See You in Court: Federal Court of Appeal & Federal Court Essentials

Mario D. Bellissimo*

INTRODUCTION

Anyone who has appeared before the Federal Court of Appeal and the Federal Court on an immigration1 matter appreciates the experience can be exhilarating, humbling, and challenging. Each year issues and questions will be decided by some of the finest legal minds in our country as the jurisprudential and legislative evolution of the IRPA continues.

A refusal of a case may mean many things to a practitioner. For your clients it may mean dreams delayed and hopes sometimes crushed. A refusal is an unpleasant fact of life in the practice of immigration law. Immediate steps after a refusal are essential to preserve a client’s rights. But before looking to the Courts we must ask was the refusal fair? Will the record withstand the close scrutiny of a Federal Court proceeding? Once these questions have been addressed the file must be triaged.

TRIAGE OF A FILE – 5 STEPS

1. THE REFUSAL: Take a breath and read the refusal letter closely. Then put it down and read it again in an hour or two. Ensure it relates to your client: cross reference client ID numbers and names and ensure that dates make sense. Look to see if you can find any errors of law or fact. Is a re-consideration possible? If you do not have full reasons request same immediately.

2. TIME LINE/LIMITATION PERIOD: Quickly identify the nature of the refusal. In land, overseas, citizenship, a misrepresentation? Different time limits apply – 15, 20 or 60 days. This is critical to understanding the timeline under which you are operating.

3. POST FILING FINDING – Was the refusal based upon evidence your client did not share with you? Evidence that has been revealed only in the reasons for refusal?

4. ADVISE CLIENT – Advise the client of the refusal and the areas of concern. Further advise if is this is a case wherein you will be handling the appeal or sending it out to a specialist. Timelines, potential errors and costs can be canvassed in a preliminary manner.

1 The term immigration is used as an all encompassing term to include citizenship, immigration and protected persons’ litigation.

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5. COMPLETE FILE – If inheriting the file ensure you have a full and complete record including submissions, supporting documentation and correspondence. Step 5 is best satisfied if the ten filing steps below are followed.

BEFORE THE COURT – 10 TIPS

Regardless of the ultimate disposition on a file it is best to utilize the following as safeguards:

Key Prepatory Steps

1. TABLE OF CONTENTS: When preparing submissions include a detailed table of contents of the enclosures, numbering the corresponding pages (either in your submission letter or separately, including supporting documents) and identifying the same pages in your table of contents. A litigator and the Courts appreciate a well prepared and organized application package. It also ensures when Citizenship & Immigration Canada (CIC) or the Canada Border Services Agency (CBSA) to name but two, vets the file you are in a position to cross reference with your own records.

2. PROVIDE THE FULL FILE: Always provide the litigator with a copy of the entire file, including all opposing disclosure, i.e.: failed refugee claims: the Refugee Protection Division for example is oftentimes using updated disclosure packages, POE notes, which are often helpful in extracting points of contention.

3. ATIP REQUESTS: Make it a habit to order a few “Access to Information & Privacy Requests” (ATIP) as these are especially helpful in litigation. With files taking years to process this information will be updated so one request may not be sufficient. These allow the Applicant an opportunity to know the case to be met before having to wait to review a respondent’s memorandum. It takes a great deal of time (between 30-90 days) to receive the ATIP packages and this is almost always too long when preparing an application record for Federal Court. Sometimes it is best to just order the CAIPS or FOSS in emergency circumstances as these can be produced much faster than the entire file.

4. DOCKETING FILE: Always follow up any conversations with the Embassy, CIC Office or the Board with letters confirming conversations so as to avoid factual disputes later. Maintain proof of delivery and the correspondence will often make it into CIC or CBSA’s file and be available in the ATIP request as well.

5. INTERVIEWS: Always request in person interviews if an officer is making credibility assessments.

6. CASE LAW: Look to case law for ‘language’ utilized by the Courts to clearly communicate legal arguments in your submissions. These submissions will be readily identifiable to the Courts upon review.

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7. REASONS: Always request full written reasons of the decision maker within your submission.

8. MANAGE EXPECTATIONS: Although not anticipated or desirable, you must have the conversation with your client regarding a potential refusal before a refusal. It at least provides a frame of reference for the client in the case of a negative decision.

9. RECONSIDERATION REQUESTS: Although requests for reconsiderations are often ignored or not considered on refusals, they are not ALWAYS ignored and can save your client the cost of litigation. Although unlikely, still worth the letter.

10. KEEP CURRENT: Know the latest case law in the area you are dealing with to ensure you have the latest interpretation of the law as it affects your client.

FEDERAL COURT FUNDAMENTALS

Now that you have decided your case must proceed to the Federal Court, knowing the jurisdiction of the Court and the fundamentals is a condition precedent to filing.

Powers

The Federal Court cannot change the outcome of a decision by substituting its own decision or by reversing the decision. The powers are of the Federal Court are set out in FCA s. 18.1(3):

(3) On an application for judicial review, the Federal Court may (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or (b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.

When decisions are quashed, the usual order of the Court is to send the matter back to a “differently constituted” tribunal/officer. However there are occasions when the Applicant may wish the matter to go back to the same person(s) who made the original decision.

Leave

Generally, the Immigration and Refugee Protection Act (IRPA) considers Applications for Leave and for Judicial Review (AFL/JR) under Division 8 (Judicial Review). The Immigration and Refugee Protection Regulations (IRPR) considers these topics in Part 20, Division 6 (Court Proceedings).

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It is important to remember that a matter cannot be taken to Federal Court until all rights of appeal have been exhausted, as per Federal Courts Act (FCA) s.72(2)(a).

Application for Leave (AFL)

IRPA, s. 72(2)(b) states that notice of the Application (AFL) must be served on the other party and filed in the Court within 15 days for decisions made in Canada. For decisions made overseas, these steps must occur with 60 days.

Rule 5 of The Federal Court Immigration and Refugee Protection Rules (FC IRP Rules) provides the form and contents of the AFL. The Application must clearly set out: the names of the parties, the date and details of the matter, the name and file number (if any) of the Tribunal, the precise relief being sought, the grounds for the relief being sought, the proposed place and language of the hearing, whether or not the Applicant has received the reasons of the tribunal, and signature, name, address, and telephone number of the lawyer or individual filing. There is a basic template, listed as a Schedule, at the end of the FC IRP Rules.

Rule 8 of the FC IRP Rules states that the Respondent is to serve a Notice of Appearance on the Applicant and the Court, and must file this within 10 days of service of the AFL. This is typically the Minister, but may also be the client, as when the Minister decides that the decision of its officer/board was improper. This is most often seen in decisions of the Immigration Appeal Division.

Applicant’s Application Record (AAR)

Section 18.1(2) of the Federal Courts Act (FCA) reads that the AFL must be perfected within 30 days of the Court having received the AFL. This means that the Applicant has 30 days to submit the Application Record. There is an exception where no reasons have been provided; in this case, an Applicant has 40 days from date of the reasons. It is 40 days further to the FC IRP Rule 9(4) which deems that it takes 10 days to receive mail. This is specifically provided for in FC IRP Rule 10(1)(b).

FC IRP Rule 10(2) provides the form of the AAR. This will, in particular, contain the affidavit (which sets out the Applicant’s experiences and attaches evidence as exhibits) and written argument. It is a very good idea to begin the written submissions with a strong overview, which not only sets out the decision being challenged and the relevant legislation, but also the errors committed and their implications. This should still be very brief - only one paragraph - and is best written after the rest of the argument is complete. This is your summary: one quick statement to explain to the Judge what went wrong and why the Court is needed.

The Affidavit

FC IRP Rule 12 discusses affidavits. Affidavits are to set out facts, and must give details as to the basis of the attack on the decision. They oftentimes summarize the evidence that is

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attached or provide insight into what happened at an interview or hearing. These materials are to be written for the client, so it is important to think about the Applicant’s voice: using highly legal language will not sound like the client and may further mean that the client does not fully understand the document that he or she is swearing.

It is important that only information that was actually presented to the decision maker be set forth in the affidavit. The only exception to this is when making an argument on procedural fairness. In this case, new information and evidence may be attached (i.e., “had the visa officer allowed me to explain, I would have said...” OR “had I been advised that my file was transferred from CPC Vegreville, the supplementary materials would have been sent directly to CPC Scarborough and put before the officer...”).

It is very important to not exaggerate or embellish the affidavit in any way. If the client is not certain that something was said at an interview or hearing, ensure that the affidavit is couched in language indicative of the lack of certainty. At times, when working with a new client at the Federal Court level, their memory of the interview/hearing is not perfect or they explain what they wanted to say not what they actually said. The Minister may, after a transcript has been produced, allege that the client has filed a false affidavit, which will cast doubt on the client’s credibility before the Court. Caution is therefore necessary.

The Written Argument

The FCA, s. 18.1(4) states when the Federal Court will offer relief:

(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; (e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law.

Procedural Fairness

The Argument will always be stronger when errors of law, procedural fairness, or natural justice are at the heart of the argument. Review the reasons, are they adequate? Do they provide sufficient explanation as to why the decision was made? Decisions that merely set out the facts, the jurisprudence, then the conclusion reached are likely inadequate. The

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comments of the Honourable Mr. Justice Stratas of the Federal Court of Appeal (FCA) in Some thoughts on advocacy in judicial review proceedings are noteworthy as it relates to this ground of attack:2

Tribunal decisions supported by inadequate reasons can sometimes be quashed. Some counsel, invoking the generality of the comment in Dunsmuir that decisions must have “transparency,” tend to overuse this potential ground of review. Courts of Appeal have spoken on the matter and they say that the threshold for success on adequacy of reasons may not always be as good a gorund as some might think.

In a recent case with respect to medical inadmissibility, the FCA considered the requirement to have adequate reasons even at the interim phase of the decision: as when a medical officer provides an updated medical opinion to the immigration officer after the response to the procedural fairness letter has been received. The FCA, in Sapru v. Canada (M.C.I.) 2011 FCA 35, pars. 37-43, recently held that there must be sufficient reasons (even if only provided in the CAIPS notes) so that the reasonability of the immigration officer’s reliance on the updated medical opinion can be assessed.

Mixed Fact & Law

Arguments of mixed fact and law are far more challenging, as decision makers will be given a higher degree of deference by the Court. Jurisprudence indicates that in decisions of credibility, the decision maker who met with the client will be in the best position to assess the client: Sittampalam v. Canada (M.C.I.), 2006 FCA 326, [2007] 3 F.C.R. 198, par. 53; Lin v. Canada (M.C.I.), 2008 FC 1052, pars. 13-14. Arguments based on the assessment of credibility are still worth addressing, but it is best if they are addressed in conjunction with another error.

Similarly, arguments over the review of documentary evidence are also accorded a high level of deference. There is a presumption that decision makers have reviewed all the material submitted, so it is important to clearly establish the contrary. There is a strong line of jurisprudence that may be used to corroborate the argument: as when the decision maker ignores evidence directly contrary to the decision reached. In the setting of a refugee hearing, the oft-repeated reasons of the Honourable Justice Evans set forth:

[17] However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the

2 Some thoughts on advocacy in judicial review proceeding, Honourable Mr. Justice Stratas, Law Society of Upper Canada’s conference, The Six-Minute Administrative Lawyer 2011 (Osgoode Hall, Toronto, February 24, 2011), pp 11-12. This paper is also an excellent resource for the listing of available material on drafting and advocacy generally.

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agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration), (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency’s burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.

Cepeda-Gutierrez v. Canada (M.C.I.), 1998 CanLII 8667 (F.C.), pars. 14-17 Medina v. Canada (Citizenship and Immigration), 2008 FC 728, par. 16 Valladeres Low v. Canada (M.C.I.), 2007 FC 256, par. 40

Respondent’s Argument

FC IRP Rule 11 states that the Respondent has 30 days to respond to the AAR. The response is typically only a written argument, but may also include an affidavit. If there is an affidavit, this is typically from the visa/immigration/enforcement officer who made the decision. It may also be used to attach a document not included in the AAR, i.e., in the refugee context, to include some item within the National Documentation Package on which the Panel relied.

If your client is the Respondent, it will be important to carefully review the AAR and see if all of the evidence is in the Record. If it is not, ensure that this is addressed in the affidavit (and if not, seek Leave to file a Supplementary Affidavit) and that evidence is included as an exhibit. This is the client’s only opportunity to put information before the Court prior to the decision for Leave, so take advantage of this opportunity to make sure the Record is complete.

Reply

FC IRP Rule 13 states that an Applicant may file a Reply Memorandum 10 days after receiving the Respondent’s written materials under Rule 11.

OBTAINING LEAVE & FURTHER PLEADINGS

In Wu, the Honourable Justice Reed wrote:

On a leave to commence proceedings, the task is not to determine, as between the parties, which argument will win on the merits after a hearing. The task is to determine whether the applicants have a fairly arguable case, a serious question to be

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determined. If so, then leave should be granted and the Applicants allowed to have their argument heard.

Wu v. Canada (M.E.I.), [1989] 2 F.C. 175 (F.C.T.D.)

The three pieces of written material (AAR, Respondent’s argument, Reply), will then be placed before a Judge who will make a decision on Leave. If Leave is granted, a hearing date will be set down within 30-90 days (usually 90). The time lines for filing additional materials (i.e., affidavits, cross-examination, written arguments) is set forth in the Judge’s Order granting Leave, as per FC IRP Rule 15.

FC IRP Rule 16 states that all materials previously filed remains part of the Record.

FC IRP Rule 17 sets out that the Certified Tribunal Record (CTR) will be provided to all parties. The CTR will contain the original decision or order, evidence filed by the client to the decision maker, conversations between CIC personnel, and a copy of the decision and transcripts, if applicable. It is very important to carefully review the CTR, as oftentimes materials have been omitted or exchanges between CIC personnel bring new information to light. Both of these may have serious implications depending upon the client’s preliminary information.

It could be that the decision was made without regard to certain evidence, but a CIC email will confirm that the evidence was actually received. This is particularly important where the CTR is lacking. This is actually one of the reasons why it is so important to complete an ATIP request, as some of this may be revealed by FOSS/CAIPS notes or within the visa officer/in-Canada files.

If the CTR is incomplete, this raises questions about the information that was actually before the decision maker. It will be important for the Applicant to prove that materials were actually submitted. Ensure that facsimile confirmations and courier receipts are attached to the further affidavit so that there is no doubt in the Judge’s mind that such information was properly filed.

If the transcript provided is different than the original affidavit, this needs to be addressed in the further affidavit. Are the differences unintentional? If you take several sections of the transcript, are the client’s statements in the affidavit confirmed (i.e., not said all at once and/or as convincingly as in the affidavit)? If so, highlight in the further affidavit why the first affidavit was in fact accurate. If not, it is time to have a serious conversation with your client; damage control will have to be part of the further affidavit and counsel may be required to withdraw (i.e., when a client wants to proceed with statements revealed to be inaccurate).

INTERIM & INTERLOCUTORY DECISIONS

Interlocutory decisions are not final decisions, but decisions made in the process of coming to a final decision. For example, in a sponsorship application a finding of the sponsor being

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ineligible is an interlocutory decision as the sponsorship process does not cease at that phase, but may still be transferred to the visa office. At times, it may be important to bring such decisions before the Court on Judicial Review, as that interim decision may have serious implications for the final decision. In that case, if the sponsor was improperly found ineligible, then proceeding to the Court may be worthwhile (although, asking for reconsideration may also resolve this issue). In many cases the appeal will proceed before the Immigration Appeal Division.

As a general rule, Courts are reluctant to review interim decisions before the proceeding as a whole has come to an end. In Zundel v. Canada (Canadian Human Rights Commission), 2000 CanLII 17138 (F.C.), the Court stated that generally, rulings made throughout a proceeding should only be reviewed when jurisdictional issues are in play. In this case, the Court stated:

The rationale for this rule is that such applications for judicial review may ultimately be totally unnecessary: a complaining party may be successful in the end result, making the applications for judicial review of no value. Also, the unnecessary delays and expenses associated with such appeals can bring the administration of justice into disrepute.

However, there will be cases where bringing these cases before the Court on Judicial Review is an advisable step. In Logeswaren v. Canada (M.C.I.), 2004 CanLII 886 (F.C.), the Honourable Mr. Justice Phelan wrote:

[19] While as a general rule interlocutory decisions are not subject to judicial review, largely as a matter of discretion, where the decision at issue is critical to the scope of the final decision and is of sufficient significance, judicial review will be available (see Citizens' Mining Council of Newfoundland and Labrador Inc. v. Canada (Minister of the Environment), [1999] F.C.J. No. 273 (MacKay J.)).

MANDAMUS

A writ of mandamus or simply mandamus, means "we command" in Latin. It is issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly.3 A person can be said to be aggrieved only when he is denied a legal right by someone who has a legal duty to do something and abstains from doing it. The Applicant pleading for the writ of mandamus to be enforced should be able to show that he has a legal right to compel the respondent to do or refrain from doing the specific act. The duty sought to be enforced must have two qualities:

1. It must be a duty of public nature; and

3 Bryan A Garner, Black's Law Dictionary, p. 980, 8th Ed., St. Paul, USA, 2004

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2. The duty must be imperative and should not be discretionary.

Mandamus is a well known principle of administrative law that is available to compel a public body to perform a duty it is obligated to do under its enabling statute, which obligation it has either refused or neglected to perform although requested to do so.4 If an application has been pending longer than processing times provide for, and no action (that is known) has been taken on the file for some time, asking for a decision to be rendered is not inappropriate. First, this request should be made to the decision maker and the decision maker should be warned that the Applicant may seek mandamus and have the opportunity to respond. If there is no response or the response does not satisfy the request, the Applicant may seek relief of the Court.

The Federal Court has original jurisdiction against any Federal Board, Commission, or Tribunal, as per FCA 18(1) (a). For our purposes, this includes over Federal Officers (i.e., visa officers, immigration officers, enforcement officers, etc.). It is important to note that requesting mandamus is still an application for Judicial Review, as per FCA 18(3), unless an Applicant is seeking mandamus on a citizenship application, in which case it is a Notice of Application.

MOOTNESS

Borowski V. Canada (Attorney General) 1989 1 S.C.R 342 explains that mootness is a practice allowing a Court to decline to decide cases that do not involve a live controversy between the parties (such as when the issues at hand have become abstract or academic). This live controversy has to exist both when the application for judicial review is commenced and when the Court is called upon to reach a decision. So, if after an application for judicial review is initiated the live controversy between the parties no longer exists, the case will become moot.

Even if a case is moot, the Court can exercise its discretion to hear the application for judicial review. In Borowski, the Honourable Mr. Justice Sopinka outlined a three prong test for hearing moot cases. The first is the Court’s competence to resolve disputes in an adversarial context. This means that even if the live controversy no longer exists, there may still be an adversarial context that the parties have a stake in, and this may merit consideration by the Court. The second focuses on judicial economy, meaning that the Court should consider whether there are good reasons to apply scare judicial resources to resolve the issue. Here, judicial involvement is weighed against continued uncertainty in the law if the issue is not decided upon. Third, the Court must consider its law-making function and not step into the role of the legislature by making new law when the rights of specific parties are not involved.5

4 Dragan v. Canada (Minister of Citizenship and Immigration) [2003] 4 F.C. 189; 2003 FCT 211; [2003] F.C.J. No. 260 at para. 38 (T.D.) 5 See also, for context: Rahman v. Canada (M.C.I.), 2002 CanLII 137 (F.C.T.)

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In immigration law, judicial reviews of a Pre-Removal Risk Assessment (PRRA) have the potential to become moot as proceeding to the Court does not stay the removal of the Applicant. How serious can the risk of return be if the Applicant has already been returned? The FCA recently set forth in Solis Perez v. Canada (M.C.I.), 2009 FCA 171:

[5] We agree that the application for judicial review is moot, and in particular with the statement made by Martineau J. at paragraph 25 of his reasons where he says:

[…] Parliament intended that the PRRA should be determined before the PRRA applicant is removed from Canada, to avoid putting her or him at risk in her or his country of origin. To this extent, if a PRRA applicant is removed from Canada before a determination is made on the risks to which that person would be subject to in her or his country of origin, the intended objective of the PRRA system can no longer be met. Indeed, this explains why section 112 of the Act specifies that a person applying for protection is a “person in Canada”.

By the same logic, a review of a negative decision of a PRRA officer after the subject person has been removed from Canada, is without object.

Because of the implications of adjudicating the judicial review of a PRRA, it is worth motioning for a stay of removal to ensure that their remains a live issue to be adjudged. If a serious issue can be set forth in the motion record (i.e., the PRRA officer committed significant and material errors), then it is likely that irreparable harm will be made out as the risk of return will not have been properly assessed. However, this is still fact-specific: in Palka v. Canada (M.P.S.E.P.), 2008 FCA 165, the FCA determined that the Applicant would not face irreparable harm should the judicial review of their PRRA application be rendered moot through deportation.

Notably, the judicial review of an H&C application may also become moot (technically, if not legally). Since H&Cs are based on establishment, breaking those connections via removal will harm the persuasive value of the H&C application. H&Cs are also based on the perceived hardship of return. Once returned, the officer will be able to assess whether the Applicant, in fact, suffered such hardship. This is worth highlighting to the Court in seeking to stay the Applicant’s removal, as well as any statistics that can be found as to the success rate of H&Cs being accepted after the Applicant has been removed.

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ESSENTIAL WRITTEN ADVOCACY TIPS - SUMMARY

Affidavit

1. The facts must be communicated in the language of the client. Using highly legal language will not sound like the client and may further mean that the client does not fully understand the document that he or she is swearing.

2. When quoting the submission of counsel the affidavit must clearly indicate that the affiant is referencing the contents of an exhibit and then the use of legal language contained in the submission is appropriate.

3. Affidavit paragraphs should be restricted to one or two key facts per paragraph.

4. The affidavit should not contain argument.

5. In most cases for purposes of flow the affidavit should read chronologically.

6. Ensure that all evidence is introduced and marked separately by exhibit. For example, if information has been obtained through ATIP requests (poison pen letters, extrinsic information, additional information that should have been before the decision maker), this information must be introduced by way of affidavit exhibit to support your pleadings.

Written Arguments

7. An overview statement should appear at the beginning of your memorandum – usually one paragraph - and is best written after the rest of the argument is complete. This is your summary: one quick statement to explain to the Judge what went wrong and why the Court is needed.

8. I am a proponent of setting out the facts at the beginning of a Memorandum before setting out the issues and standard of review. The recounting is written in the third person, objectively and without argument but very important as highlighted by the Honourable Mr. Justice Stratas:6

The record on judicial review is almost always a paper record. The facts may seem dry and unimportant to you. Remember, however, that facts, presented effectively, can trigger the judicial impulse to do justice in a particular case.

6 Stratas J.A., supra p.7

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To many judges, the standard of reasonableness can be applied in fairly flexible ways. If you convince a court that a decision is factually harsh or unfair, you may lead a court to find that decision is unreasonable. That sort of convincing is achieved primarily through skilful selection and presentation of the fact, not the law.

On issues of procedural fairness, the facts are especially important.

9. Issues must be set out succinctly and independently. Often it is a good rule of thumb to read how Judges have rewritten or reorganised issues in cases with facts and issues similar to that you are pleading.

10. Do not overlook the standard of review even if the research does not reach your memorandum because the exercise assists in crystallizing your arguments as to nature of legal error/standard of review (correctness) and/or fact and law (reasonableness). It also turns your mind to the legislation, the presence of a privative clause and in short the context of the decision maker. The Honourable Mr. Justice Stratas is again helpful in his comments regarding legislative facts, he writes:

Too often we are confronted with a blizzard of facts about the particular matter that was before the administrative tribunal – just as we were a first instance decision-maker with no need to defer – before we are told of any of the legislative facts about the tribunal, its powers and its personnel. This is a mistake. We need to be given context surrounding the decision-maker before we are confronted with the factual detail of the particular case.

11. Where errors of law, procedural fairness, or natural justice issues are at issue it is best to lead with these arguments and oftentimes stop there.

12. Although trite, ensure no fact is being raised that is inconsistent or non-existent in your affidavit.

13. Sub headings are useful and helpful not only for the eventual reader but also to assist the writer in setting out the arguments in a clear and concise manner.

14. It is my preference to set out the law (legislation, case law) and then proceed to manuals and or other third party evidence to frame the issue.

15. Ensure case law and evidentiary quotes are not unnecessarily long.

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16. Use of underling and emphasis should be used sparingly as they can be distracting to readers and take away from your argument.

Reply

17. A reply is an important pleading and should not be underutilized. It allows the Applicant to further hone and articulate arguments.

18. It also allows Applicants to concede on points of arguments where appropriate and narrow the issues.

19. It may also be the first opportunity to make submissions responding to the introduction of affidavit evidence as potentially bolstering a deficient decision.

20. It is important to highlight arguments that the Respondent has raised that are not reflected in the decision maker’s reasons and therefore, in your argument, should not necessarily be relied upon by the Court.

CERTIFICATION

A Judge may certify a “serious question of general importance” to the FCA, as per IRPA section 74(d). The question is proposed by parties to the Federal Court proceeding and presented to the Federal Court Judge (FC IRP Rule 18(1)(a)).

Varela v. Canada (M.C.I.) 2009 CanLII 145 (F.C.A.) provides detail on this point:

A serious question of general importance is one that is dispositive of the appeal and, while it is possible that a single case might raise more than one question of general importance, this would be the exception rather than the rule. Furthermore, such a question arises from the issues in the case, and not from the judge’s reasons.

Further from Varela:

Although the Supreme Court of Canada stated in Baker v. Canada (Minister of Citizenship and Immigration) that once a question has been certified, all issues raised by the appeal may be considered by the Court, it is a mistake to reason that any question that could be raised on appeal may be certified. The statutory requirement remains as stated in paragraph 74(d) of the Act.

Questions may be proposed by consensus, requiring only basic explanation as to why the question is relevant: i.e., dispositive of the appeal, but still of general importance. At other

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times, the Applicant and Respondent will not be able to come to consensus, in which case the Applicant will propose question(s) to the Federal Court and Respondent. The Respondent will be given a period to respond, and the Applicant may be given time to reply.

Time limits for the certification may be set down by the Judge at the end of the oral hearing, or left to the parties, within reasonable limits (i.e., expect to have the questions back to the Court within 2-3 weeks). If it is left to the parties, oral directions may still be issued at a later time by the Judge (i.e., dictating time for response).

Under FC IRP Rule 20(1)(a), if a question has been certified, the parties may file a Notice of Appeal within 30 days to the FCA.

SAMPLE SUBMISSION

In this case; Rabeya v. Canada (Citizenship and Immigration), 2011 FC 370, the AFL/JR involved an individual whose application for permanent residence under the Federal Skilled Worker class was refused. The central issue in the application was that the officer awarded 22 points out of 25 for the Applicant’s education credentials. The three points would have enabled the Applicant to be granted permanent residence. The Applicant possessed two Masters’ degrees, one in Arts (MA) and the other in Business Administration (MBA in Marketing). The officer only considered one of the Masters’ degree based on the interpretation of the relevant provisions under the IRPR. More precisely, the officer decided that based on subparagraph 72(2)(e)(ii), the Applicant had a Masters’ degree and 16 years of full time studies, falling short of the 17 years required in order to obtain the 25 points.

In this matter the Court found that not considering the second Masters’ degree or a second educational credential of the same level to be absurd and allowed the Judicial Review and asked the parties to propose questions for certification.

Proposed Questions for Certification

The Applicant and Respondent sought to come to agreement as to proposing a Certified Question. No consensus was reached; and the Applicant proposed the following questions be certified to the Federal Court of Appeal.

1. For the purposes of section 78(3) (a) of the Immigration and Refugee Protection Regulations, what is the significance of “single educational credential” when considering more than one masters’ degree under section 78(2) (f), particularly where one of those degrees is of a higher and/or professional nature?

2. For the purposes of section 78(3) (b) (i) of the Immigration and Refugee Protection Regulations, is a visa officer to consider a second master’s degree under section 78(2) (f) as “the single educational credential that results in the highest number of points”?

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3. In assessing points for education under section 78(2) (f) of the Immigration and Refugee Protection Regulations, is a visa officer to consider points on the basis of a second masters’ degree?

The Applicant submits that these questions, proposed pursuant to paragraph 74(d) of the Immigration and Refugee Protection Act (IRPA), are “serious” ones of “general importance.” The questions transcend the interests of the immediate parties to the litigation and contemplate issues of broad significance or general application that are determinative of matters before the Court.

Generally, the implications of a Skilled Worker Applicant for permanent residence having more than one masters’ degree have been confronted by visa officers and the Court on multiple occasions. As is apparent from the recent decisions of the Honourable Madam Justice Heneghan in Kabir v. Canada (M.C.I.) 2010 FC 995 and Khan v. Canada (M.C.I.) 2010 FC 983 and the Honourable Mr. Justice Campbell in Hasan v. Canada (M.C.I.) 2010 FC 1206, this area of law remains unsettled and will continue to pose uncertainty for Applicants.

Justices Heneghan and Campbell respectively, have proposed a single Certified Question resulting from separate matters. The Applicant was not convinced that the proposed question is dispositive of the application. The question already proceeding to the Federal Court of Appeal reads as follows:

In assessing points for education under s. 78 of the Immigration and Refugee Protection Regulations, does the visa officer award points for years of full-time equivalent studies that did not contribute to obtaining the educational credential being assessed?

The Applicant has a number of concerns with this question. First and foremost, is the connotation that the education credential “contribute” to other credentials? It is the Applicant’s submission that such a requirement is not legislatively required and serves to confuse the matter; many people obtain degrees that are not directly related to one or the other or return for education later in their life. It seems that the legislative intent is instead seeking the “highest educational credential” as phrased by the Honourable Madam Justice Mactavish in Bhuiya v. Canada (M.C.I.) 2008 FC 878, par. 13.

It is this ambiguity as surrounding the “single educational credential” (ss. 78(3) (a)) and “highest number of points” (ss. 78(3) (b) (i)) that leads the Applicant to believe that subsection 78(3) of the Immigration and Refugee Protection Regulations has not been clearly articulated nor defined in reference to subsection 78(2) (f). Consequently, we ask that the questions be certified so as to provide an opportunity for clearer statutory interpretation. The opportunity to present a Certified Question to the Court after a hearing is a matter of privilege; we thank the Court for the opportunity.

The Respondent based his argument upon a proposition which the Applicant submits is not clearly founded in the Immigration and Refugee Protection Act and IRPR. The Respondent

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made the argument that each successive degree by an Applicant must be “in the line of progression” to the next degree. The Applicant maintained that this vocabulary is not found in either the IRPA or IRPR.

In Bhuiya v. Canada (M.C.I.) 2008 FC 878, the Honourable Justice Madam Mactavish first set forth this requirement and this decision has been referenced on four occasions: in the three cases already proceeding to the Federal Court of Appeal (Khan, Kabir, and Hasan) and in Muhandiramge v. Canada (M.C.I.), 2009 FC 752. Had Parliament intended for this type of requirement, it could have been incorporated into the IRPR.

Programs of study do not necessarily have to be “in the line of progression”. Instead, it is the Applicant’s contention that section 78(2) of the IRPR mandates an assessment of the qualifying credential and then examining the number of years of full-time study to obtain the credential. A qualifying credential, in the Applicant’s terminology, refers to the credential named within the subparagraphs of 78(2). Here, the qualifying credential for 78(2) (f) is the possession of a masters or doctoral degree.

Having a masters or doctoral degree automatically triggers 78(2) (f) and so the immigration officer must consider whether this (“the highest educational credential”) also involves at least 17 years of education to obtain. It is for this reason that the diploma received after the master’s degree in Bhuyia did not turn the master’s degree, which had been obtained in 16 years, into a 17 year degree; the master’s degree was the highest credential and the one that brings the officer into the auspices of 78(2) (f).

The Applicant’s highest educational credential was her Masters of Business Administration (MBA). This degree falls within 78(2) (f). In obtaining this degree, the Applicant had received over 17 years of education and so fulfilled the requirements to receive 25 points.

In relying on Mactavich J.’s vocabulary, the Respondent has read into the IRPA and IRPR connotations which are not apparent on the face of the legislation. It was further this potential misapprehension of Mactavish J.’s vocabulary that led the Honourable Justice Campbell to differ with the Honourable Madam Justice Heneghan’s decisions in Kabir and Khan. The fact that this difference still exists before the Court is evidence that this is an unsettled area of law that is of general importance.

The Applicant’s questions sought to bring clarity to this area of law. It is section 78(3) of the IRPR which provide context to section 78(2). The Applicant’s questions go to the heart of the interpretation of 78(2) (f) in all cases where an Applicant may have more than one master’s degree. In today’s highly educated world, increasingly Applicants will have such multiple degrees. Clarity as to what is meant by “single educational credential” (under ss. 78(3) (a)) in these circumstances is required. Further, understanding as to what may be counted as “the single educational credential that results in the highest number of points” (under ss. 78(3) (b) (i)) is also required.

The Applicant also took the time to highlight the potential absurdity which may result due to the ambiguity in interpretation. Had the Applicant had a four year bachelor degree

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followed by her M.B.A. degree she would have qualified under section 78(2) (f), but because she had a two year bachelor degree and a two year master’s of arts degree she did not. These absurd results in the Applicant’s respectful opinion, evidences the need for legal clarity.

In addition to these questions addressing matters of general and broader significance, they are also dispositive of the Appeal. The Applicant submits that the M.B.A. degree is a “single educational credential” and further that it “results in the highest number of points.” If this is the case, then it fits both requirements of section 78(2) (f) as it is a master’s degree which required at least 17 years to obtain. The Applicant would then receive 25 points, providing the 67 points required for immigration to Canada.

Additionally, the Respondent asked whether it is an Applicant or an officer who must determine the years of study related to the educational credential that results in the highest number of points under sections 78(2) (f) and 78(3) (b) (i). The definition of “educational credential” is found within section 73 of the Regulations:

“educational credential” means any diploma, degree or trade or apprenticeship credential issued on the completion of a program of study or training at an educational or training institution recognized by the authorities responsible for registering, accrediting, supervising and regulating such institutions in the country of issue.

An “educational credential” clearly refers to a single program of study.

In every case, when an Applicant provides proof of their education, they are expected to submit copies of their certificates and other materials setting out the years of the program. This is how an officer is able to determine whether the Applicant completed a two year bachelor degree or a four year bachelor degree. The onus is clearly on the Applicant to present evidence of the number of years required to obtain each “educational credential.”

The provision of such evidence, however, does not result in greater certainty or clarity generally, or in the case at hand. Here, we know the Applicant has a two year bachelor degree, a two year master’s of arts degree, and a one and a half year MBA degree. This information does not provide greater clarity under section 78(2) (f). Furthermore, knowing the number of years required to complete the degree does not assist in understanding what was meant by “the single educational credential that results in the highest number of points” under section 78(3) (b) (i).

As a consequence, the Applicant opposed certification of the question proposed by the Respondent. It has already settled in legislation and would not resolve the issues that have arisen in the Applicant’s application. Rather, the Applicant’s proposed questions are dispositive of the matter at hand and are of general importance. The Applicant asks that the

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questions be certified to the Federal Court of Appeal. The Court in the matter certified the following question:

1. For the purposes of section 78(3) (b) (i) of the Immigration and Refugee Protection Regulations, is a visa officer to consider a second Masters’ degree under section 78(2) (f) as “the single educational credential that results in the highest number of points”?

CONCLUSION

A devil’s advocate has been often defined as one who argues against a cause or position, not as a committed opponent but simply for the sake of argument. In turn, I believe that a good advocate is inextricably linked to one’s level of commitment. Be it in the wee hours of the night or taking that extra day to find that key piece of evidence, case or argument that makes all the difference. Litigation, unlike some other facets of the world of immigration law, leads to quick results – good or bad most Federal Court matters are resolved within months to a year. The pace is frenetic, the demands are great and attention to detail is the litigator’s best friend. In 2007 I wrote:7

. . . Citizenship, immigration and refugee litigation continues to meaningfully shape our industry and who will become our future Canadians. Many federal Court decisions in 2006 and the early part of 2007 reiterate that Canada remains at the forefront of creative, sophisticated and important issue identification, debate and ultimate resolution.

The same holds true four years later and with the pace of the legislative amendments we have witnessed in 2010 and 2011 the need for the Federal Court and Federal Court of Appeal to decide important issues will be greater than ever. ______Mario D. Bellissimo is Toronto based and Certified by the Law Society of Upper Canada as a Specialist in Citizenship, Immigration and Refugee Protection. Mr. Bellissimo’ s practice is focused primarily on litigation and he has appeared before all judicial levels including the Supreme Court of Canada, the Federal Court of Appeal and the Federal Court of Canada. He is a founding associate of the law firm of Bellissimo Law Group (Ormston, Bellissimo, Rotenberg). He may be contacted at 416-787-6505 or [email protected].

7SHIFTING SANDS: 2007 CANADIAN IMMIGRATION LAW UPDATE TOP CASES AND LEGAL DEVELOPMENTS, April 13, 14, 2007 – Empress Hotel, Victoria, British Columbia, Mario D. Bellissimo

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