Case in Brief

A Case in Brief is a short summary of a written decision of the Court, drafted in plain language. These summaries are prepared by communications staff of the Supreme Court of Canada. They do not form part of the Court’s reasons for judgment and are not for use in legal proceedings.

Pepa v. Canada (Citizenship and Immigration)

Case summary

The Supreme Court concludes that a person’s visa must be valid at the time of arrival in Canada in order to appeal a removal order under the Immigration and Refugee Protection Act.

This is an appeal about the right to challenge a removal order before the Immigration Appeal Division (IAD) of the Immigration and Refugee Board. A removal order is an official decision requiring someone to leave Canada. The IAD is a special administrative appeal body designated to hear matters such as appeals of removal orders. Under section 63(2) of the Immigration and Refugee Protection Act (IRPA), a foreign national may appeal such an order if they “hold” a permanent resident visa. The Court was asked to clarify when a foreign national must hold the visa to have a right to appeal a removal order.

In 2018, Dorinela Pepa entered Canada from Albania with a permanent resident visa as an accompanying dependent child of her father. In order to be considered an accompanying dependent child, the person must be unmarried. At the border, she disclosed that she had recently married, which meant that she no longer met the criteria to be a dependent child. The Canadian immigration rules require that a change in marital status be reported before entry into Canada. Because of the change in her marital status, she could not be granted permanent resident status as a dependent child and was instead admitted into the country for further investigation. When she entered Canada, Ms. Pepa was the holder of a valid permanent resident visa. However, her visa expired before the end of the investigation.

Ms. Pepa had an admissibility hearing (a hearing to decide if a person is allowed to stay in Canada or not) nine days after the expiration of her visa. The result of the hearing was that a removal order was issued against her, barring her from entering Canada. She appealed the decision to the IAD, but it was unsuccessful. The IAD concluded that she had no right to appeal the removal order without a visa at the time the removal order was issued, and by that time, hers had expired. Thus, according to the IAD’s interpretation, it lost jurisdiction to hear an appeal from a removal decision. On judicial review, the Federal Court held that the IAD could reasonably conclude that it did not have jurisdiction to hear Ms. Pepa’s appeal given that her visa had expired before the removal order was made. The Federal Court of Appeal agreed.

The Supreme Court allowed the appeal, set aside the previous decisions, and remitted the matter to the IAD for determination of Ms. Pepa’s appeal from the removal order.

In the instant case, the IAD’s decision was found to be unreasonable.

Writing for a majority of the judges of the Court, Justice Martin concluded that in this case, it was unreasonable for the IAD to find that it does not have jurisdiction to hear an appeal of a removal order pursuant to section 63(2) of the IRPA if the permanent resident visa is expired at the time the removal order is issued. The IAD’s reasons lack internal rationality and demonstrate a failure of justification, based on the relevant precedents, the applicable principles of statutory interpretation, and the potential impact of the decision on Ms. Pepa.

Moreover, Justice Martin declared that the only reasonable interpretation of section 63(2) is the following: the point in time at which a person must hold a visa in order to access the right of appeal against a removal order under section 63(2) is the time of arrival in Canada. Accordingly, Ms. Pepa had a right to appeal her removal order to the IAD because she was the holder of a permanent resident visa when she entered Canada.