Earlier this month, the Free Press reported on a court decision that allows certain Canadians and permanent residents to go directly to the federal court to ask for a judicial review of refusals of certain immigration applications. While this decision is helpful, the better solution would be for Parliament to change the law to allow for appeals of these cases.
The reasons lies in the legal difference between a judicial review and an appeal.
Most people think judicial reviews and appeals are the same. While both result in immigration officers' decisions being looked at a second time, there are important differences in these procedures.
In an appeal, a person is allowed to argue what lawyers call the facts. Individuals can testify in person or on the phone and new documents can be provided. This gives the decision maker the ability to hear directly from all of the family members affected by the original decision and take into account new evidence. If it's determined a wrong decision was made by an immigration officer, this decision can be overturned.
A judicial review, on the other hand, is much more limited.
In a judicial review, the judge is usually limited to deciding whether an officer followed the law. As a result, as long as the decision was legally correct and reasonable, and the immigration officer followed procedure, it will not be overruled.
Because judicial review focuses on the law as opposed to the facts, no new evidence can be provided. There have been cases where judges have disagreed with immigration officers, but did not reverse the officers' decisions. Under the law of judicial review, as long as the rules were followed, an immigration officer is allowed to interpret the facts differently than a judge.
If appeals are better than judicial reviews, why was the court decision described as "fantastic" by immigration lawyers?
The case involved Raheal Habtenkiel. Born out of wedlock, her father, Issak Habtenkiel, didn't list her among his children when he and his wife applied to come to Canada in 2009 because of cultural shame. The couple is Eritrean Orthodox Christian.
After they came to Canada, the father had a change of heart and he obtained DNA testing proving Raheal was his child.
Because of the way the law is written, a child who is not listed on an immigration application is not "family" under immigration law and thus cannot be sponsored under the "family class" category.
This is significant as it is typically the only way children can immigrate to Canada, unless an immigration officer finds humanitarian and compassionate grounds.
Before this groundbreaking case was decided, sponsors had to appeal their cases first. When a decision to sponsor a family member is refused, there is usually a right to an appeal. However, if an individual is not family, these appeals are not available. Requiring families to go through a futile appeal was a waste of both the government's and individual's time and money.
While bypassing an appeal streamlines the process, the better solution would be to have Parliament change the law to allow for appeals.
Just because a person is not considered family under the law does not mean they are not family in every other sense of the word. As a result, the right thing to do is to give these individuals an appeal and not force them to judicial review.
At the same time, the family should bear some of the government's court costs on the appeal, because the family did misrepresent their situation. That seems only fair.
While this court case was "fantastic" from a procedural point of view, it was devastating for the family as they lost on judicial review. One has to wonder if they would have been successful on an appeal.
R. Reis Pagtakhan is an immigration lawyer with Aikins Law in Winnipeg.