Date: 20251029

Docket: IMM-704-24

Citation: 2025 FC 1738

Ottawa, Ontario, October 29, 2025

PRESENT: Madam Justice Pallotta

BETWEEN:

LUIS CARLOS REBELO

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

JUDGMENT AND REASONS

I. Overview

[1] In this application for judicial review, Luis Carlos Rebelo asks the Court to set aside a December 2023 decision of the Immigration and Refugee Board’s Immigration Appeal Division (IAD) that dismissed his appeal of a removal order issued by the Immigration Division (ID). The IAD decided it did not have jurisdiction to hear the appeal.

[2] Mr. Rebelo is a Portuguese citizen who has lived in Canada for 35 years, since he was three years old. He was a permanent resident but lost that status in 2019, when the ID found him inadmissible for serious criminality and issued a deportation order (a type of removal order) that required him to leave the country.

[3] Section 63 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] grants permanent residents the right to appeal a removal order to the IAD. However, s 64 bars that right in certain circumstances, including where a permanent resident has been found inadmissible for serious criminality in respect of a crime that was punished in Canada by a term of imprisonment of at least six months. “Punished” means the sentence imposed for the crime.

[4] Mr. Rebelo’s sentence was over six months when the ID found him inadmissible and under six months when the IAD dismissed his appeal. The ID had issued the deportation order based on a manslaughter conviction for which Mr. Rebelo received an eight-year[1] prison sentence. Mr. Rebelo commenced the IAD appeal after he successfully appealed his manslaughter conviction, pleaded guilty to a lesser offence at a new criminal trial, and was sentenced to six months less a day in prison.

[5] To decide whether it had jurisdiction to hear Mr. Rebelo’s appeal, the IAD had to consider the meaning of s 64 in light of two precedential decisions at the same level of court that interpreted the s 64 bar differently:

• ·according to Nabiloo v Canada (Citizenship and Immigration), 2008 FC 125 (Justice Snider), the relevant sentence is the one existing when the IAD considers whether it has jurisdiction to hear a removal order appeal—in other words, a successful appeal of the criminal conviction or sentence underlying a removal order can lift the s 64 bar and restore the s 63 right to appeal the removal order to the IAD;

• ·according to Canada (Citizenship and Immigration) v Asphall, 2023 FC 1090 (Justice Elliott), the only relevant sentence is the one that existed at the time the person was found inadmissible—in other words, the appeal right is lost when a permanent resident is found inadmissible and it cannot be restored by a successful criminal appeal; however, going forward, the Minister cannot use an order that is based on an overturned conviction to deport the person from Canada.

[6] The IAD decided that s 64 barred Mr. Rebelo’s appeal. It found that Mr. Rebelo’s case was factually indistinguishable from Asphall and it preferred the Asphall interpretation of the s 64 bar.

[7] Mr. Rebelo argues the IAD erred in relying on Asphall to decide it lacked jurisdiction to hear his appeal. He states the IAD followed Nabiloo for 15 years and the recent Asphall decision sets a dangerous precedent for permanent residents who successfully appeal the conviction or sentence underlying their removal orders. He is “stuck in limbo” without immigration status because of an unappealable deportation order that cannot be used to deport him but still affects him. Now a foreign national, he has no legal right to work or access provincial healthcare, is ineligible for Canadian citizenship, and cannot obtain permanent resident status without the Minister’s approval. Foreign nationals also face a heightened risk of immigration detention and can be deported for less serious offences under IRPA s 36(2).

[8] Mr. Rebelo contends the IAD simply stated it preferred Asphall without a proper analysis, and its interpretation of s 64 is inconsistent with the modern approach to statutory interpretation. He argues the decision was unreasonable because it was not responsive to his arguments, did not reflect a rational chain of analysis, and ran afoul of the relevant legal constraints bearing on it.

[9] The Minister submits that the IAD considered Mr. Rebelo’s arguments and properly rejected them. The Minister submits Asphall was correctly decided and the IAD reasonably followed its ruling on a question of law. IRPA expressly limits the availability of an IAD appeal, consistent with Parliament’s objective of prioritizing national security to expeditiously remove people who are ordered deported for serious criminality. Mr. Rebelo remains inadmissible for serious criminality and the change to his conviction and sentence did not restore his immigration status or the appeal rights he lost when he was found inadmissible.

[10] I am granting Mr. Rebelo’s application. In my opinion, the IAD’s reasoning process and the outcome it reached do not withstand reasonableness review. The decision exhibits two fundamental flaws that render it unreasonable: a failure of rationality in the reasoning process and a failure to justify the decision in view of the relevant constraints bearing on it. The reasoning process is not rational because, while the IAD stated that it preferred the Asphall interpretation of the s 64 bar, its reasoning conflicts with that interpretation. The decision is not justified because the IAD’s reasons for preferring the Asphall interpretation over Nabiloo and its conclusion that it had no jurisdiction to hear Mr. Rebelo’s appeal were untenable in view of statutory interpretation principles, IRPA’s statutory scheme, the IAD’s past practice and decisions that followed Nabiloo, and other constraints bearing on its decision.

II. Background leading to the IAD’s December 2023 decision

[11] In 2017, Mr. Rebelo was convicted of manslaughter for his role in a group attack on a victim who died of a gunshot wound inflicted by another man in the group. Mr. Rebelo was sentenced to over eight years in prison.

[12] IRPA s 36(1)(a) provides that a permanent resident or foreign national is inadmissible on grounds of serious criminality for having been convicted in Canada of: (i) an offence punishable by a maximum term of imprisonment of at least 10 years, or (ii) an offence for which a term of imprisonment greater than six months has been imposed.

[13] Following an admissibility hearing in March 2019, the ID found that Mr. Rebelo was a permanent resident who met both of the s 36(1)(a) triggers—he was convicted of an offence that carried a maximum punishment of life in prison and his own sentence exceeded six months. The ID therefore found Mr. Rebelo inadmissible for serious criminality and issued a deportation order that required him to leave Canada.

[14] There is no question that, at the time the deportation order was made, IRPA ss 64(1) and (2) barred an IAD appeal:

[15] As a result, Mr. Rebelo’s deportation order came into force on the day that it was made: IRPA s 49(1)(a). This meant he lost his permanent resident status on that day: IRPA s 46(1)(c).

[16] In September 2020, the Ontario Court of Appeal allowed Mr. Rebelo’s appeal of his criminal conviction and ordered a new trial on the manslaughter charge.

[17] Believing he was no longer barred by IRPA s 64, Mr. Rebelo applied for an extension of time to appeal his deportation order to the IAD. The IAD denied the request. In a February 2022 decision, the IAD found it did not have jurisdiction “[a]t the current time” and Mr. Rebelo’s application was premature. The IAD wrote (at paragraph 11, footnote omitted):

Section 64 of the Immigration and Refugee Protection Act says that a permanent resident who was punished by a term of imprisonment of at least six months is inadmissible to Canada and has no right of appeal. [Mr. Rebelo’s] sentence exceeded six months. There has not been a final disposition of his manslaughter charge, and he is awaiting a new trial which has not yet been scheduled. At this point, he is still inadmissible to Canada.

[18] Importantly, the IAD was deciding whether, in February 2022, Mr. Rebelo was a person described in IRPA s 64(2)—an interpretation of the s 64 bar that aligns with Nabiloo. Given the importance of this point, it will be helpful to explain what Nabiloo was about before returning to the IAD’s reasoning and findings in its February 2022 decision.

[19] Ms. Nabiloo was a permanent resident who was found inadmissible for serious criminality and ordered deported after being convicted of two criminal offences and receiving a three-year sentence. When Ms. Nabiloo tried to appeal her deportation order, the IAD asked for submissions on why IRPA s 64 did not bar it from considering her appeal. In response, Ms. Nabiloo informed the IAD that she had appealed her conviction. She asked the IAD to wait for the outcome of the criminal appeal before deciding whether to hear her deportation order appeal. The IAD refused to wait and dismissed the appeal for lack of jurisdiction.

[20] Ms. Nabiloo brought an application for judicial review. The parties agreed that, if IRPA s 64 barred the appeal, the IAD would also lack jurisdiction to consider the request to postpone its decision because a tribunal that lacks jurisdiction to decide a matter cannot consider preliminary or interlocutory issues: Kang v Canada (Minister of Citizenship and Immigration), 2005 FC 297 at para 41. Therefore, the determinative issue was whether “a crime that was punished in Canada by a term of imprisonment of at least two years” in the then-current version of s 64(2) applied to a criminal conviction and sentence that were under appeal.

[21] Justice Snider’s answer on the determinative issue was yes— “punished” in s 64(2) means the sentence imposed, even if a criminal appeal is underway. At the time Ms. Nabiloo appealed to the IAD she was caught by the s 64 bar (Nabiloo at paragraph 13):

[13] In sum, the jurisprudence is clear: a person is punished according to s. 64(2) if they have received a sentence of two or more years of imprisonment. Applying this principle to the case at bar, it is evident that, at the moment the IAD considered whether it had jurisdiction to hear Ms. Nabiloo’s appeal, she had been sentenced to such a term. By concluding that s. 64(2) of IRPA barred Ms. Nabiloo’s appeal, the IAD was merely following the case law.

[22] Justice Snider reasoned that an interpretation that treats a convicted person as a serious criminal as soon as the s 64(2) conditions exist, regardless of the possibility of future change, was consistent with IRPA’s objective to prioritize security and the criminal law principle that a convicted person’s status remains the same until their conviction is overturned by a higher court: Nabiloo at paras 14-16. Ms. Nabiloo’s status did not change on the mere filing of a criminal appeal; she would remain an individual sentenced to two or more years of imprisonment, barred by s 64(2) from appealing to the IAD, until her conviction or sentence changed: Nabiloo at para 16.

[23] Ms. Nabiloo argued that, should her criminal appeal be successful, she would be in the untenable position of being subject to an unappealable removal order without being a serious criminal: Nabiloo at paras 17-20. Justice Snider offered two answers to this argument. First, the eventuality did not preclude an interpretation of s 64(2) that was consistent with criminal law principles, case law, and an intent to prioritize security. Second, Ms. Nabiloo would not be without recourse to the IAD. Justice Snider wrote, at paragraph 20:

What avenues are open to Ms. Nabiloo if she is successful on her criminal appeal? Let me assume that Ms. Nabiloo’s sentence is reduced such that she is no longer inadmissible to Canada due to serious criminality as defined in IRPA. In such an event she would no longer be barred by s. 64 of IRPA from bringing an appeal to the IAD of the deportation order. Her application to the IAD could be brought under s. 63(3) of IRPA and not as an appeal of the earlier IAD decision under s. 71. Should these events come to pass, I acknowledge that Ms. Nabiloo would be out of time for bringing an appeal to the IAD (Immigration Appeal Division Rules, S.O.R./2002-230, r. 7(2)). However, Ms. Nabiloo would still be able to apply for an extension of time to bring her appeal (Immigration Appeal Division Rules, S.O.R./2002-230, r. 58(d)). Since s. 64(2) would no longer apply to bar the hearing of her appeal, the IAD would have jurisdiction to consider the request for an extension of time and the appeal of the removal order (see Rumpler v. Canada (Minister of Citizenship and Immigration), 2006 FC 1485 at paras. 34-36).

[24] Returning to Mr. Rebelo’s case, the IAD’s February 2022 decision quoted and endorsed paragraph 20 of Nabiloo, stating that Justice Snider’s comments, while made in obiter, were relevant and “exactly on point.” Mr. Rebelo’s request was premature, but he could apply to extend the time to appeal if his sentence were reduced. Further, the IAD signalled it would likely grant the application (at paragraph 15):

If [Mr. Rebelo’s] conviction is overturned or he receives a sentence of less than six months at his new trial, he is free to make an application for an extension of time to file his appeal at that point. I see little reason why it would not be successful given the factors from Hennelly and the facts outlined in counsel’s application.

[25] At the new criminal trial in December 2022, Mr. Rebelo pleaded guilty to a lesser offence of counselling to commit aggravated assault. The judge sentenced him to six months less a day in prison. The prosecutor withdrew the manslaughter charge.

[26] Mr. Rebelo reapplied to extend the time to appeal the ID’s decision. The IAD granted the extension in June 2023 and Mr. Rebelo commenced his appeal. While it did not say so expressly, clearly the IAD was satisfied that s 64 no longer barred an appeal.

[27] The Asphall decision came out two months later, in August 2023. In Asphall, Justice Elliott overturned an IAD decision that had allowed Mr. Asphall’s appeal and quashed his deportation order after the Ontario Court of Appeal set aside his conviction. The IAD panel in that case reasoned that s 64 did not bar Mr. Asphall’s appeal because the effect of setting aside his conviction was that his sentence was also set aside, and a sentence set aside is one that never existed. While the IAD followed Nabiloo, its approach differed from the one taken with Mr. Rebelo. In the IAD’s February 2022 decision in Mr. Rebelo’s case, the panel found that the Ontario Court of Appeal’s decision did not lift the s 64 bar and he would have to wait for the outcome of his new trial. I will return to this difference in section B.(2)(b)(iii) of the reasonableness review.

[28] Justice Elliott overturned the IAD’s decision in Mr. Asphall’s case on the basis that the IAD had unreasonably interpreted IRPA as giving it power to hear appeals that were explicitly proscribed: Asphall at paras 73, 76-77.

[29] Justice Elliott disagreed with the Nabiloo interpretation of the s 64 bar and gave five reasons why Justice Snider’s obiter comments did not represent the current state of the law (Asphall at paragraph 66): (i) paragraph 20 of Nabiloo is contrary to a plain reading of IRPA ss 64(1) and (2); (ii) Almrei v Canada (Citizenship and Immigration), 2011 FC 554, a later decision of Justice Snider, contradicts Nabiloo; (iii) the IAD did not have a settled interpretation of Nabiloo across the tribunal; (iv) no Federal Court decisions cited Nabiloo for the proposition in paragraph 20; (v) the single authority cited in paragraph 20 of Nabiloo, Rumpler v Canada (Minister of Citizenship and Immigration), 2006 FC 1485, dealt with inadmissibility due to criminality, not serious criminality.

[30] Relying on the Federal Court of Appeal (FCA) decision Tapambwa v Canada (Citizenship and Immigration), 2019 FCA 34 (at paragraph 46), Justice Elliott found that the language of s 64(1)—there is no right of appeal where a permanent resident “has been found to be inadmissible”—refers to a status, and once a person is found inadmissible he remains inadmissible: Asphall at para 61. According to Asphall, the relevant criminal sentence for s 64(2) is the one that was imposed for the conviction at the time of the ID’s decision: Asphall at para 62. Serious criminality is determined by the ID, and once determined, the ID is the final decision maker unless leave is granted to judicially review its decision: Asphall at para 72. However, where a conviction underlying a removal order is overturned, the removal order becomes unenforceable: ibid.

[31] In view of Asphall, the IAD asked the parties in Mr. Rebelo’s case to provide submissions on whether it had jurisdiction to hear Mr. Rebelo’s appeal. Both parties filed written submissions.

[32] On December 27, 2023, the IAD issued the decision that is challenged in this proceeding. While the IAD agreed with Mr. Rebelo’s position that Asphall did not overrule Nabiloo, it concluded that Justice Elliott’s statutory interpretation of s 64 was “reasonable and preferable to the obiter found in Nabiloo.” The IAD rejected Mr. Rebelo’s arguments that: Asphall was factually distinguishable; Asphall’s statutory interpretation leads to absurd consequences; the IAD should follow Nabiloo; the jurisdictional issue was res judicata because the IAD had already applied Nabiloo to grant his extension request and permit his appeal to proceed; and refusing to hear the appeal would offend the doctrine of legitimate expectations.

[33] Finding Asphall applicable to the facts of Mr. Rebelo’s case, the IAD concluded it did not have jurisdiction to hear an appeal of the deportation order that was based on the 2017 manslaughter conviction and sentence. According to the IAD, Mr. Rebelo would only have a right of appeal if, in future, he is found inadmissible based on the 2022 conviction and sentence:

[2] …Sections 64(1) and (2) of the Act provide that a permanent resident does not have a right of appeal to the IAD after the person has been found to be inadmissible for serious criminality described in subsection 64(2). The subsequent quashing of the criminal conviction renders the removal order unenforceable. However, it does not give the IAD jurisdiction to hear the appeal after the finding of inadmissibility because the Act specifically removes jurisdiction in these cases. [Mr. Rebelo’s] December 2022 conviction and sentence were not part of the Minister’s referral to the Immigration Division, nor were they the basis for the removal order. Any right of appeal to the IAD would have to be based on a finding of inadmissibility arising from the December 2022 conviction and sentence. Enforcement proceedings have not been initiated with respect to the December 2022 conviction. On these facts, the IAD has no jurisdiction to hear the appeal.

III. Issues and standard of review

[34] Mr. Rebelo submits that the Court should perform two types of review. He submits the Court should perform a correctness review of the IAD’s interpretation of IRPA s 64, because the interpretation of s 64 raises a general question of law that is of central importance to the legal system as a whole and requires a final answer: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 58-62. He submits the Court should review the question of whether the IAD grappled with his arguments on the more deferential reasonableness standard of review.

[35] I agree with the Minister that reasonableness is the only standard of review that applies. The IAD was interpreting its home statute, and while the interpretation of s 64 is important for the proper administration of IRPA, it does not have wider precedential value: Vavilov at 25, 58-62; Mason v Canada (Citizenship and Immigration), 2023 SCC 21 at para 47. Whether the IAD failed to grapple with Mr. Rebelo’s arguments is not a distinct issue. It relates to the IAD’s interpretation of s 64 and whether its reasons for dismissing Mr. Rebelo’s appeal adequately justified its decision.

[36] Reasonableness review focuses on the administrative decision and the justification offered for it: Vavilov at para 15; Mason at para 58. It is a deferential but robust form of review that considers whether the decision—both the outcome and the reasoning process that led to the outcome—is transparent, intelligible, and justified: Vavilov at paras 13-15, 82-87. The reviewing court’s role is to examine the reasons given by the administrative decision maker and determine whether the decision is based on an internally coherent and rational chain of analysis and whether it is justified in relation to the facts and law that constrain the decision maker: Vavilov at para 99; Mason at para 64.

[37] In short, the IAD’s decision is entitled to deference, but the reasoning process and outcome must be sufficiently transparent, intelligible, and justified to withstand reasonableness review.

[38] In addition to the primary issue of whether the IAD’s decision withstands reasonableness review, there are two secondary issues: (i) whether Mr. Rebelo can rely on new evidence that was not before the IAD; and (ii) whether the Court should certify a question of general importance. I address the certified question after the primary issue.

IV. New evidence

[39] Mr. Rebelo sought to admit an affidavit sworn by a paralegal at his counsel’s firm that attaches 11 articles and documents as exhibits. While this evidence was not before the IAD, Mr. Rebelo contends it is admissible because it falls within a recognized exception to the general rule that the record on judicial review should be restricted to the record that was before the decision maker: Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22. He states the exhibits are not controversial and they provide necessary background information that will assist the Court—for example, articles that explain the hardships associated with losing permanent resident status and receiving a deportation order.

[40] I agree with the Minister that the new evidence does not fall within a recognized exception to the general rule that documents that were not before the decision maker are inadmissible on judicial review: Access Copyright at para 19. The exhibits are not general background information, nor do they fall within another exception that was recognized in Access Copyright. While the Access Copyright exceptions are not a closed list, Mr. Rebelo does not argue that the evidence should be admitted on some other basis that respects the demarcation of roles between the reviewing court and the administrative decision maker. The new evidence is not admitted.

V. Reasonableness review

A. The parties’ positions

[41] As noted above, Mr. Rebelo contends the IAD’s decision was not responsive to his arguments, did not reflect a rational chain of analysis, and ran afoul of the relevant legal constraints bearing on it.

[42] According to Mr. Rebelo, Asphall and the IAD’s decision are inconsistent with the modern approach to statutory interpretation. The decisions do not meaningfully analyze the text, context, and purpose of s 64. They focus only on the text of s 64(1), without accounting for the context and purpose of the s 64 bar or the absurd outcomes of their interpretation.

[43] Mr. Rebelo states the IAD’s interpretation of s 64 upends the longstanding jurisprudence of Nabiloo and leads to absurd results, exposing him and those in a similar position—even those who are fully acquitted following a criminal appeal—to disproportionately harsh consequences. As the Supreme Court of Canada (SCC) explained in Mason (at paragraph 69):

…[A]n administrative interpretation may well be unreasonable if it fails to consider the potentially harsh consequences of its interpretation of a statutory provision for a large class of individuals, and whether, in light of those consequences, the legislature would have intended the provision to apply in that way.

[44] Mr. Rebelo contends it is absurd to base the IAD’s jurisdiction on a criminal sentence that no longer exists. Determining IAD jurisdiction as of the time a deportation order issued instead of when an appeal is filed is also at odds with s 687(2) of the Criminal Code, RSC 1985, c C-46, which says that an appellate judgment that varies a criminal sentence has the same force and effect as if it were a sentence passed by the trial court.

[45] Mr. Rebelo states the SCC cases of R v Pham, 2013 SCC 15, Tran v Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, and R v Wong, 2018 SCC 25 broadly establish that criminal sentences can be overturned if they fail to account for collateral immigration consequences such as the loss of an IAD appeal. Another absurd result of the IAD’s interpretation is that s 64 would preclude an IAD appeal even in cases where a sentence was overturned for that very reason.

[46] Mr. Rebelo states that at his own de novo criminal trial the judge considered the immigration consequences, including an IAD appeal, in imposing his sentence. When he reapplied to extend the time for appealing to the IAD, the Minister acknowledged that he “now has a right of appeal” and the IAD granted the extension. By granting the extension, Mr. Rebelo states the IAD implicitly decided it had jurisdiction to hear his appeal. However, the IAD dismissed his res judicata argument with a peremptory conclusion—that the June 2023 decision to extend the time for appealing the deportation order did not decide the jurisdictional question—and no analysis. A peremptory conclusion does not meet the reasonableness standard: Vavilov at para 102.

[47] The Minister submits that the IAD reasonably followed the law, and specifically Asphall, which was correctly decided.

[48] The Minister states that IRPA expressly limits the availability of an IAD appeal, consistent with Parliament’s objective of prioritizing national security and the expeditious removal of individuals ordered deported for serious criminality. Relying on the FCA’s decisions in Tapambwa and Subramaniam v Canada (Citizenship and Immigration), 2020 FCA 202, the Minister states that inadmissibility is an ongoing status, even if the basis for it changes, and Parliament made the Federal Court responsible for overturning inadmissibility findings where appropriate. Mr. Rebelo remains inadmissible despite the change in his conviction and sentence. Subsequent events did not restore his immigration status or a right of appeal.

[49] The Minister submits that the IAD considered and properly rejected Mr. Rebelo’s arguments. Tribunals are constrained by binding precedential decisions and must explain any divergence: Vavilov at para 112. There was no reason for the IAD to diverge from Asphall, and the decision to follow Asphall’s ruling on a question of law must be afforded deference. Counsel made the point more strongly in oral argument, stating that the IAD member was compelled to follow Asphall.

[50] The Minister relies on the principle in paragraph 11 of Garcia Kanga v Canada (Citizenship and Immigration), 2012 FC 482, and contends it is compatible with Vavilov even though Garcia Kanga predates Vavilov:

…[E]ven where there is divided Federal Court authority on a point of law, I do not agree that the Board is required to explain why it has adopted one view over the other. Presumably, Federal Court jurisprudence speaks for itself and the Board has no obligation to offer any additional interpretation of the legal authorities that it chooses to rely upon in resolving a point of law.

[51] Finally, the Minister argues that judicial comity mandates that I follow Asphall, even if I disagree with the decision.

B. Analysis

[52] Reasonableness review puts the decision maker’s reasons first: Vavilov at para 84. My task is to consider the IAD’s reasons and assess whether they meet the hallmarks of transparency, intelligibility, and justification. To perform this task, I am not bound to follow or agree with Asphall. Whether the IAD reasonably interpreted IRPA s 64 in light of conflicting statutory interpretations at the same level of court was not the issue that was before Justice Elliott in Asphall. The issue before me arises because of Asphall, which created divergent precedential authorities by disagreeing with Nabiloo.

[53] For the reasons below, I find the IAD’s reasoning process and outcome do not withstand reasonableness review.

(1) The IAD’s reasons

[54] The IAD’s decision that it lacked jurisdiction to hear Mr. Rebelo’s appeal rests on two main points:

• ·The IAD found that Asphall applied to Mr. Rebelo’s case because the change to the reference offence underlying his deportation order was factually indistinguishable from Asphall in that both cases involved a conviction that was subsequently set aside on appeal, as opposed to one that was upheld with a reduced sentence. In Mr. Rebelo’s case the criminal court did not uphold the manslaughter conviction and reduce the sentence, but rather, the manslaughter conviction was set aside and ceased to exist, which the IAD found to be similar to the ratio in Asphall.

• ·The IAD preferred the statutory interpretation of Asphall and gave three reasons for its preference: (i) the IAD agreed with some of Justice Elliott’s reasons for disagreeing with Nabiloo, stating that the obiter comments in Nabiloo, a decision that dates back to 2008, are inconsistent with the plain meaning of s 64, and the IAD has not adopted a settled interpretation of Nabiloo; (ii) criminal appellate cases, including SCC decisions, establishing that guilty pleas can be set aside and sentences reduced to permit access to an IAD appeal did not favour a Nabiloo interpretation because the courts were not interpreting s 64 and the courts’ statements about IAD appeal rights were based on the parties’ representations; and (iii) Mr. Rebelo’s arguments about the absurd consequences of Asphall did not account for jurisprudence establishing that removal orders become unenforceable if the underlying conviction is set aside.

(2) Flaws in the IAD’s reasons

[55] In my opinion, the IAD’s reasons exhibit the two fundamental flaws identified in Vavilov. The first point above exhibits a failure of rationality in the reasoning process. The IAD preferred Asphall’s interpretation of s 64 but its reasoning was inconsistent with that interpretation. The second point exhibits failures of justification. The IAD’s reasons for preferring Asphall were not responsive to Mr. Rebelo’s arguments and its decision on jurisdiction was not justified in view of statutory interpretation principles and other relevant constraints.

(a) Lack of rationality

[56] Mr. Rebelo had argued that his case was distinguishable from Asphall because Asphall did not address the impact of a successful criminal appeal that reduces a sentence to under six months. The Ontario Court of Appeal set aside Mr. Asphall’s conviction and ordered a new trial, but when Mr. Asphall appealed his deportation order the new trial had not occurred. The IAD agreed with Mr. Rebelo that “the Court in Asphall did not consider the consequences that the reduction of the sentence may have.” According to the IAD, however, Asphall could not be distinguished on this basis because Mr. Asphall’s case and Mr. Rebelo’s case both involved a conviction that was set aside on appeal. The IAD restricted its decision on jurisdiction to these facts, finding it “[did] not need to decide the impact of Asphall on a sentence reduction where the conviction is not quashed, as that is not at issue in this appeal.”

[57] The problem with this reasoning is that it suggests the IAD misunderstood Asphall. An Asphall interpretation of the s 64 bar leaves no room for considering how the conviction or sentence changed following a successful criminal appeal. According to Asphall, any type of change to the conviction or sentence that post-dates the ID’s decision is irrelevant because the only relevant sentence for s 64(2) is the one that existed at the time of the ID’s inadmissibility determination. If the sentence was at least six months at that point in time then the bar is triggered, there is no right of appeal to the IAD, and the bar can never lift. The ID would be the final decision maker and its decision could only be challenged by way of an application for leave and judicial review in the Federal Court. While the IAD stated that it preferred Justice Elliott’s statutory interpretation of the s 64 bar to Justice Snider’s interpretation in Nabiloo, its reasoning relied on post-ID considerations that are not relevant under Asphall.

[58] The way the IAD applied Asphall to the facts of Mr. Rebelo’s case is also problematic. An Asphall approach to jurisdiction should be a single question—at the time the ID determined that Mr. Rebelo was inadmissible for serious criminality, was the sentence imposed for his conviction at least six months? Instead, the IAD addressed three questions. The IAD stated that “the first important element of the analysis concerns the time at which appeal rights are lost.” It then went on to consider a second and a third issue—the effect of a material change of circumstances such that the conviction and sentence which caused the inadmissibility and loss of appeal rights no longer exist, and the legal status of the December 2022 conviction and sentence. After addressing all three, the IAD concluded “on these facts” that it had no jurisdiction to hear Mr. Rebelo’s appeal.

[59] I cannot follow the IAD’s logic. Under Asphall, once appeal rights are lost the inquiry ends. A material change of circumstances or new conviction and sentence are simply irrelevant. Furthermore, the IAD believed that Mr. Rebelo would regain a right of appeal with a new inadmissibility finding and a new deportation order based on the December 2022 conviction and sentence. It is unclear to me how this would happen when Mr. Rebelo remains inadmissible and without status because of a deportation order that has not been quashed and ostensibly cannot be appealed. Any new deportation order would be made against him as a foreign national, and foreign nationals do not have a s 63(3) right of appeal.

[60] The IAD’s reasons reveal an illogical chain of analysis and raise questions about its understanding of Asphall’s interpretation of the s 64 bar.

(b) Lack of justification

[61] The IAD’s reasons do not adequately justify its preference for Asphall over Nabiloo or its interpretation of the s 64 bar. In my view, the IAD did not meet its justificatory burden in view

 

of a number of constraints identified in Vavilov, outlined below and addressed in the sections that follow:

• ·The key precedential decisions: Nabiloo and Asphall were equally relevant constraints. It was not enough for the IAD to repeat some of Justice Elliott’s reasons for departing from Nabiloo, without any analysis.

• ·Statutory interpretation principles: The IAD did not engage in any form of statutory interpretation analysis to resolve the divergent interpretations in Asphall and Nabiloo. The reasons do not demonstrate that the IAD was alive to key elements for discerning legislative intent in order to reach an interpretation that is consistent with the text, context, and purpose of s 64.

• ·The IAD’s past practice and decisions that followed Nabiloo: The IAD did not justify a departure from the tribunal’s past practice and decisions that followed Nabiloo for 15 years—including in Mr. Rebelo’s own case.

• ·Other statutory and common law precedents: Criminal law principles and decisions were another constraint. The IAD did not consider whether they supported its interpretation, and it unreasonably dismissed Mr. Rebelo’s arguments that Asphall leads to absurd consequences at the intersection of criminal law and immigration law.

• ·Governing statutory scheme: The IAD did not try to interpret the limits of its authority in a way that best fit IRPA’s statutory scheme and objectives.

[62] Mr. Rebelo made some of these points in his written submissions to the IAD. The IAD’s reasons were not sufficiently responsive to his arguments and did not “reflect the stakes”: Vavilov at para 133. The IAD did not explain why its decision best reflects Parliament’s intention, despite the consequences.

(i) The key precedential decisions – Nabiloo and Asphall

[63] As noted above, the Minister argues that Asphall ruled on a question of law and the IAD was compelled to follow it. The Minister argues that Asphall did not upend previous jurisprudence, as Mr. Rebelo contends. Justice Elliott and the IAD recognized that Nabiloo was not binding, and Mr. Rebelo’s preference for the obiter comments in Nabiloo does not establish an error.

[64] I disagree with these arguments.

[65] While Asphall was a precedential decision that constrained the IAD, it was not the only constraint. The IAD had to address Asphall but it did not have to follow Asphall.

[66] Justice Snider’s interpretation of s 64 was the determinative issue in Nabiloo and her reasoning cannot be dismissed as obiter. The hypothetical scenario in paragraph 20 was Justice Snider’s response to an argument about the consequences of her interpretation. She was explaining why the consequences did not preclude a statutory interpretation that she found to be consistent with criminal law principles, case law, and the intent behind s 64 to prioritize security.

[67] In any event, the IAD did not find that Nabiloo was not binding. The IAD agreed with Mr. Rebelo that Asphall did not overrule Nabiloo and both decisions were valid. The IAD was right on this point. Justice Elliott was reviewing the IAD decision before her. She was not sitting in appeal of Justice Snider’s decision and could not overrule Nabiloo.

[68] Nabiloo and Asphall, two precedents at the same level of court that reached distinctly different interpretations of the s 64 bar, were equally relevant constraints. The IAD could agree with one or the other or diverge from both, provided it adequately justified its decision. Despite acknowledging the validity of both decisions, the IAD did not explain or analyze the critical differences between them.

[69] The Minister relies on the pre-Vavilov case of Garcia Kanga for the principle that, where Federal Court authorities are divided, an administrative decision maker does not have to explain why it adopts one line of authority over the other. The Minister contends it was reasonable for the IAD to rely on Justice Elliott’s thorough analysis.

[70] To the extent that the principle in Garcia Kanga has any application post-Vavilov, in my view it would have to be where a decision maker fully adopts the reasoning in one line of authority, and by doing so, meets the justificatory burden imposed on it by the interpretive constraints at play. Neither is true in this case. The IAD did not fully adopt Justice Elliott’s reasoning and made findings that conflict with an Asphall interpretation of s 64. Furthermore, the IAD could not meet its justificatory burden by repeating points from Asphall, without any analysis. Mr. Rebelo disputed Asphall. He argued that Asphall’s interpretation of the s 64 bar leads to harsh and absurd outcomes, and he urged the IAD to apply its expertise in interpreting its home statute and to continue following Nabiloo. The principle of responsive justification required the IAD to address these arguments.

(ii) Statutory interpretation principles

[71] To fulfill its own role in interpreting IRPA, the IAD had to demonstrate that it was alive to the elements for discerning legislative intent and explain why its decision was aligned with the text, context, and purpose of s 64: Vavilov at paras 118-120. This did not require a formalistic statutory interpretation exercise, but the IAD had to show, through its reasons, that its interpretation was consistent with the “modern principle” of statutory interpretation: ibid.

[72] I agree with Mr. Rebelo that the IAD did not justify its stated preference for Asphall. The IAD did not engage in any form of statutory interpretation analysis to resolve the disputed interpretation or explain why an Asphall interpretation was more consistent with the text, context, and purpose of s 64.

[73] The IAD and Justice Elliott focused on the text of s 64, without addressing context or the purpose of s 64. Neither decision addresses how denying a right to appeal an unenforceable deportation order furthers the security intention behind s 64 of deporting serious criminals, or how it furthers any other objective or purpose under IRPA.

[74] The IAD agreed with Justice Elliott that Nabiloo is inconsistent with the plain meaning of ss 64(1) and (2). In my view, this was an error. The words of s 64 are not plain and the analysis could not stop at a consideration of the text. Resolving the disputed interpretation of s 64 required the IAD to analyze the words in context and in their grammatical and ordinary sense harmoniously with IRPA’s scheme and objects and Parliament’s intention.

[75] Justice Elliott relied on the language of s 64(1) (“…has been found to be inadmissible on grounds of…serious criminality”) and the fact that inadmissibility is an ongoing status. I agree that a criminal appeal does not void the ID’s inadmissibility determination.[2] However, Parliament intended to preserve a right of appeal for some permanent residents who are inadmissible for serious criminality, and the criterion it chose was the length of their sentence. Parliament’s dividing line—a six-month sentence—indicates it was not concerned about delay in removing individuals with a shorter sentence while they pursue an IAD appeal.

[76] Justice Elliott interpreted the criminal sentence in IRPA s 64(2) to mean “the sentence imposed for the conviction at the time that the determination of inadmissibility was made by the ID.” I read this to mean that the IAD can consider the actual sentence at the time of the ID’s decision, even if the ID made a mistake. If Parliament intended for the ID’s decision itself to trigger the loss of appeal rights, I believe it would have used language more similar to the language of IRPA s 64(3), which says, “No appeal may be made under subsection 63(1) in respect of a decision that was based on a finding of inadmissibility on the ground of misrepresentation...” Where I differ from Justice Elliott is that I do not believe the s 64(2) language “serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least six months” necessarily precludes a consideration of the actual sentence at the time of an IAD appeal.

[77] The right to appeal a removal order to the IAD is an important procedural right under IRPA. The IAD can consider new evidence at a de novo hearing, and it has the power to set aside the ID’s decision and substitute its own determination. Section 64 carves out an exception to that right. In my view, an interpretation of s 64 that allows the IAD to consider what the sentence is at the time it decides whether to hear an appeal balances Parliament’s intention to afford a s 63(3) right of appeal to permanent residents with its intention to expeditiously remove “serious criminals”.

[78] Furthermore, the modern approach to statutory interpretation must account for any absurd or harsh consequences: Tran at para 31; Mason at para 69. I agree with Mr. Rebelo that the IAD’s decision did not account for the consequences of its interpretation of s 64. It was not enough for the IAD to assert that Nabiloo is inconsistent with the plain meaning of IRPA ss 64(1) and (2) and sweep aside Mr. Rebelo’s arguments about absurd consequences based on jurisprudence establishing that removal orders become unenforceable when the underlying conviction is set aside. Even if case law prohibits the Minister from using Mr. Rebelo’s deportation order to deport him, the order remains in effect and it continues to affect him. The IAD did not grapple with Mr. Rebelo’s inability to remedy the immigration consequences of the ID’s decision through an IAD appeal, or his argument that an Asphall interpretation deprives even those who are fully acquitted by a criminal appellate court of an important procedural right under IRPA.

[79] Contrary to Mason, the IAD did not consider whether Parliament would have intended the consequences of an Asphall interpretation. It did not consider whether Parliament would have intended to deprive permanent residents of an appeal right they would have had if their criminal appeal pre-dated the ID’s decision, or whether Parliament would have intended to deprive the tribunal responsible for deciding inadmissibility appeals of the power to correct an unenforceable removal order.

[80] The Minister submits that the limited availability of an IAD appeal reflects Parliament’s objective of prioritizing national security, and there are no absurd consequences because foreign nationals who are inadmissible under s 36(1)(a) can apply for permanent resident status based on humanitarian and compassionate (H&C) considerations: IRPA, s 25.

[81] I am not persuaded by these arguments.

[82] Justice Snider considered IRPA’s emphasis on security and explained why her interpretation is consistent with that objective. A Nabiloo interpretation bars an IAD appeal as soon as the s 64(2) conditions exist, and for as long as they exist.

[83] In my view, the Minister’s power to grant permanent resident status on H&C grounds is not a compelling reason to favour an Asphall interpretation. H&C relief under IRPA s 25 is an “override” or “safety valve”—it gives the Minister discretion to grant relief from IRPA’s requirements when such relief is justified by H&C considerations: Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 at paras 19, 63. In this case the issue is, what does IRPA require? If Mr. Rebelo has a right of appeal to the IAD then he does not need to resort to the “safety valve” of an H&C application. It is also relevant that an H&C application does not afford the same procedural rights or substantive remedies as an IAD appeal.

[84] The Minister also submits that IRPA s 64 should be read together with ss 49 and 63. Section 63(3) only provides a right of appeal for permanent residents and protected persons. Since Mr. Rebelo lost his permanent resident status when the deportation order was made in 2019 (by operation of s 49(1)(a)), he was a foreign national without a s 63(3) right of appeal in 2023, when he commenced the IAD appeal.

[85] The IAD did not make this point. In any event, while I accept that the Minister’s interpretation of ss 49(1) and 63(3) is consistent with the text of those provisions, I do not think it reflects a textual, contextual, and purposive interpretation. The Minister’s interpretation—that the IAD loses jurisdiction when permanent resident status is lost—was rejected in Rumpler. In Rumpler, the Court recognized the IAD’s jurisdiction to extend an appeal deadline after it expires, and thereby preserve a s 63(3) right of appeal that Parliament intended for permanent residents, even though Mr. Rumpler lost his permanent resident status on the day the appeal deadline expired (by operation of IRPA s 49(1)(b)): Rumpler at paras 26, 31. Justice Snider relied on Rumpler as authority for her statement that the IAD would have jurisdiction to extend the time for filing a s 63(3) appeal if the s 64 bar no longer applied. I find the reasoning in Rumpler and Nabiloo to be persuasive.

(iii) The IAD’s past practice and decisions that followed Nabiloo

[86] The IAD’s past practice and decisions that followed Nabiloo imposed a burden to explain why a different statutory interpretation was preferable: Vavilov at paras 112, 131.

[87] The IAD described Nabiloo as a decision that “dates to February 2008,” but Nabiloo was not outdated—the tribunal followed it for 15 years. And even though Parliament amended s 64 after 2008 (including in 2013, when it lowered the s 64(2) sentence from two years to six months), it did not make changes that would signal disagreement with or a departure from a Nabiloo interpretation of the s 64 bar.

[88] I respectfully disagree with Justice Elliott that Nabiloo does not represent the current law. In my view, her five points do not support such a conclusion or justify a departure from Nabiloo. I addressed the first point (about plain meaning) above. I do not see how Justice Elliott’s other points, listed below, justify a departure from Nabiloo:

• ·Justice Snider’s later decision, Almrei, contradicts Nabiloo: I see no contradiction. In Almrei, Justice Snider held that an administrative decision taken before a fundamental change in evidence is not a nullity or void ab initio (Almrei at para 46). She did not say otherwise in Nabiloo. Justice Snider recognized that Ms. Nabiloo’s deportation order would stand unless the IAD reversed it.

• ·The IAD did not have a settled interpretation of Nabiloo: Justice Elliott did not explain why this favoured her interpretation of s 64, and the IAD simply repeated the point without explanation. Justice Elliott relied on two IAD decisions as examples—Xu v Canada (Public Safety and Emergency Preparedness), 2018 CanLII 142843 (CA IRB) and Kidd v Canada (Public Safety and Emergency Preparedness), 2018 CanLII 61870 (CA IRB)—stating that the IAD agreed with Nabiloo in Xu but not in Kidd. However, the IAD did not disagree with Nabiloo in Kidd. The IAD distinguished Nabiloo. It held that the reasoning in Nabiloo did not apply to Mr. Kidd’s situation because the facts of his conviction and sentence never changed; rather, the law changed following an SCC decision (Kidd at paras 37-38). It is true that the tribunal’s application of Nabiloo was not settled in every respect. As previously noted, there was disagreement at the IAD level on when the s 64 bar lifts—in Mr. Asphall’s case, the panel found that the criminal appeal decision lifted the bar, and in Mr. Rebelo’s case, the panel found he had to wait for the outcome of his new trial (which was heard more than two years after the appellate court overturned his conviction). Affording different appeal rights for similarly situated individuals is undesirable and inconsistent with IRPA’s objective to maintain the integrity of the Canadian immigration system through fair and efficient procedures (IRPA s 3(1)(f.1)), but I do not think the variation that was occurring revealed a fundamental flaw in the Nabiloo interpretation that a successful criminal appeal can lift the s 64 bar.

• ·No Federal Court decisions cite Nabiloo for the proposition in paragraph 20: I do not see why this justifies a departure from Nabiloo or favours an Asphall interpretation. Asphall appears to be the first Federal Court decision to overturn the IAD for following Nabiloo.

• ·Rumpler dealt with inadmissibility due to criminality rather than serious criminality: As explained above, the key issue in Rumpler related to whether the IAD can extend the time for a s 63(3) appeal after a loss of permanent resident status. Justice Snider cited Rumpler for this point.

(iv) Other statutory or common law precedents

[89] In his IAD submissions, Mr. Rebelo argued that Asphall leads to absurd consequences at the intersection of criminal law and immigration law. He pointed to Tran, where the SCC considered it absurd to interpret IRPA s 36(1)(a) in a way that subjects a less serious offender to more serious immigration consequences, and argued that an Asphall interpretation similarly affords a right of appeal to someone who receives a short sentence for a criminal offence but denies that right to someone whose conviction is fully overturned. Mr. Rebelo also noted that: criminal sentences can be varied and guilty pleas can be struck for a failure to account for immigration consequences (Wong; Pham); appellate courts have reduced criminal sentences to permit access to an IAD appeal (R v Carlisle, 2016 ONCA 950 at para 6 and R v Al-Masajidi, 2018 ONCA 305 at paras 7-8, among others); and the trial judge at his own de novo criminal trial considered immigration consequences, including an IAD appeal, in imposing his sentence. He argued it would be absurd if a successful appellant is “out of luck” and denied the remedy for the trial court’s error.

[90] The Minister argues that the criminal cases Mr. Rebelo relied on do not address the proper interpretation of s 64, and the IAD was correct to dismiss his arguments on this basis. An inadmissibility finding has consequences, but the consequences Mr. Rebelo faces are not absurd.

[91] Before me, Mr. Rebelo also argued that the IAD’s interpretation of IRPA s 64 is at odds with Criminal Code s 687(2). An interpretation of s 64 that determines whether the IAD has jurisdiction based on a sentence that no longer exists as a matter of criminal law is another absurd result.

[92] In my view, it was unreasonable for the IAD to discount criminal cases and principles because the courts were not interpreting IRPA s 64.

[93] As Mr. Rebelo points out, the ID’s discretion is limited. The very basis for a s 36(1)(a) inadmissibility determination is an order that was made by a Canadian criminal court. The ID’s determination does not involve any real fact finding or analysis that applies a legal test to the facts—the Criminal Code prescribes the maximum punishment for an offence and a criminal court determines the conviction and sentence. Similarly, an appellate decision is a determination made by a higher Canadian criminal court. The effect of an appellate order on a trial court’s conviction and sentence is a matter of criminal law. The fact that a criminal sentence or plea that fails to account for immigration consequences can be overturned for legal error is also a matter of criminal law.

[94] Criminal principles and cases were therefore relevant to the question of how Parliament would have intended s 64 to operate, and they were an important constraint. The IAD did not consider whether criminal law principles and cases supported its interpretation of s 64 and it did not meaningfully grapple with Mr. Rebelo’s arguments about absurd consequences at the intersection of criminal law and immigration law. In my view, the Nabiloo interpretation of the s 64 bar is more aligned with criminal law principles and cases.

(v) Governing statutory scheme

[95] Because administrative decision makers receive their powers by statute, the governing statutory scheme may be the most salient aspect of the relevant legal context: Vavilov para 108. The IAD did not address IRPA’s governing statutory scheme. It did not try to interpret the limits of its authority—and whether a permanent resident is afforded or denied an important procedural right of appeal—in a way that best fit IRPA’s statutory scheme and objectives. Justice Elliott noted in Asphall that the IAD must not take extra-statutory powers (at paragraph 73). Equally, however, the IAD must not decline to hear appeals where Parliament has afforded that right.

[96] The Minister contends that Parliament gave the Federal Court responsibility for overturning inadmissibility findings, relying on Tapambwa and Subramaniam.

[97] In my view, Parliament gave the IAD primary responsibility for overturning inadmissibility findings—it is the competent appeal tribunal under Part 1, Division 7 of IRPA. Parliament restricted access to judicial review by the Federal Court—leave is required to commence an application for judicial review, and the application cannot be made until any right of appeal under IRPA is exhausted: IRPA, s 72(2)(a). In contrast to the procedural rights and legal remedies available on appeal to the IAD, the purpose of judicial review is more limited. In one of the decisions cited in Asphall, where the applicant sought to quash an ID’s deportation order following a successful criminal appeal that resulted in his acquittal, the Court described the purpose of judicial review in this way (Strungmann v Canada (Citizenship and Immigration), 2011 FC 1229 at paragraph 20):

[20]…[O]ne has to bear in mind that the purpose of a judicial review application is to ensure the legality, reasonableness or fairness of an administrative decision at the time it was rendered, not to decide issues which were never raised before or retroactively annul the decision on the basis of new evidence that did not exist before.

[98] With respect to Tapambwa and Subramaniam, the IAD did not rely on those decisions and in my view they are not directly applicable to the statutory interpretation question at issue here. Tapambwa and Subramaniam addressed whether statutory decision makers[3] who do not sit in appeal of ID decisions have the power to reconsider the ID’s inadmissibility determination. As Mr. Rebelo correctly points out, Tapambwa and Subramaniam did not involve a question of Division 7 and the IAD’s responsibility to determine inadmissibility appeals.

[99] I would add that the appellants in Tapambwa and Subramaniam sought to have their inadmissible status reconsidered because the ID found them inadmissible based on a legal test that later changed as a result of an SCC decision. That is not what Mr. Rebelo was asking the IAD to do. The circumstances of Tapambwa and Subramaniam were closer to Kidd, where Mr. Kidd tried to appeal an inadmissibility finding after the SCC changed the applicable test.

(3) Res judicata

[100] Mr. Rebelo argues that the jurisdictional issue in his case was res judicata because the IAD implicitly decided it in June 2023, when it applied Nabiloo to grant his extension request and permit his appeal to proceed.

[101] Mr. Rebelo is right that the IAD implicitly decided it had jurisdiction to hear his appeal when it granted the extension request. That said, any reviewable error in the IAD’s res judicata analysis is of no consequence. The Minister is correct that a tribunal cannot give itself jurisdiction that does not exist: Sherzad v Canada (Minister of Citizenship and Immigration), 2005 FC 757 at para 30.

C. Conclusion

[102] Mr. Rebelo has established that the IAD’s December 27, 2023 decision to dismiss his appeal was unreasonable. The decision was not sufficiently transparent, intelligible, and justified because the reasoning process was flawed and the IAD did not adequately justify its conclusion that it had no jurisdiction to hear Mr. Rebelo’s appeal.

VI. Certified question

[103] IRPA s 74(d) restricts appeals of judicial review decisions to cases where the reviewing court certifies a question of general importance. After the hearing, the parties filed written submissions on whether the Court should certify a question of general importance in this case.

[104] To be certified, the question must raise an issue of broad significance or general importance that transcends the interests of the parties and is dispositive of the appeal: Mason at para 37. The question must have been dealt with by the reviewing court and arise from the case rather than from the court’s reasons, and it cannot have been previously settled by the decided case law: Obazughanmwen v Canada (Public Safety and Emergency Preparedness), 2023 FCA 151 at para 28.

[105] Mr. Rebelo asks the Court to certify the following question:

When a former Permanent Resident who was issued a Deportation Order for Serious Criminality pursuant to s.36(1)(a) of the Immigration and Refugee Protection Act successfully appeals either the conviction underlying the Deportation Order or the sentence for that conviction to less than six months, is the Immigration Appeal Division’s jurisdiction to hear the appeal pursuant to s.64(2) of the Immigration and Refugee Protection Act determined at the time that the Deportation Order is issued, or at the time that the Deportation Order Appeal is filed with the Immigration Appeal Division?

[106] Mr. Rebelo submits that the proposed question: (i) is clearly dispositive because it squarely addresses the parties’ disagreement on the timing of a determination of the IAD’s jurisdiction to hear an appeal and whether the proper interpretation of s 64 is the one in Nabiloo, as Mr. Rebelo contends, or in Asphall, as the Minister contends; (ii) transcends the parties’ interests because the answer to the question determines whether individuals who lost permanent resident status based on an overturned conviction or sentence can seek to appeal their removal orders to the IAD; and (iii) has broad significance and is of general importance—it would resolve the inconsistency in the jurisprudence caused by Asphall, and guide the IAD in future cases.

[107] The Minister states that the proposed question does not meet the test for certification because: (i) it would apply to a former permanent resident who successfully appeals their conviction (like Mr. Rebelo) or their sentence (unlike Mr. Rebelo); it therefore rests on facts beyond this case and goes beyond the issue that needs to be decided; (ii) the reference to “former” permanent resident ignores that an individual must be a permanent resident to have a right of appeal under IRPA s 63(3); (iii) there is no inconsistency in the jurisprudence and the proposed question has been settled—Asphall relied on binding jurisprudence establishing that inadmissibility is an ongoing status, whereas Justice Snider’s comments were made in obiter and Justice Elliott explained why Nabiloo is not binding.

[108] I have already addressed the Minister’s arguments as part of my analysis on reasonableness review. For the reasons explained above, I disagree with the Minister’s arguments.

[109] I agree with Mr. Rebelo that this case raises a serious question of general importance that should be certified. However, I would modify Mr. Rebelo’s proposed question, to reflect what I believe is the core question of general importance. Furthermore, certified questions should be phrased in a way that accounts for the standard of review: Canada (Citizenship and Immigration) v Galindo Camayo, 2022 FCA 50 at paras 40-44.

[110] I certify the following question:

Is it reasonable for the IAD to find that IRPA ss 64(1) and (2) permanently deprive it of jurisdiction to hear a s 63(3) appeal of a removal order that was made against a permanent resident who was found inadmissible for serious criminality if the criminal sentence underlying the removal order was greater than six months at the time the inadmissibility determination was made?

VII. Remedy

[111] Mr. Rebelo asks the Court to set aside the IAD’s decision and return his matter to a differently constituted IAD panel. I agree that this remedy is appropriate.

[112] Mr. Rebelo also asks the Court to resolve the inconsistent interpretations under Nabiloo and Asphall by deciding the proper interpretation of IRPA s 64.

[113] When a reviewing court sets aside a tribunal’s decision on judicial review, the usual remedy is to send the matter back to the tribunal for reconsideration: Vavilov at para 141. On occasion, if returning the matter to the tribunal would serve no purpose, the reviewing court will not grant the usual remedy and instead it will decide the issue itself. Of course, if the IAD has jurisdiction to hear Mr. Rebelo’s appeal then this matter must be returned so the IAD can hear and decide his appeal. Therefore, the real remedy question is whether I should definitively decide on the proper interpretation of s 64 (or order the IAD to hear Mr. Rebelo’s appeal) because it would not serve a useful purpose to remit the interpretive question to the IAD for reconsideration: Vavilov at para 124.

[114] The Court’s discretion to decide an issue for itself must be exercised carefully because the administrator (here, the IAD) is responsible at law for deciding the merits—not the Court: Entertainment Software Association v Society of Composers, Authors and Music Publishers of Canada, 2020 FCA 100 at paras 99-100; Vavilov at para 124.

[115] I do not consider this to be a case where the Court should exercise remedial discretion to pronounce a definitive interpretation of s 64 or to order the IAD to hear Mr. Rebelo’s appeal. Based on the record before me, it is my opinion that a proper interpretation of s 64 would permit the IAD to hear Mr. Rebelo’s appeal. However, Justice Elliott had a different opinion, I do not sit in appeal of Asphall, and my decision is one more at the same level of court. I am certifying a question of importance, but if my decision is not appealed[4] then the IAD will have to interpret s 64 in accordance with statutory interpretation principles and other relevant constraints, which would include my decision and new submissions from the parties.

[116] While I am remitting the interpretive question to the IAD for reconsideration, I note that there is a need for a consistent interpretation across IAD panels and a clear understanding of which tribunal—ID or IAD—is the final decision maker. As I explained, an application for judicial review can only be made after any appeal right under IRPA is exhausted, and similarly situated individuals should not have different IAD appeal rights. The IAD should therefore consider if there are processes available to it (for example, constituting a three-member panel to hear this matter) that would help to achieve this goal.

JUDGMENT in IMM-704-24

THIS COURT’S JUDGMENT is that:

• 1.This application for judicial review is allowed.

• 2.The IAD’s December 27, 2023 decision is set aside and the matter is remitted to a different panel for redetermination.

• 3.The following question is certified: Is it reasonable for the IAD to find that IRPA ss 64(1) and (2) permanently deprive it of jurisdiction to hear a s 63(3) appeal of a removal order that was made against a permanent resident who was found inadmissible for serious criminality if the criminal sentence underlying the removal order was greater than six months at the time the inadmissibility determination was made?

"Christine M. Pallotta"

 

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	IMM-704-24
STYLE OF CAUSE:	LUIS CARLOS REBELO v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:	Toronto, Ontario
DATE OF HEARING:	NOVEMBER 6, 2024
POST-HEARING WRITTEN SUBMISSIONS ON A CERTIFIED QUESTION:	For the applicant: sEPTEMBER 25, 2025 For the respondent: October 6, 2025
JUDGMENT AND REASONS:	PALLOTTA J.
DATED:	OCTOBER 29, 2025

APPEARANCES AND WRITTEN SUBMISSIONS BY:

Keith MacMillan	For The Applicant
Charles Jubenville Sarah Merredew	For The Respondent

SOLICITORS OF RECORD:

Refugee Law Office Legal Aid Ontario Hamilton, Ontario	For The Applicant
Attorney General of Canada Toronto, Ontario	For The Respondent