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Federal Court - Appeals - Certification of Question. Nanhar v. Canada (Citizenship and Immigration)
In Nanhar v. Canada (Citizenship and Immigration) (Fed CA, 2024) the Federal Court of Appeal quashed an appeal of a denial of IRPA s.72(1) "leave to commence an application for judicial review of a decision of the Refugee Appeal Division of the Immigration and Refugee Board." Section 72(2)(e) of the IRPA expressly "provides that no appeal lies from a decision of the Federal Court made under subsection 72(1) of the IRPA for leave to commence an application for judicial review":[2] ... The Crown, in its letter dated September 12, 2024, stated that there was no statutory basis for the appellant’s appeal because "“[n]o question of general importance was certified”". ...
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[4] As noted by this Court in Mahjoub v. Canada (Citizenship and Immigration), 2011 FCA 294, (Mahjoub) at paragraphs 7 and 8 and in HD Mining International Ltd. v. Construction and Specialized Workers Union, Local 1611, 2012 FCA 327, at paragraph 14, the right of appeal granted under the Federal Courts Act, R.S.C. 1985, c. F-7, may be barred by other statutes. Paragraph 72(2)(e) of the IRPA is a provision that bars what would otherwise be a right of appeal to this Court.
[5] The reference to a certified question in the Crown’s letter of September 12, 2024 is related to paragraph 74(d) of the IRPA:"74 Judicial review is subject to the following provisions: "
"74"" Les règles suivantes s’appliquent à la demande de contrôle judiciaire : "
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"(d) subject to section 87.01, an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the judge certifies that a serious question of general importance is involved and states the question. "
"d"") sous réserve de l’article 87.01, le jugement consécutif au contrôle judiciaire n’est susceptible d’appel en Cour d’appel fédérale que si le juge certifie que l’affaire soulève une question grave de portée générale et énonce celle-ci. " [6] Paragraph 74(d) of the IRPA provides that a judgment of the Federal Court rendered on an application for judicial review may only be appealed to this Court if, in rendering that judgment, the Federal Court Judge certifies that a serious question of general importance is involved and states the question (paragraph 74(d) of the IRPA). However, since leave to commence the application for judicial review was not granted in this case, there was no judgment rendered on the application for judicial review. As noted by the Supreme Court of Canada in Mason v. Canada (Citizenship and Immigration), 2023 SCC 21:The Federal Court does not certify the question until it is rendering its judgment on the application for judicial review. [7] The applicable bar to the right of appeal, in this matter, is the prohibition on an appeal as set out in paragraph 72(2)(e) of the IRPA. As a result of this prohibition on appealing the Order dismissing the appellant’s application for leave to commence an application for judicial review, the appellant’s appeal is not properly before this Court.
[8] This Court noted in Mahjoub, in paragraph 10, that certain limited exceptions to a statutory bar on an appeal have been accepted, namely, where the Federal Court has refused to exercise its jurisdiction and to decide a case or where there is a reasonable apprehension of bias on the part of the judge. Neither of these limited exceptions are alleged by the appellant in this case. . 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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