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Immigration - Appeal Routes. Pepa v. Canada (Citizenship and Immigration)
In Pepa v. Canada (Citizenship and Immigration) (Fed CA, 2023) the Federal Court of Appeal sets out the extensive immigration appeal/JR route for someone fighting a removal order:[1] In March 2018, the appellant, Dorinela Pepa, then aged 20, came to Canada while in possession of a permanent resident visa as an accompanying dependent child of her father. However, after the visa was issued, and before she came to Canada, the appellant married. On her arrival in Canada, she advised the point of entry officer of her marriage. Because of the change in her circumstances, the appellant was admitted for further examination and was not landed. Her visa had a September 16, 2018 expiry date.
[2] A further examination occurred on April 6, 2018, followed by two reports under section 44 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA]. An admissibility hearing before the Immigration Division of the Immigration and Refugee Board (ID) commenced on September 25, 2018, but reconvened on October 16, 2018, after receipt of further submissions from the parties. At the conclusion of the hearing, the ID issued an exclusion order against the appellant listing her as a foreign national inadmissible for misrepresentation under paragraph 40(1)(a) of the IRPA.
[3] Subsection 63(2) of the IRPA states "“[a] foreign national who holds a permanent resident visa may appeal to the Immigration Appeal Division against a decision to make a removal order against them made under subsection 44(2) or made at an admissibility hearing.”" An exclusion order is a form of removal order: section 223 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227.
[4] Although the appellant appealed the ID’s decision to the Immigration Appeal Division of the Immigration and Refugee Board (IAD), the IAD concluded that she had no right to appeal under subsection 63(2) because, when the removal order was issued, her visa had expired and so was no longer valid. As a result, the IAD determined it lacked jurisdiction to consider an appeal. In doing so, the IAD relied primarily on Ismail v. Canada (Citizenship and Immigration), 2015 FC 338 [Ismail] and two earlier IAD decisions.
[5] The appellant then applied to the Federal Court for judicial review of both the removal order and the IAD’s decision. The Federal Court (2021 FC 348 per Roussel J.) dismissed both applications.
[6] The Federal Court concluded that the ID had not breached the appellant’s right to procedural fairness and the ID’s decision to issue a removal order was reasonable. Because the Federal Court declined to certify a question under paragraph 74(d) of the IRPA with respect to that application, the ID’s decision is not the subject of an appeal in this Court.
[7] This appeal concerns the judicial review of the IAD decision and comes to this Court by way of the following certified question for appeal under paragraph 74(d) of the IRPA:For the purposes of determining its jurisdiction to hear an appeal pursuant to subsection 63(2) of the IRPA, shall the validity of the permanent resident visa be assessed by the IAD at the time of arrival in Canada, at the time the report under subsection 44(1) is made, at the time it is referred to the ID, as the case may be, or at the time the exclusion order is issued?
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