Canadian Refugee Procedure/72-75 - Judicial Review

IRPA Sections 72-75

Sections 72-75 of the Immigration and Refugee Protection Act read:

DIVISION 8
Judicial Review

Application for judicial review
72 (1) Judicial review by the Federal Court with respect to any matter — a decision, determination or order made, a measure taken or a question raised — under this Act is, subject to section 86.1, commenced by making an application for leave to the Court.

Application
(2) The following provisions govern an application under subsection (1):
(a) the application may not be made until any right of appeal that may be provided by this Act is exhausted;
(b) subject to paragraph 169(f), notice of the application shall be served on the other party and the application shall be filed in the Registry of the Federal Court (“the Court”) within 15 days, in the case of a matter arising in Canada, or within 60 days, in the case of a matter arising outside Canada, after the day on which the applicant is notified of or otherwise becomes aware of the matter;
(c) a judge of the Court may, for special reasons, allow an extended time for filing and serving the application or notice;
(d) a judge of the Court shall dispose of the application without delay and in a summary way and, unless a judge of the Court directs otherwise, without personal appearance; and
(e) no appeal lies from the decision of the Court with respect to the application or with respect to an interlocutory judgment.

Right of Minister
73 The Minister may make an application for leave to commence an application for judicial review with respect to any decision of the Refugee Appeal Division, whether or not the Minister took part in the proceedings before the Refugee Protection Division or Refugee Appeal Division.

Judicial review
74 Judicial review is subject to the following provisions:
(a) the judge who grants leave shall fix the day and place for the hearing of the application;
(b) the hearing shall be no sooner than 30 days and no later than 90 days after leave was granted, unless the parties agree to an earlier day;
(c) the judge shall dispose of the application without delay and in a summary way; and
(d) subject to section 87.01, an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the judge certifies that a serious question of general importance is involved and states the question.

Section 74(d): An appeal to the Federal Court of Appeal may be made only if the judge certifies that a serious question of general importance is involved

Section 74(d) of the IRPA provides that, subject to section 87.01, an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the judge certifies that a serious question of general importance is involved and states the question. In Zhang, the Federal Court of Appeal (Justices Dawson, Gauthier and Trudel) summarized the nature of a proper certified question:

It is trite law that to be certified, a question must (i) be dispositive of the appeal and (ii) transcend the interests of the immediate parties to the litigation, as well as contemplate issues of broad significance or general importance. As a corollary, the question must also have been raised and dealt with by the court below and it must arise from the case, not from the Judge’s reasons[.]

Furthermore, the Federal Court of Appeal has entertained an appeal without a certified question, where the issue on appeal involved the jurisdiction of the Federal Court judge or an allegation of bias. As stated in Canada v. Aziz:

The Minister argues that in this case no certified question is required. He relies on a number of immigration cases in which this Court has permitted an appeal to proceed despite the absence of a certified question. For example, in Forde v. Canada, the Court entertained an appeal from a Federal Court order staying a deportation pending the disposition of another immigration case. The Court concluded that no certified question was required because issue was whether the stay order was within the jurisdiction of the Federal Court under paragraph 50(1)(b) of the Federal Courts Act, R.S.C. 1985, c. F-7. In Subhaschanddran v. Canada, the Court entertained an appeal from a Federal Court order that it construed as a refusal of a judge to grant or dismiss a motion to stay a deportation. This Court has also held that no certified question is required to appeal an order on a motion for recusal based on an allegation of bias, because such an allegation goes to the jurisdiction of a judge to adjudicate the case: see, Narvey v. M.C.I. and Re Zündel. [internal citations omitted]

This is on the basis that paragraph 27(1)(c) of the Federal Courts Act authorizes an appeal from an interlocutory judgment of the Federal Court in limited circumstances.

Section 75: Rules

Rules
75 (1) Subject to the approval of the Governor in Council, the rules committee established under section 45.1 of the Federal Courts Act may make rules governing the practice and procedure in relation to applications for leave to commence an application for judicial review, for judicial review and for appeals. The rules are binding despite any rule or practice that would otherwise apply.

Inconsistencies
(2) In the event of an inconsistency between this Division and any provision of the Federal Courts Act, this Division prevails to the extent of the inconsistency.