THE IRB & FC PRACTICE ISSUE
Selected analysis of IRB & Federal Court jurisprudence, legislation & IRCC policy. Edited by Gordon Scott Campbell, Barrister; compleximmigration.ca.
NEW & NOTABLE RUNWAY
Minister's Request for Postponement of Hearing Denied - Federal Court Upholds IAD Refusal - Burden on Minister to Prove Management Allocation of Resources Reasonable
Where a spousal sponsorship refusal had resulted in an almost five year process after the date of marriage to get before the IAD of the IRB, the IAD refused the Minister's request for a postponement, finding the Minister "must show that not only did it claim not to have available resources or hearing officers, but also that is had no reasonable alternative other than postponement."
Not All Hearsay Admissible in Citizenship or Immigration Proceedings - CAIPS Notes Inadmissible Without Affidavit For Statements
The court noted that one must "distinguish[...] notes assessing a written application from notes recording statements at an interview ... an oral interview constitutes an investigation, and the resulting notes describe evidence from the interview without any collateral guarantee of authenticity ... a declarant may be motivated to record details from the interview in a manner that supports his or her own conclusions."
Federal Court Has Authority to Issue Directed Verdicts of Citizenship - Citizenship By Descent Not Question of Ministerial Discretion But Rather Right
"The language at s. 3 of the [Citizenship] Act is declaratory: once the requirements ... are met, the person is a citizen, irrespective of Ministerial action. Thus, if the Applicant's grandfather was employed 'in or with' the federal public administration - which is not a question of discretion, but rather one of fact - then the Applicant is a citizen. As such, the issuance of a directed verdict in the case at bar does not impinge on Ministerial discretion."
STAT & POLICY INTERP COLUMN
As many may already be aware, challenging immigration decisions is more about "judicial review" (JR) than "appeal." There are a few rights of appeal provided for in the Immigration and Refugee Protection Act, but often you're stuck with no option but to seek "leave" (permission) to bring a JR application to the Federal court.
Life is much more simple with appeals. You can always argue error of law, sometimes error of mixed fact and law, and occasionally even error of fact. With JRs, the courts have fallen into an abyss of disagreement over "standard of review" and whether that standard is "reasonableness" or "correctness." The Supreme Court of Canada's decision of Dunsmuir v. New Brunswick, 2008 SCC 9 is largely responsible for the mess. It's now been cited (according to CanLII) by 14,337 other cases!
If you don't see much of a difference between "reasonableness" and "correctness," you're not alone. I've been trying to reconcile the two terms for years, including why there is even a distinction, and I just don't get it. Even the Chung case (2018 FC 238) already cited in this report found: "As with many judicial reviews, the shifting sands of standard of review almost overcome the real issues in dispute."
So no need to obsess over your burden to meet in challenging an immigration decision, rather just focus on getting the forum to challenge it in correct: submissions directly to the Minister, process within the Immigration and Refugee Board, or JR to Federal Court will always be the main options.
RETRO CASE CORNER
Potential Foreign Hardship Can Be Considered For Any Removal Order, Not Just Refugee Matters
"The I.A.D. is entitled to consider potential foreign hardship when exercising its discretionary jurisdiction ... the onus is on the individual facing removal to establish exceptional reasons as to why they should be allowed to remain in Canada."
Chieu v. Canada (Minister of Citizenship and Immigration, 2002 SCC 3