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Federal Court - Appeals - Certification of Question. Mason v. Canada (Citizenship and Immigration)
In Mason v. Canada (Citizenship and Immigration) (SCC, 2023) the Supreme Court of Canada considered (and allowed) a further appeal of an initially-allowed JR of a decision of the Immigration and Refugee Board of Canada (Immigration Appeal Division). The Federal Court of Appeal (Stratas JA writing, but here reversed) interpreted s.34(1)(e) of the Immigration and Refugee Protection Act ['engaging in acts of violence that would or might endanger the lives or safety of persons in Canada'] to not require a 'national security' nexus when applying it's immigration inadmissibility provision.
In these quotes the court considers the 'serious question of general importance' JR certification criteria [here, in IRPA s.74(d) but the case also cites similar certification provision]:[49] To begin with, it is obvious that the Federal Court’s decision to certify a serious question of general importance under s. 74(d) does not affect the standard of review to be applied by the Federal Court itself on the application for judicial review under s. 72(1) of the IRPA. The Federal Court does not certify the question until it is rendering its judgment on the application for judicial review. Section 74(d) 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”. In effect, the certified question procedure plays a gatekeeping role by requiring the matter to meet a threshold of importance to merit an appeal to the Federal Court of Appeal. As this Court has stated, the certified question “may be the ‘trigger’ by which an appeal is permitted”, but the “subject of the appeal is still the judgment itself, not merely the certified question” (Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909, at para. 44, citing Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 12). Thus, the certified question regime does not amount to “rare and exceptional circumstances” in which the Federal Court applying reasonableness review would undermine legislative intent or the rule of law in a manner analogous to the existing correctness categories (Society of Composers, at paras. 27 and 41). . Obazughanmwen v. Canada (Public Safety and Emergency Preparedness)
In Obazughanmwen v. Canada (Public Safety and Emergency Preparedness) (Fed CA, 2023) the Federal Court of Appeal considers an appeal of a JR against an IRPA s.44(2) ['Referral or removal order'] referral for an admissibility hearing (made by a 'Minister's delegate') on grounds of IRPA s.36(1)(a) (serious criminality) and s.37(1)(a) (organized criminality).
This quote addresses criteria for certifying a question on appeal:[28] It is well established in the jurisprudence of this Court that a question cannot be certified unless it is serious, dispositive of the appeal and transcends the interests of the parties. It must also have been raised and dealt with by the court below, and it must arise from the case rather than from the judge’s reasons. Finally, and as a corollary of the requirement that it be of general importance pursuant to section 74 of the IRPA, it cannot have been previously settled by the decided case law: see Liyanagamage v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1637 (QL) at para. 4; Mudrak v. Canada (Citizenship and Immigration), 2016 FCA 178 at para. 36; Lewis v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at paras. 36, 39 (Lewis).
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