Strategic Insights on Appeals vs. Judicial Reviews for Practitioners

John, a Canadian citizen in his fifties, eagerly anticipated reuniting with his daughter from Australia. His excitement turned to dismay when an immigration officer refused his sponsorship application. The reason? John had not declared his daughter in a previous immigration application, making her ineligible as a family member. Unfortunately, this left John confused and disappointed. Now, he had to choose between appealing the decision or seeking a judicial review. John weighed his options carefully, understanding the importance of each step in reuniting his family in Canada. Consequently, he seeks guidance from a professional.

Defining appeals and judicial reviews

Appeals allow you to request the Immigration Refugee Board of Canada (IRB) reverse or amend the decision of a previous decision-maker. Sometimes, they may reopen a refused application and return it to the previous decision-maker. Generally speaking, two divisions of IRB deal with appeals.

• The Immigration Appeal Division (IAD) handles immigration appeals under sections 62 to 71 of IRPA.
• The Refugee Appeal Division (RAD) deals with the Refugee Protection Division (RPD) decisions. Of course, they handle the cases under the authority of sections 110 and 111 of IRPA.

On top of IRB, the following entities may deal with immigration and refugee appeals from time to time. However, their involvement is rare. Therefore, the rest of this article does not focus on the appeals decided by these two entities.

• The Federal Court of Appeal (FCA) may accept an appeal of a decision by the Federal Court (FC) if the FC judge has certified a question for the appeal. Of course, these come from section 27 of the Federal Court Act and paragraph 74(d) of IRPA.
• The Supreme Court of Canada (SCC) may accept an appeal of a decision by FCA. The Supreme Court Act details such appeals, especially sections 40 to 43. Of course, appeals to SCC are rare. However, they could lead to significant decisions such as Baker v. Canada, Canada v. Vavilov, and Tran v. Canada.

Judicial reviews (JR) allow you to ask the Federal Court to review the reasonableness of a decision made by an immigration decision-maker. The original decision-maker could be an IRCC officer, a CBSA officer, an IRB member, or, in exceptional situations, a court of a province. Consequently, the typical outcome of judicial review is not the reversal of the decision. However, if the judge allows the JR, they will reopen the case and return it to the decision-maker. The Federal Court, in this context, acts under the authority of sections 72 to 75 of IRPA and the Federal Court’s Citizenship, Immigration and Refugee Protection Rules.

The similarities and differences between appeals and judicial review

The following table briefly compares immigration appeals and judicial reviews. However, I deliberately left out FCA and SCC decisions as they are in a different realm and uncommon.

As you can see, there are many benefits in appeals. Therefore, if you have the right to appeal, you should try it first. Moreover, paragraph 72(2)(a) of IRPA prevents you from a judicial review if you have the right to appeal. However, there is a twist to this approach that I’ll discuss later in this article.

When do you have the right to appeal?

You have the right to appeal these circumstances. Again, I have left out the FCA and SCC appeals here.

Section 63 – Immigration Appeal Division (IAD) Appeals:

• Visa Refusal for Family Class (Section 63(1)): A sponsor can appeal to the Immigration Appeal Division (IAD) if their application to sponsor a family member for permanent residency is refused.
• Visa and Removal Order (Section 63(2)): A foreign national holding a permanent resident visa can appeal to the IAD against a removal order made under subsection 44(2) or during an admissibility hearing.
• Removal Order for Permanent Residents or Protected Persons (Section 63(3)): Permanent residents or protected persons may appeal to the IAD against a removal order issued under subsection 44(2) or at an admissibility hearing.
• Residency Obligation (Section 63(4)): As per section 28, permanent residents can appeal to the IAD against decisions made outside Canada concerning their residency obligation.
• Right of Appeal by Minister (Section 63(5)): The Minister of Immigration has the right to appeal to the IAD against decisions made by the Immigration Division during an admissibility hearing.

Section 110 – Refugee Appeal Division (RAD) Appeals:

• Refugee Protection Decisions:
  • Individuals can appeal to the RAD if the Refugee Protection Division (RPD) has refused their claim for refugee protection, except in cases where the decision is based on the claim being manifestly unfounded or having no credible basis.
• Minister’s Appeals:
  • The Minister can appeal the RPD’s decisions on refugee protection claims, including decisions granting refugee protection.

When you do not have the right to appeal

It’s important to note that not all immigration decisions are subject to appeal. For instance, decisions made under Express Entry or most economic immigration programs do not have a right of appeal to the IAD. Generally speaking, if IRPA does not mention the right to appeal under A62-71 or A110-111, you do not have this right. Furthermore, you do not have the right to appeal in the following circumstances.

Immigration Appeals

1. Exclusion for Serious Criminality (IRPA Section 64):
   • Individuals who are inadmissible to Canada due to serious criminality do not have the right to appeal their removal orders to the Immigration Appeal Division (IAD).
2. Security, Human Rights Violations, and Organized Criminality (IRPA Section 64):
   • No right of appeal exists for individuals inadmissible on the grounds of security, violating human or international rights, or organized criminality.
3. Misrepresentation (IRPA Subsection 64(3)):
   • You may not appeal under subsection 63(1) against a decision if it is grounded on a finding of inadmissibility due to misrepresentation. However, this restriction does not apply if the foreign national involved is the spouse, common-law partner, or child of the sponsor.
4. H&C limitations (IRPA Section 65):
   • For appeals concerning applications under IRPA subsections 63(1) or (2), the Immigration Appeal Division’s scope to consider Humanitarian and Compassionate grounds is limited. H&C considerations are only permissible if the Division confirms the appellant’s family class membership and the sponsor’s regulatory compliance. Thus, H&C factors hinge on these preliminary validations.

Refugee Appeals

1. Designated Foreign Nationals (IRPA Section 110(2)(a)):
   • No appeal for decisions allowing or rejecting refugee protection claims of designated foreign nationals.
2. Withdrawn or Abandoned Claims (IRPA Section 110(2)(b)):
   • No appeal for determinations that a refugee protection claim has been withdrawn or abandoned.
3. Claims with No Credible Basis or Manifestly Unfounded (IRPA Section 110(2)(c)):
   • There is no appeal for decisions rejecting refugee claims that are stated to have no credible basis or are manifestly unfounded.
4. Safe Third Country Cases (IRPA Section 110(2)(d)):
   • There is no appeal for claims if the claimant came to Canada directly or indirectly from a country that is a safe third country as designated by regulations, and their claim is not ineligible to be referred to the RAD.
5. Designated Country Nationals (IRPA Section 110(2)(d.1)):
   • No appeal for decisions on refugee claims made by nationals of countries designated under subsection 109.1(1) on the day the decision was made. Notably, IRCC ended the practice of designating countries of origin in May 2019.
6. Cessation Applications (IRPA Section 110(2)(e)):
   • No appeal for decisions allowing or rejecting applications by the Minister for a determination that refugee protection has ceased.
7. Vacation Applications (IRPA Section 110(2)(f)):
   • There is no appeal of the Minister’s decision to allow or reject an application to vacate a decision to allow a refugee protection claim.

Can I skip the appeal and go for a judicial review directly?

The text of paragraph 72(2)(a) of the Act:

• The application may not be made until any right of appeal that may be provided by this Act is exhausted.

In other words, you may only file a judicial review application if you do not have the right to appeal. A prominent 2010 FCA decision, Somodi v. Canada, emphasizes the importance of exhausting all rights to appeal before seeking judicial review in cases related to family-class immigration applications in Canada. However, sometimes the matter becomes complicated.

An enticing scenario to file for JR instead of an appeal

Imagine a person has not declared their family members in a previous PR application. They later sponsor them in Canada. However, paragraph 117(9)(d) of the regulations excludes this relationship. In other words, under IRPR, the family members are not family members for sponsorship. Therefore, the sponsor requests the approval of the application on humanitarian and compassionate grounds. The officer reviews the application and refuses their request. Can they appeal the decision?

We have the right to appeal under subsection 63(1) of the IRPA. However, the regulations clearly state that the applicant is not a family member. On the other hand, section 65 of the IRPA clearly says the IAD may not consider H&C. Consequently, despite having the right to appeal, it is extremely unlikely we will win the case. We may lose the case because the IAD lacks jurisdiction. The person is not a family member, and they may not consider H&C factors.

Phung v. Canada might have the answer.

In a 2012 decision by the Federal Court, Phung v. Canada, we have an answer to this question. In this scenario, the principal applicant, sponsored by her husband, did not disclose her son from a prior relationship. This omission resulted in the son being excluded from the family class under paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations. The applicants sought an exemption based on H&C grounds under section 25 of IRPA, but the immigration officer deemed these grounds insufficient to overcome the son’s inadmissibility.

In its decision, the court acknowledged that the principal applicant’s right of appeal to the Immigration Appeal Division (IAD) under subsection 63(1) of IRPA was effectively inconsequential. The IAD’s inability to consider H&C grounds unless the foreign national is acknowledged as a family member rendered any potential appeal futile, especially since the son was explicitly excluded from the family class by paragraph 117(9)(d).

Consequently, the court permitted the application for judicial review, underlining that when applicants have made substantial H&C submissions, the general requirement under paragraph 72(2)(a) of IRPA to exhaust all rights of appeal before seeking judicial review does not limit the Court’s authority to review the officer’s evaluation of H&C factors. The ruling suggests that insisting on the exhaustion of the right to appeal in such cases, where the appeal outcome is predetermined, would be an unnecessary expenditure of time and resources and deprive the applicants of a meaningful remedy.

This case sets a precedent, indicating that when R117(9)(d) applies, and considerable humanitarian and compassionate considerations are at stake, it is possible to proceed directly with a judicial review, bypassing the usual requirement to exhaust the right of appeal.

A case that contradicts Phung v. Canada

The decision in “Habtenkiel v. Canada” does not align with the precedent set in “Phung v. Canada.” In “Habtenkiel v. Canada (Citizenship and Immigration), 2013 FC 397 (CanLII), [2014] 3 FCR 465,” the Federal Court took a different stance regarding the process to be followed when an individual is not considered a member of the family class due to the provisions of paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations. This decision suggests that even if the IAD appeal may seem procedurally inefficient or predetermined in such cases, it is a necessary step before seeking judicial review.

However, they appealed the decision. The Federal Court of Appeal in “Habtenkiel v. Canada (Citizenship and Immigration), 2014 FCA 180 (CanLII), [2015] 3 FCR 327” concluded that an applicant who is excluded from the family class due to paragraph 117(9)(d) of the Regulations is not precluded from seeking judicial review before exhausting their right of appeal to the Immigration Appeal Division. This decision aligns with the approach taken in “Phung v. Canada,” providing clarity on the rights of applicants in similar circumstances to seek judicial review directly, especially in matters involving humanitarian and compassionate grounds.

Appeal or no appeal? Navigating the dilemma

In the wake of FCA cases Habtenkiel v. Canada and Somodi v. Canada, we could conclude:

• If there is a right to appeal, then go for it. Without exhausting this right, you may face the dismissal of the Judicial Review application.
• Sometimes, you are certain your client has zero chance of succeeding at the IAD level. Consequently, you may either go directly for a JR application or consider concurrent applications for appeal and judicial review. In the case of Somodi, although they lost their JR application, they won their concurrent appeal.
• If you are not an immigration lawyer, please ensure your client discusses the potential for JR with an immigration lawyer. These cases are complicated. Immigration consultants or paralegals lack the tools to offer their clients the best advice in such circumstances. Moreover, section 119 of the Federal Court Rules precludes RCICs and paralegals from offering representation in Federal Court matters.

Let me help!

If you are an RCIC who needs help with an immigration or refugee appeal, please book a mentorship session with me. For judicial review cases, consult with a competent lawyer. If you are an end user who needs immigration advice, please book a consultation session or fill out the following form.