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Immigration - Judicial Review (JR)

. 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”". ...

....

[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 : "

"... "

"[...] "

"(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.


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Last modified: 10-10-24
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