Lorne Waldman

The Supreme Court of Canada allowed Ms. Pepa’s appeal from Federal Court of Appeal and Federal Court judgments that upheld an Immigration Appeal Division ruling denying jurisdiction under s. 63(2) of the Immigration and Refugee Protection Act.

A majority held the IAD’s interpretation was unreasonable and concluded the only reasonable interpretation is that visa-holder status for this appeal right is assessed at the time of arrival in Canada, then remitted the matter to the IAD for determination of the removal-order appeal.

Rowe J. agreed the decision was unreasonable but would have remitted without declaring a single reasonable interpretation, while Côté and O’Bonsawin JJ. would have dismissed the appeal.

The applicant sought judicial review of a decision refusing his application for permanent residence on humanitarian and compassionate grounds.

The Federal Court allowed the application, finding that the officer's analysis of the best interests of the child was unreasonable because it failed to account for evidence inconsistent with the conclusion that the child should remain in India.

The applicant applied for judicial review of an Immigration Appeal Division (IAD) decision dismissing her appeal regarding her inability to meet the Minimum Necessary Income requirement to sponsor her family members.

The IAD found insufficient humanitarian and compassionate considerations to warrant special relief.

The applicant argued the IAD breached procedural fairness by relying on a previous adverse credibility finding without notice and that the decision was unreasonable.

The Federal Court held there was no breach of procedural fairness, as the applicant should have known credibility was at issue, and found the IAD's assessment of the financial risks and humanitarian factors was reasonable.

The applicant applied for permanent residence in Canada as a self-employed person with the intention of opening an art studio.

A visa officer refused the application, citing a lack of sufficient evidence, particularly the absence of a business plan.

On judicial review, the Federal Court found the officer's decision unreasonable because the rationale could not be discerned from the reasons, rendering the conclusion unintelligible and opaque.

The application for judicial review was allowed.

The applicant sought a writ of mandamus to compel the Minister to render a decision on his permanent resident application under the Express Entry program.

The application was submitted over three and a half years prior, but was delayed due to an ongoing security screening.

The Federal Court found that the delay was prima facie longer than required and that the Minister failed to provide a satisfactory justification.

The court rejected the Minister's general references to security investigations and the COVID-19 pandemic as sufficient explanations without specific evidentiary support.

The application for judicial review was allowed, and mandamus was granted compelling a decision within 90 days.

The applicants, citizens of China, sought judicial review of a decision refusing their application for permanent residence on humanitarian and compassionate grounds.

The applicants argued that the officer failed to properly consider the best interests of their Canadian-born children, specifically the hardship they would face in China without a Hukou due to their dual nationality.

The Federal Court found that the officer erred by failing to address this explicit argument.

The application for judicial review was allowed and the matter remitted for redetermination.

The applicant applied for permanent residence and was sent a procedural fairness letter raising concerns about inadmissibility on security grounds under paragraph 34(1)(d) of the Immigration and Refugee Protection Act.

The concerns stemmed from his previous position as CEO of a company that had been listed on international sanctions lists.

The applicant provided submissions explaining that the company's listings in the EU and UK had been reversed after it made submissions.

The visa officer found the applicant inadmissible but failed to address the reversal of the listings in the reasons.

The Federal Court found the decision unreasonable because the officer failed to engage with important evidence that contradicted the conclusion reached.

The application for judicial review was granted and the matter remitted for redetermination.

The applicant, a citizen of China, applied for a temporary resident visa but failed to disclose previous criminal charges on her application, marking the third time she had omitted this information on immigration forms.

An immigration officer found her inadmissible to Canada under section 40(1)(a) of the Immigration and Refugee Protection Act for misrepresentation.

The applicant sought judicial review, arguing the officer failed to adequately explain how the misrepresentation could induce an error in the administration of the Act and erred in not exercising discretion based on her personal circumstances as a victim of abuse.

The Federal Court dismissed the application, holding that the officer's decision was reasonable given the applicant's concession of the misrepresentation and its materiality, and that the officer reasonably declined to exercise discretion to overlook the misrepresentation.

The applicants, citizens of India, applied for work permits and failed to disclose prior US visa refusals in their applications.

The visa officer found them inadmissible for five years for misrepresentation under section 40 of the Immigration and Refugee Protection Act.

The applicants applied for judicial review, arguing their omission was unintentional or that they did not see the specific question.

The Federal Court found the officer's decision was reasonable as the applicants failed to overcome the concerns raised in a procedural fairness letter.

The application for judicial review was dismissed.

The applicant sought judicial review of an officer's decision denying her application for permanent residence from within Canada on humanitarian and compassionate grounds.

The Federal Court allowed the application, finding the officer's decision unreasonable.

The officer improperly used the applicant's lack of immigration status to minimize her establishment in Canada and failed to properly engage with the best interests of her Canadian-born child.

The applicant applied for permanent residence under the Quebec investor class.

The visa officer refused the application, concluding the applicant did not intend to reside in Quebec.

The applicant sought judicial review.

The Federal Court held that the officer breached procedural fairness by failing to disclose specific concerns about the applicant's intent to reside in Quebec prior to or at the outset of the interview.

The Court also found the officer's decision unreasonable for placing undue weight on the applicant's daughters' educational choices outside of Quebec.

The application for judicial review was granted.

The Minister applied for judicial review of an Immigration Appeal Division (IAD) decision finding the respondent, a former Moldovan police officer, not inadmissible to Canada.

The Minister alleged the respondent was inadmissible under s. 35(1)(a) of the Immigration and Refugee Protection Act due to widespread torture by the Moldovan police, constituting a crime against humanity.

The IAD held that under the Rome Statute and the Crimes Against Humanity and War Crimes Act, a crime against humanity requires a "State or organizational policy," which was absent here.

The Federal Court dismissed the application, finding the IAD reasonably concluded that the policy requirement displaced earlier Supreme Court of Canada jurisprudence (Mugesera) that pre-dated the Rome Statute.

The applicants applied for judicial review of a decision by the Refugee Appeal Division (RAD) upholding the rejection of their refugee protection claims.

The RAD had found the applicants lacked credibility based primarily on discrepancies in threatening letters provided.

The Federal Court granted the application for judicial review, finding the RAD's credibility assessment unreasonable as it improperly imputed the adult daughter's errors to the principal applicant.

The Court found the RAD failed to properly assess other corroborating documents and failed to conduct an independent section 97 risk assessment.

The matter was remitted for redetermination.

The applicant sought judicial review of an Immigration Appeal Division decision denying an appeal of an exclusion order made on humanitarian and compassionate grounds.

The exclusion order resulted from a finding of misrepresentation relating to the applicant's permanent residency status and involvement with a fraudulent immigration consulting scheme.

The Federal Court found that the tribunal made cumulative factual errors, including findings about a signed blank form and medical prognosis, which rendered the decision unreasonable.

The application for judicial review was granted.

The applicants, a mother and her three minor children, sought judicial review of a Refugee Appeal Division (RAD) decision rejecting their refugee claims.

The principal applicant claimed a fear of persecution from her abusive husband in Bangladesh and Pakistan.

The RAD upheld the RPD's finding that the principal applicant did not face a serious possibility of persecution in Pakistan and that the minor applicants were not at risk in Bangladesh.

The applicants argued the RAD breached procedural fairness by raising new issues without notice and erred in its assessment of the minor applicants' risk.

The Federal Court found that the RAD did not raise new issues but merely reviewed the evidence on issues already raised by the applicants.

The Court also held that the RAD's assessment of the minor applicants' claims was reasonable.

The application for judicial review was dismissed.

The applicant sought judicial review of an immigration officer's decision denying her application for a work permit.

The officer found that the applicant had limited ties to Pakistan and had familial pull factors in Canada, and questioned why she would leave a higher-level management job in Pakistan for a lower-level position in Canada.

The Federal Court allowed the application, finding the decision unreasonable because the officer failed to consider the applicant's detailed explanation that the job would provide international experience beneficial to her career in Pakistan and unreasonably ignored significant evidence of her familial ties to Pakistan.

The applicant, a citizen of Mexico, sought judicial review of a Canada Border Services Agency (CBSA) Border Services Officer's decision to cancel his electronic travel authorization (ETA).

During a secondary examination at a port of entry, the Officer found the applicant inadmissible for misrepresentation under paragraph 40(1)(a) of the Immigration and Refugee Protection Act without preparing a subsection 44(1) report.

The Federal Court held that the Officer lacked jurisdiction to make a final admissibility determination and breached procedural fairness by failing to follow the prescribed statutory procedure.

The application for judicial review was allowed, and the matters were remitted for redetermination.

The appellant appealed a Notice of Proposal by the Registrar to apply conditions to his registration as a motor vehicle salesperson.

The Registrar sought to impose conditions based on the appellant's past conduct and a quashed national security certificate from 2001.

The Licence Appeal Tribunal found that there was no evidence of adverse conduct since 2009 and that the proposed conditions were unwarranted and unreasonable.

The Tribunal directed the Registrar not to carry out the proposal, ordering that no conditions attach to the registration.

Consolidated immigration appeals considered whether inadmissibility for people smuggling under s. 37(1)(b) of the Immigration and Refugee Protection Act captures all assistance to undocumented migrants or is limited by organized transnational criminality and material benefit.

The Court held the provision applies only where conduct furthers illegal entry for direct or indirect financial or other material benefit in the context of transnational organized crime.

Humanitarian and mutual aid, including assistance among asylum-seekers in collective flight to safety, does not itself constitute people smuggling under this provision.

The prior inadmissibility determinations were based on an unreasonable statutory interpretation and were remitted for reconsideration on the proper legal test.

The Court dismissed an appeal challenging a refusal of ministerial relief from inadmissibility under s. 34(2) of the Immigration and Refugee Protection Act.

It held that reasonableness is the applicable standard of review for this discretionary decision and accepted an interpretation of national interest focused mainly on national security and public safety, while not excluding other relevant factors.

The Court found the Minister’s reasons intelligible and justified on the evidentiary record, including sustained contact with an organization found to have engaged in terrorism and credibility concerns.

It further held that procedural fairness was satisfied and any legitimate expectations from published guidelines were met.

The Minister’s decision was allowed to stand.