APPEAL WATCH: Pepa v Canada, bound by obiter

The Supreme Court of Canada (“SCC”) granted leave to appeal Pepa v Canada (Citizenship and Immigration), 2023 FCA 102 (“Pepa FCA”), a pithy (16 paragraph) dismissal of a certified question for appeal from the Federal Court of Canada (“FC”) under the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”).

The appeal material raises two main issues: first, whether a permanent resident visa holder loses the right to appeal a removal order if their visa expires in the course of administrative delays; and second, the reasonableness of an administrative decision-maker’s (“ADM”) reliance on obiter statements in case law when interpreting a statute.

Context

In March 2018, Dorinela Pepa came to Canada as an accompanying dependent of her father holding a permanent resident visa that was valid until September 2018. Upon arrival, Ms. Pepa was admitted for further examination and was not landed as a permanent resident due to changes in her circumstances: she had spontaneously decided to marry just before coming to Canada.

Further examination took place in April 2018 and July 2018 with two inadmissibility reports issued under s. 44 of the IRPA (Pepa v Canada (Citizenship and Immigration), 2021 FC 348, paras 6–7 [Pepa FC]). The first report alleged that Ms. Pepa’s marriage disqualified her as a dependent on her father’s permanent residence application, rendering her inadmissible. The second report found her inadmissible for misrepresentation because Ms. Pepa failed to disclose the change in her marital status to immigration officials before arriving in Canada (Pepa FCA, para 2; Pepa FC, 7).

Both reports were referred in July 2018 to the Immigration Division (“ID”) of the Immigration and Refugee Board, which concluded its admissibility hearing in October 2018 after Pepa’s visa expired in September (Pepa FCA, para 2; Pepa FC, paras 6–7).

Judicial History

Immigration and Refugee Board

The Minister of Citizenship and Immigration abandoned the April inadmissibility report findings but proceeded on the misrepresentation grounds from the July report (Pepa FC, para 8). The ID determined that Ms. Pepa was inadmissible under s. 40(1) of the IRPA for misrepresentation and issued an Exclusion Order (Pepa FCA para 4; Pepa FC, para 10).

Subsequently, the Appellant appealed the ID’s decision before the Immigration Appeal Division (“IAD”) under s. 63(2) of the IRPA, which allows visa holders to challenge a removal order before. 

63(2) A foreign national who holds a permanent resident visa may appeal to the Immigration Appeal Division against a decision to make a removal order against them made under subsection 44(2) or made at an admissibility hearing.

The IAD heard both parties and found that Ms. Pepa did not have a right to appeal under s. 63(2) of the IRPA because her visa expired in September and was not valid at the time that the Exclusion Order was issued (Pepa FCA, para 4; Pepa FC, para 13).

In reaching its conclusion, the IAD heavily relied on a previous FC decision and two other earlier IAD decisions which established that the expiration of a visa rendered it no longer valid (Pepa FCA, para 4). Consequently, the IAD deemed it unnecessary to conduct an independent review of the statutory language due to the ostensibly established precedent of earlier decisions.

Federal Court

The appellant sought judicial review from the FC of the ID’s Exclusion Order, alleging a lack of procedural fairness and an unreasonable decision, and challenged the IAD’s determination on its jurisdiction (Pepa FCA, para 5; Pepa FC, paras 13–14). 

The FC dismissed both applications concluding the ID did not breach the appellant’s right to procedural fairness and that the ID’s decision to issue a removal order was reasonable (Pepa FCA, para 6; Pepa FC, paras 30, 42). On the IAD’s jurisdiction determination, the FC found the IAD’s conclusion to be reasonable. 

Federal Court of Appeal

Under the IRPA’s s. 74(d), an appeal to the FCA is only available if the FC certifies a “serious question of general importance” for appeal. The FC certified the question regarding the operative time for visa expiry in determining the extinguishment of the right to appeal, but not the ID’s decision itself.

For the purposes of determining its jurisdiction to hear an appeal pursuant to subsection 63(2) of the IRPA, shall the validity of the permanent resident visa be assessed by the IAD at the time of arrival in Canada, at the time the report under subsection 44(1) is made, at the time it is referred to the ID, as the case may be, or at the time the exclusion order is issued? (Pepa FCA, para 7).

The FCA held that the FC properly identified and applied the reasonableness standard of review (Pepa FCA, para 9) and that the IAD appropriately conducted the necessary analysis by reviewing and adopting precedents relevant to the issue at hand (Pepa FCA, para 12). That is, the FCA deemed it reasonable that the IAD relied on case law instead of conducting an independent analysis of the text, context, and purpose of s. 63(2) of the IRPA. 

Analysis

Following obiter

The IAD found that a visa ceases to be valid upon expiration, relying on Canada (Minister of Citizenship and Immigration) v Hundal, [1995] 3 FC 32 [Hundal] (Pepa FC, para 43), and determined that the right of appeal is restricted to persons holding a valid permanent resident visa at the time of the “exclusion report,” referring to Ismail v Canada (Citizenship and Immigration), 2015 FC 338 [Ismail] (Pepa FC, para 44).

But, Ismail did not directly address the impact of visa expiry on appeal availability. On judicial review, the Appellant argued that there is no statutory authority requiring a visa to have not expired before an Exclusion Order is issued, and that a change in circumstances under which a visa was issued does not invalidate a valid visa (Pepa FC, para 15). This raises an issue I don’t see addressed head-on in the case law. 

On one hand, if an ADM is presented with a case in which a court considered a statutory provision, “it would be unreasonable for [an ADM] to interpret or apply the provision without regard to that precedent (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, para 112 [Vavilov]). But simply acknowledging precedent is a far cry from its mechanical application.

The degree to which a precedent constrains an administrative decision depends on its similarity to the case/issues at hand and the ADM’s reasons for departing from it (Canada (Public Safety and Emergency Preparedness) v Ukhueduan, 2023 FC 189, at para 39 [Ukhueduan]). 

In Ukhueduan, the ADM’s failure to justify deviation from precedent led to the decision being set aside (paras 39, 53). While Vavilov appears to say nothing about the inverse; i.e., following a judicial decision without interpreting the provision, it emphasises that ADMs “are not required to engage in a formalistic statutory interpretation exercise in every case” (Vavilov, para 119). As always, it’s contextual. 

As Grammond J. noted in Service d’administration P.C.R. Ltée v. Reyes, 2020 FC 659, judicial determinations of reasonableness are themselves of limited precedential value; what’s reasonable in one circumstance may not be reasonable in another. Complicating things for the present case, however, in Ismail, de Montigny J. found the IAD’s decision reasonable and also correct (para 15). 

On the other hand, Vavilov states that precedents “on the issue before the administrative decision maker or on a similar issue will act as a constraint on what the decision maker can reasonably decide” and if the decision maker deviates from that precedent without justifying that departure, its decision will be found unreasonable (para 112). But precedent on a similar issue is not equivalent to obiter on the same issue.

The notion of degrees of constraint raises a second order question of how pointedly a precedent must address the issue at hand for a decision-maker to defer to or depart from it. Vavilov requires courts and administrative decision-makers alike to resolve questions of statutory meaning by reference to its text, context, and purpose. Failure to consider this principle may render the decision unreasonable (Vavilov, para 118).

Additionally, we might expect that an ADM be required to weigh its reliance on precedent “on a similar issue” against the severity of a decision’s impact on an individual’s rights and interests, which necessitates reasons that “reflect the stakes” (Vavilov, 133).

Reasonableness review of use of obiter

Unless ADMs cannot find themselves bound by obiter without explanation, I wonder what kind of reliance on obiter is sufficient for a reviewing court to be confident in the outcome reached. What if an ADM is permitted to rely on obiter as precedent on a similar issue (Vavilov, para 112) but Ismail itself lacked sufficient similarity? Would it be deemed unreasonable for not conducting a further statutory analysis and what aspect of the decision should signal to a reviewing court it should not have confidence in the outcome? 

In spite of the challenges it poses a reasonableness review, there ought to be some appropriate, if fact-specific, middle ground between permitting complete reliance and necessitating a full statutory analysis when statutory meaning is at issue. Complicating matters in Pepa is not just the reliance on obiter, but rather the reliance on obiter in lieu of statutory interpretation, which seems a pivotal sticking point to distinguish what is and isn’t permitted.

Perhaps there’s a helpful distinction in the direction Vavilov gives for the ADM’s interpretation of its own statutory grant of authority: while its interpretation is “generally entitled” to deference, it must be properly justified (Vavilov, para 109).

But this begs the question of whether ADMs should be obligated to parse through decisions, discern if a finding is obiter, and provide reasons for its use. It might prove impractical for every ADM to work through Wambaugh’s Inversion Test, or some equivalent, to differentiate ratio from obiter in each judicial decision before it.

By way of a brief epilogical aside, I note that the question of operative time of visa expiry before the FCA was brought by way of a certified question from the FC. Though it’s now beating a dead horse, Côté J.’s argument for deciding certified questions on the correctness standard in her Mason v Canada (Citizen and Immigration), 2023 SCC 21 concurrance maps well onto the Pepa, FCA certified question.

Had the FCA been required to answer the visa expiry question correctly, it almost certainly would have reviewed s. 63(2)’s text, context, and purpose. But this is an unnecessary digression other than to say that perhaps it makes sense for “serious questions of general importance” to be answered correctly. I can imagine an administrative law world where ADMs are permitted to rely on obiter when reasonable questions certified by the FC are to be answered correctly by nature of their classification. Nonetheless, that world is not ours.