June 8, 2015

5 Serious Legal Questions Being Decided by the Federal Court of Appeal

A number of certified questions are before the Federal Court of Appeal. Of those, excluding refugee matters, I find these five particularly interesting:

1. Is the disjunctive element of subsection 4(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (as amended SOR/2010-208) ultra vires the enabling statute (the Immigration and Refugee Protection Act, SC 2001, c 27) because subsection 4(1) would prohibit the sponsorship of a spouse when the marriage was found to be entered into primarily for the purpose of gaining status, notwithstanding a finding that the marriage always was or subsequently became genuine, and would therefore frustrate the aims and objectives of the Act, in particular section 3(1)(d), “to see that families are reunited in Canada”? IMM-5204-13, Brown J. November 13, 2014, 2014 FC 1077

2. Can a writ of mandamus be issued to compel the Minister of Public Safety and Emergency Preparedness or the Canada Border Services Agency to investigate a complaint of marriage fraud made by a private citizen? IMM-7972-13, Manson J. January 16, 2015, 2015 FC 97

3. Are individuals who will be subject to a lengthy waiting period, prior to the assessment of their immigration applications under the Investor class, due to the effect of annual targets and Ministerial Instructions made under s. 87.3 of the IRPA, entitled to an order of mandamus to compel immediate processing? He v. Canada (Citizenship and Immigration) 2014 FC 92, Zhang v. Canada (Citizenship and Immigration) 2014 FC 93, Fang v. Canada (Citizenship and Immigration) 2014 FC 94, Jiang v. Canada (Citizenship and Immigration) 2014 FC 95, Kearney v. Canada (Citizenship and Immigration) 2014 FC 96, Wurm v. Canada (Citizenship and Immigration) 2014 FC 97 and Jia v. Canada (Citizenship and Immigration) 2014 FC 596

4. Does such a delay violate the applicants’ rights under either sections 7 or 15 of the Charter or the rule of law? (Jia v. Canada (Citizenship and Immigration) 2014 FC 596)

5. Is paragraph 58(1)(c) of the Immigration and Refugee Protection Act only available as a ground for continued detention where it follows a detention under subsection 55(3) of the IRPA? IMM-1934-14Mactavish J. 2014 FC 390, April 25, 2014

Hope these all proceed to hearing as the results will make for interesting reading and potentially, changes to the law!