
  • the nature of the decision – whether it is on a question of fact, which attracts more deference, or a question of law, which attracts less deference.

However, once that analysis of determining the standard of review has already been completed in a particular context, the court, pursuant to stare decisis, consistently follows that outcome in like contexts unless or until that precedent is appealed or overturned. For example, the standard of review for questions of procedural fairness has already been decided to be correctness;[12] the standard of review for a visa officer’s decision to refuse to issue a study permit is reasonableness.[13]

5- The Federal Court’s Powers

If the Federal finds a problem with an immigration decision, the Federal Court does not have jurisdiction to substitute its own decision for that of the decision-maker. If deemed appropriate, the court can quash the decision and remit the matter back to a different immigration officer for redetermination.

The Federal Court has the jurisdiction to issue extraordinary remedies (or prerogative writs). These include:

  • certiorari (i.e. an order quashing the decision);
  • prohibition (i.e. an order preventing a decision); and
  • mandamus (i.e. an order compelling the performance of a public duty).

 

6- Procedure

A judicial review of an immigration decision is started by making an application for leave to the Federal Court.

Azimi Law may assist you with an appeal or judicial review of an immigration decision. We are empathetic, knowledgeable and confident, and ready to provide efficient and practical solutions.

References

Blake, Sara. Administrative Law in Canada, 6th ed. Toronto, ON: LexisNexis, 2017.

Flood, Colleen M. and Lorne Sossin. Administrative Law in Context, 3rd Edition. Toronto, ON: Edmond Publishing Inc., December 2017.

Liew, Jamie Chai Yun and Donald Galloway. Immigration Law, 2nd Edition. Toronto, ON: Irwin Law Inc., August 2015.

[1] IRPA, s. 63.

[2] IRPA, s. 72(1).

[3] Federal Courts Act, s. 18.1(4).

[4] Baker v. Canada (Minister of Citizenship and Immigration), [1999] S.C.J. No. 39 (QL), para. 23 [“Baker”].

[5] Ibid, para. 24.

[6] Ibid, para. 25.

[7] Ibid, para. 26.

[8] Ibid, para. 27.

[9] Committee for Justice and Liberty et al v. National Energy Board et al, [1978] 1 SCR 369, page 394.

[10] Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9 (QL), para. 50 [“Dunsmuir”].

[11] Canada (Minister of Citizenship and Immigration) v. Vavilov, [2019] S.C.J. No. 65 (QL), paras. 15 and 85 [“Vavilov”].

[12] Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), [2020] F.C.J. No. 1093 (QL), para. 35 [“Refugee Lawyers”].

[13] Mekhissi v. Canada (Citizenship and Immigration), [2020] F.C.J. No. 201 (QL), paras. 11-13 [“Mekhissi”].


[1] IRPA, s. 63.

[2] IRPA, s. 72(1).

[3] Federal Courts Act, s. 18.1(4).

[4] Baker v. Canada (Minister of Citizenship and Immigration), [1999] S.C.J. No. 39 (QL), para. 23 [“Baker”].

[5] Ibid, para. 24.

[6] Ibid, para. 25.

[7] Ibid, para. 26.

[8] Ibid, para. 27.

[9] Committee for Justice and Liberty et al v. National Energy Board et al, [1978] 1 SCR 369, page 394.

[10] Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9 (QL), para. 50 [“Dunsmuir”].

[11] Canada (Minister of Citizenship and Immigration) v. Vavilov, [2019] S.C.J. No. 65 (QL), paras. 15 and 85 [“Vavilov”].

[12] Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), [2020] F.C.J. No. 1093 (QL), para. 35 [“Refugee Lawyers”].

[13] Mekhissi v. Canada (Citizenship and Immigration), [2020] F.C.J. No. 201 (QL), paras. 11-13 [“Mekhissi”].

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