Justices were split on how to interpret a provision of the Immigration and Refugee Protection Act
One of the Immigration and Refugee Board’s appeals divisions has the authority to review an appeal by a woman with an expired permanent residency visa, the Supreme Court of Canada ruled in a split decision on Friday.
Setting aside previous judgments, a high court majority said the appeals division’s finding that the Immigration and Refugee Protection Act intended otherwise would lead to “absurd, arbitrary, and adverse consequences.”
The majority said the only reasonable interpretation of the statute in the case is that the woman had the right to appeal her case with the Immigration Appeals Division because she held a valid visa when she entered Canada. The court remitted the case back to the IAD so it could be decided on its merits.
Justice Sheilah Martin wrote the opinion for the majority. Justice Malcolm Rowe dissented in part, while Justices Suzanne Côté and Michelle O’Bonsawin said they would have dismissed the appeal.
The case can be traced back to 2018, when Dorinela Pepa was granted a permanent resident visa as an accompanying dependent of her father. Upon entering Canada from Albania, an immigration officer asked Pepa about her marital status. She disclosed that she had married someone a few weeks earlier without telling her father, who had handled all her immigration paperwork.
Because Pepa changed her marital status without reporting the change to immigration authorities, she was denied permanent resident status. However, she was allowed to enter the country for further examination.
Pepa’s counsel pushed for an expedited resolution of her case, but the IRB did not hear her case until after her permanent resident visa had expired. The tribunal ordered Pepa to leave Canada, where her immediate family lives, rejected her bid to become a permanent resident, and banned her from entering the country for five years.
Pepa appealed the tribunal’s decision to the IAD. However, the appeals division said it did not have jurisdiction to review the tribunal’s order because Pepa's visa had expired by the time it was issued.
A federal court ruled that the IAD could reasonably conclude that it did not have jurisdiction to hear Pepa’s case. The Federal Court of Appeal agreed.
The SCC allowed Pepa’s appeal. The majority agreed that the FCA was correct to use a reasonableness standard to assess the IAD’s interpretation of the Immigration and Refugee Protection Act and its application to Pepa’s case. However, the majority rejected the FCA’s finding that the IAD reached a reasonable conclusion, writing that the appeals division’s reasons “lack internal rationality and demonstrate a failure of justification, based on the relevant precedents, the applicable principles of statutory interpretation, and the potential impact of the decision” on Pepa.
The majority said the IAD relied on cases “that were either decided under a different and outdated provision, were not on point and concerned other matters, or were not binding upon it to begin with.”
They said that because the case law it relied on was insufficient, the IAD should have conducted a statutory interpretation analysis of the Immigration and Refugee Protection Act. This entails factoring in the statute's grammatical and ordinary meaning, Parliament’s intention, and the context in which the law operates.
While s. 63(2) of the statute states that a “foreign national who holds a permanent resident visa may appeal” a removal order against them with the IAD, the statute does not stipulate the specific time when the appellant has to hold an unexpired visa. Statutory interpretation is necessary to clarify this ambiguity.
“On a robust review, it is not reasonable to conclude, without clear wording or a compelling justification, that Parliament intended that a person could lose their right to appeal before any hearing on the merits took place and before any removal order was issued,” the majority wrote. “The burden of justification to establish that Parliament wanted a person to lose their right of appeal due to scheduling delays or as a result of the normal timeline of further examinations extending beyond the visa’s expiry date would be very high.”
The majority noted that under its landmark 2019 decision in Canada v. Vavilov, “individuals are entitled to greater procedural protection when the decision in question involves the potential for significant personal impact or harm.” The IAD should have given more consideration to the impact of its decision on Pepa, which included separating her from her family and barring her from entering Canada.
The majority concluded that the only reasonable interpretation of s. 63(2) is that a foreign national has the right to appeal to the IAD if they held a permanent resident visa when they arrived in Canada.
In his partial dissent, Rowe said while he agreed with the majority that the IAD’s decision was unreasonable, he disagreed that there is only one reasonable interpretation of s. 63(2). Rowe said he would have remitted the case back to the IAD to reconsider whether it has jurisdiction over Pepa’s case.
In Côté and O’Bonsawin’s dissent, the justices wrote that they would have dismissed Pepa’s appeal. Like Rowe, they disagreed with the majority that there is only one reasonable interpretation of s. 63(2).
“We agree with our colleague Rowe… as well as the respondent’s submissions, that this interpretation unnecessarily risks opening the door to absurd consequences in relation to the legislative scheme that our court cannot contemplate,” the justices said.
In a statement, Mary Lam, a sole practitioner who represented Pepa with Waldman & Associates partners Lorne Waldman and Steven Blakey, told Canadian Lawyer the majority decision sets aside “the IAD’s extremely narrow construction of its s. 63(2) appellate jurisdiction.
“In so doing, the Supreme Court has affirmed the right of a person who holds a permanent resident visa at the time of their arrival will have access to a fulsome legal and equitable right of appeal.”
Lam said that the majority’s approach to reasonableness review represents a “victory for the rule of law.”
She added, “The court’s decision will help to ensure that administrative decision-makers adopt a more thoughtful and purposive approach to interpreting their governing statutes.”
Julie Lafortune, a spokesperson for Immigration, Refugees and Citizenship Canada, told Canadian Lawyer, "We are reviewing the Supreme Court of Canada’s decision and its impacts."
Editor's Note: This story has been updated with a comment from an Immigration, Refugees and Citizenship Canada spokesperson.
