Friday, July 25, 2014

The Panel of the Federal Court of Appeal found that the applicant could apply directly to the Federal Court for judicial review of a visa officer's decision where the applicant was an excluded family member requesting H&C consideration. The Court of Appeal and answered a certified question as follows:

Question: In light of sections 72(2)(a), 63(1) and 65 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and the case of Somodi v. Canada (Minister of Citizenship and Immigration), 2009 FCA 288 (CanLII), 2009 FCA 288 (CanLII), [2010] 4 F.C.R. 26 (F.C.A.), where the applicant has made a family class sponsorship application and requested humanitarian and compassionate considerations within the application, is the applicant precluded from seeking judicial review by the Federal Court before exhausting their right of appeal to the Immigration Appeal Division where the right of appeal is limited pursuant to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227?

Answer: No.

2014 FCA 180
Key Issues: 
Judicial review, excluded family member, H&C, visa officer