Date: 20260108

Docket: IMM-8945-22

Citation: 2025 FC 1973

Ottawa, Ontario, January 8, 2026

PRESENT: Madam Justice Gagné

BETWEEN:

A.B., C.D., E.F., U.V., AND W.X.

Applicants

and

MINISTER OF CITIZENSHIP AND IMMIGRATION AND MINISTER OF FOREIGN AFFAIRS

Respondents

PUBLIC JUDGMENT AND REASONS

(Confidential Judgment and Reasons was issued on December 15, 2025)

I. Overview

[1] The Applicants are a group of Afghan citizens seeking a writ of mandamus to compel the Respondents to provide them with temporary resident permits [TRP]. Their request is based on “Facilitation Letters” that were issued by third parties between August 29 and September 3, 2021, naming the Applicants and stating they had been granted a Visa to enter Canada.

[2] These letters were issued in the context of the Respondents’ concerted effort to evacuate designated Afghan nationals from Afghanistan in 2021, and they were meant to assist persons navigating Taliban checkpoints on the way to Kabul International Airport.

[3] Since none of the Applicants had applied for a visa to come to Canada under the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] — or were in fact issued one, they assert that the Facilitation Letters were a promise made to them, based on the Crown prerogative, that they would be issued TRPs to enter Canada.

II. Background

A. The Facilitation Letters

[4] To address the Government of Canada’s commitment to welcome designated Afghan nationals to Canada, the Minister of Citizenship and Immigration [MCI] created several special programs and measures, particularly for those who closely assisted Canada during Canada’s mission in Afghanistan. These programs were established through the creation of various Temporary Public Policies [TPPs] pursuant to the MCI’s authority under section 25.2 of the IRPA. To commence an immigration application under these special programs, selected applicants were referred to the Department of Immigration, Refugee and Citizenship Canada [IRCC] by a referral partner such as Global Affairs Canada [GAC], or the Department of National Defence [DND].

[5] In August 2021, during the fall of the government of Afghanistan and the return to power of the Taliban, GAC learned that consular officials and clients, which included Canadian permanent residents, Canadian citizens, and their immediate family members, were being stopped at checkpoints while travelling to Kabul International Airport. To assist them in navigating the checkpoints, GAC issued Facilitation Letters.

[6] The GAC Facilitation Letter template reads as follows:

The Canadian Government validates that the names identified below are Canadian citizens and have been granted a VISA to enter Canada. Please allow these persons safe travel to the Hamid Karzai International Airport so that they can board their organized flight.

[7] GAC then communicated to IRCC that these Facilitation Letters were an effective means of getting clients past the checkpoints. In seeking to assist their own clients – Afghan nationals with immigration applications under one of the TPPs already underway – IRCC distributed the same letter to those applicants from August 19 to August 30, 2021, when the last evacuation flight operated by the United States left Kabul’s airport.

[8] On August 28, 2021, in response to reports of Facilitation Letters being used in countries around the world by individuals attempting to arrange travel to Canada, a message was sent by IRCC to Canadian consulates, international Canadian immigration officers, and senior staff at the Canadian Border Services Agency, communicating the following:

Please note that this letter is no longer valid and cannot be used for boarding flights to Canada. [… The Facilitation Letter’s] purpose was only to facilitate travel to the Hamid Karzai International Airport (HKIA) in Kabul through checkpoints in order to be available for Government of Canada organized evacuation flights, the last of which was on August 26 [2021].

[9] This message was sent again on August 30, 2021, and October 6, 2021.

B. Senator Marilou McPhedran, the International Federation of Football Associations [FIFA], ||||||||||||||||||||||||||||||||||||||||||||||||||||||||, and the Afghan Football Federation [AFF]

[10] In parallel to IRCC and GAC’s concerted efforts to repatriate Canadian citizens, permanent residents, as well as visa holders or applicants, some individuals and international organizations joined efforts to evacuate Afghan nationals that they considered at risk for different reasons, which included the Applicants. The following groups of individuals were involved in supporting the Applicants:

From Canada:

• -Senator Marilou McPhedran

• -Ms. Laura Robinson, a Canadian sports journalist and Senator McPhedran’s consultant

• -Mr. George Young, Chief of Staff to the then-Minister of Defence

• -Ambassador Stefanie McCollum, Canada’s then-Ambassador to Qatar.

From FIFA:

• -Mr. Andreas Graf, Head of Human Rights and Anti-Discrimination

• -Ms. Joyce Cook, Chief Social Responsibility and Education Officer

From the ||

• -||||||||||||||||||||||||

• -||||||||||||||

From the AFF:

• -Mr. Fazil Mohammed Shahab, Secretary General

[11] Mr. Young was provided a blank copy of the Facilitation Letter through an unknown colleague at GAC and transmitted it to Senator McPhedran and Ms. Robinson on August 25, 2021. The same day, Mr. Young modified the wording of the template, at the request of Senator McPhedran and Ms. Robinson, to remove the suggestion that the letter holders were Canadian citizens. The template was sent back to them with the following wording:

The Canadian Government validates that the names identified below have been granted a VISA to enter Canada. Please allow these persons safe travel to the Hamid Karzai International Airport so that they can board their organized flight.

[12] Ms. Robinson then went on to distribute this new Facilitation Letter, either personally or through Mr. Shahab from AFF, Mr. Graf from FIFA, or |||||||||||| from the ||, to individuals identified by all three organizations as being at risk from the Taliban. The Applicants were amongst these individuals; they were deemed to be at risk either because they were female soccer players, which was deemed illegal by the Taliban, or because they were |||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| In distributing this new Facilitation Letter, Ms. Robinson would add the names of each of the individuals identified by the none-governmental organisations to the letter, thus ensuring that everyone had their personalized letter.

[13] The Applicants all received their Facilitation Letter from the FIFA between August 29, 2021, and September 7, 2021, after IRCC’s August 28, 2021 message.

III. Issues and Test to be Met on a Mandamus

[14] The main issue raised by this application is whether the Facilitation Letters conferred TRPs upon the Applicants. The Applicants have broken down their arguments in the following sub-questions:

1. Were the Facilitation Letters issued pursuant to the Crown Prerogative?

2. Was Ms. Robinson authorized to add names to the Facilitation Letters and distribute them to the Applicants?

3. If the Facilitation Letters did not confer visas, are the Respondents estopped from reneging or declaring the document no longer valid?

4. Does the Respondents’ failure to issue the promised visas violate the Charter?

[15] The jurisdiction of this Court for issuing writs of mandamus is set out in subsection 18(1) of the Federal Courts Act, RSC, 1985, c F-7, and is further recognized by section 72 of the IRPA. A mandamus order compels the performance of a particular statutory duty, and issuing such an order is an extraordinary remedy that must be assessed on the facts of each case (Tapie v Canada (Citizenship and Immigration), 2007 FC 1048 at para 7. See also Oladele v Canada (Citizenship and Immigration), 2022 FC 1161 at para 28).

[16] The test applicable to writs of mandamus is set out by the Federal Court of Appeal in Apotex v Canada (Attorney General), 1993 CanLII 3004 (FCA), [1994] 1 FC 742 (FCA), (aff’d 1994 CanLII 47 (SCC)) and was recently summarized by this Court in Sharafaldin v Canada (Citizenship and Immigration), 2022 FC 768 at paragraph 34:

(1) there must be a public legal duty to act;

(2) the duty must be owed to the applicant;

(3) there must be a clear right to performance of that duty;

(4) where the duty sought to be enforced is discretionary, certain additional principles apply;

(5) no other adequate remedy is available to the applicant;

(6) the order sought will have some practical value or effect;

(7) there is no equitable bar to the relief sought; and

(8) on a balance of convenience an order of mandamus should be issued.

IV. Analysis

[17] First, the Facilitation Letters are not visas; they do not meet the requirements of the IRPA and were not issued by IRCC under any one of the programs put in place to welcome designated Afghan nationals to Canada.

[18] Second, the Applicants were not part of the groups of individuals GAC and IRCC destined the Facilitation Letters to; they are not Canadian Citizens, permanent residents or Visa holders or applicants, and they have not been referred to IRCC by GAC or DND. In addition, the Applicants received these letters over three days after Canada had ceased evacuation flights, and at least one day after IRCC declared the Facilitation Letters no longer valid.

A. Were the Facilitation Letters issued pursuant to the Crown Prerogative?

[19] The Applicants submit that the legal basis for the Facilitation Letters is the Crown prerogative. In doing so, they say that the Court can reach one of two conclusions, either:

1. Mr. Young exercised legal authority expressly or impliedly delegated to him by the Minister of Defense to create the Facilitation Letters; or,

2. That political staff at IRCC’s Office and/or at GAC’s Office provided the Facilitation Letters to Mr. Young, acting pursuant to the Crown prerogative, under legal authority impliedly or expressly delegated to them by their respective Minister at the time.

[20] Crown prerogative is the “residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown” and is “a limited source of non-statutory administrative power accorded by the common law to the Crown” (Canada (Prime Minister) v Khadr, 2010 SCC 3 at para 34).

[21] The Applicants assert that three Crown prerogatives apply in this case. The Crown prerogatives over foreign affairs, the admission and exclusion of aliens to Canada, and war and peace, including the military.

[22] The Crown prerogative over foreign affairs includes not only the making of treaties and diplomatic relations, but also consular functions. The latter, as defined in the Vienna Convention on Consular Relations, incorporated into domestic law by the Foreign Missions and International Organizations Act, SC 1991, c 41, includes “issuing passports and travel documents to nationals of the sending State, and visas or appropriate documents to persons wishing to travel to the sending State” (Article 5(d)). The Applicants submit that, because IRCC did not claim to have issued the letters under the IRPA, that they must have been issued under the Crown prerogative over foreign affairs.

[23] The Crown prerogative over the admission and exclusion of aliens to Canada is, according to the Applicants, a derivative of the foreign affairs prerogative. The Applicants cite several cases in support of the acceptance of this prerogative by this Court, including Canada (Minister of Citizenship and Immigration) v Obodzinsky (TD), 2002 FCT 943 at paragraphs 49-54, and Canada (Minister of Citizenship and Immigration) v Kisluk, 1999 CanLII 8351 (FC) at paragraph 164. Such a prerogative, although the Applicants submit is largely unused, provides a legal basis for the Facilitation Letters that does not lie within the IRPA.

[24] The Crown prerogative over war and peace was recognized by the Federal Court of Appeal in Canada v Operation Dismantle Inc., 1983 CanLII 4977 (FCA) at 779 (aff’d 1985 CanLII 74 (SCC)). This prerogative, also derivative of the foreign affairs prerogative, forms the official basis for DND’s deployment of the Canadian Armed Forces [CAF] internationally, including during the evacuation of individuals from Afghanistan in 2021. The Applicants point to a March 2020 document that outlines how “… the domestic legal authority will flow from the exercise of the Crown Prerogative in respect of national defense and national security” (Department of National Defence, The Crown Prerogative as applied to Military Operations).

[25] The Applicants suggest that section 24 of the IRPA has not extinguished the Crown prerogative to issue visas to aliens. The Applicants point to both paragraph 35 of Khadr, which found that section 10 of the Department of Foreign Affairs and International Trade Act, RSC, 1985, c E-22 (now s. 10 of the Department of Foreign Affairs, Trade and Development Act, SC 2013, c 33, s 174) did not extinguish the foreign affairs prerogative, and DND’s official position that subsections 31(1) and 33(1) of the National Defence Act, RSC, 1985, c N-5, have not extinguished the prerogative power to deploy the CAF internationally.

[26] With all due respect, I disagree with the Applicants.

[27] In a democracy, the rule of law is germane, and Parliament’s enactments must be followed. Parliament, through the IRPA, provides comprehensive rules governing how individuals are permitted to enter Canada, including rules addressing various potential bases for entry, and how those decisions will be made. Any decision-making about the granting of a visa or status in Canada to a foreign national must occur in accordance with the IRPA and its regulations.

[28] As stated by the Supreme Court in Khadr:

[34] The prerogative power is the “residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown”: Reference as to the Effect of the Exercise of the Royal Prerogative of Mercy Upon Deportation Proceedings, [1933] S.C.R. 269, at p. 272, per Duff C.J., quoting A. V. Dicey, Introduction to the Study of the Law of the Constitution (8th ed. 1915), at p. 420. It is a limited source of non‑statutory administrative power accorded by the common law to the Crown: Hogg, at p. 1-17.

[29] The Crown prerogative can be set aside or otherwise limited by clear and express statutory provisions (Ross River Dena Council Band v Canada, 2002 SCC 54 at para 4). By enacting the IRPA, Parliament dictated rules for the issuance of visas to enter Canada. Subsection 11(1) of IRPA requires that:

A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.

[30] Parliament has designated the MCI as the enabling authority under the IRPA (except for matters relating to special advocates – see section 4) and only the MCI may designate persons or a class of persons as officers to carry out the purposes of any provisions of the IRPA (section 6).

[31] In my view, to find that the Facilitation Letters were issued under the Crown prerogative would be an affront to Parliamentary sovereignty. Parliamentary sovereignty recognizes the legislature’s power to make laws without legal limits or constraints (Reference re Pan-Canadian Securities Regulation, 2018 SCC 48 at para 54). Parliament’s authority cannot be effectively skirted by the executive power. As noted by the Supreme Court in Ross River, “what use would there be in imposing limitations if the Crown could at its pleasure disregard them and fall back on the prerogative?” (para 4).

[32] The Applicants’ arguments regarding the Crown prerogative must therefore fail.

B. Was Ms. Robinson authorized to add names to the Facilitation Letters and distribute them to the Applicants?

[33] The Applicants submit that the Crown prerogative powers were delegated to those who issued the Facilitation Letters to the Applicants. In support of that assertion, the Applicants refer to the testimony provided by then Minister of National Defence Harjit S. Sajjan before the Standing Committee on Citizenship and Immigration of the House of Commons, whereby he stated he “directed Mr. Young to send names of Afghan nationals whose evacuation individuals had requested to an interdepartmental working team during the Afghan evacuation in 2021”.

[34] However, that is not quite Minister Sajjan’s testimony. The chair of the committee asked Minister Sajjan:

Minister, my questions will pertain to a document entitled “Visa Facilitation Letter”, which was sent by your former chief of staff, George Young, to Senator McPhedran, who then, in turn, sent it to several hundred Afghan nationals for the purpose of attempting to evacuate them from Afghanistan.

At the time that Mr. Young sent Senator McPhedran the facilitation letter template, were you aware that he had done so?

[35] And Minister Sajjan’s clear answer was:

To answer that question very directly, I was aware that facilitation letters were used because of the obstacles in the way of getting people to the airport, but, no, I did not authorize, nor was I aware of, how the dissemination of those letters was being done.

[36] Not only was Mr. Young, a political staff member, not authorized by the MCI (or by the Minister of National Defence, the Minister he worked for) to grant visas to foreign nationals identified by non-governmental individuals or organisations, but he did not expressly or impliedly authorize Ms. Robinson to do so.

[37] As stated above, delegation is contemplated under the IRPA in different contexts. Section 6 outlines that the MCI may designate, or delegate selected individuals to carry out any purpose of the IRPA, but that such designations and delegations must be in writing and shall “… specify the powers and duties of the officers so designated” (s. 6(1)).

[38] What is not contemplated under the IRPA is sub-delegation, as there is a general presumption against sub-delegation in administrative law. Sometimes referred to as the Latin maximum delegatus non potest delegare, the principle is simply that a delegate may not sub-delegate. The Federal Court in Morton v Canada (Fisheries and Oceans), 2015 FC 575 at paragraph 79 is helpful in this regard:

Sub-delegation is “the granting by a delegate to another…of some part of the authority granted to the delegate by Parliament” (Robert W. Macaulay and James L.H. Sprague, Practice and Procedure before Administrative Tribunals (loose-leaf) (Toronto: Carswell, 1988) (2012 updated) at 5-20)”.

[39] While there is a general presumption against sub-delegation (Morton at 79), there are some exceptions. Sub-delegation can only be permissible when “… the action is purely administrative or of such a character that no significant degree of discretion or independent judgment is involved” (Morton at para 80).

[40] As such, Ms. Robinson could not have been sub-delegated the authority to add names to the Facilitation Letters at her absolute discretion or at the recommendation of any third-party non-governmental individuals or organizations — let alone issue visas to foreign nationals. This action is not “purely administrative” as contemplated by Morton.

[41] This unfortunate situation is, at best, the result of a poor understanding of the purpose of the Facilitation Letters, and of the Canadian immigration system by Mr. Young, Senator McPhedran, Ms. Robinson, and third-party organizations.

[42] The Applicants’ assertion that Ms. Robinson had been delegated the authority to act on behalf of the IRCC must fail.

C. If the Facilitation Letters did not confer visas, are the Respondents estopped from reneging on declaring the document no longer valid?

[43] At a high level, promissory estoppel is an equitable defence that requires a legal relationship between two parties, a promise that is intended to affect that relationship, and the reliance of this promise. It is typically invoked in situations involving parties to contract, including insurance policies (Trial Lawyers Association of British Columbia v Royal & Sun Alliance Insurance Company of Canada, 2021 SCC 47, Maracle v Travellers Indemnity Co of Canada, 1991 2 SCR 50) and real property transfer (Dunn v Vicars, 2009 BCCA 477).

[44] Public law promissory estoppel, the type of estoppel advanced by the Applicants, is used to enforce a promise made by a government organization and requires a party to meet a markedly similar test. In Immeubles Jacques Robitaille inc v Québec (City), 2014 SCC 34, the Supreme Court of Canada noted that public law promissory estoppel is like the ordinary, or “private law,” promissory estoppel, in requiring “… proof of a clear and unambiguous promise made to a citizen by a public authority in order to induce the citizen to perform certain acts. In addition, the citizen must have relied on the promise and acted on it by changing his or her conduct” (Immeubles Jacques Robitaille at para 19).

[45] However, the Supreme Court also noted the significant distinctions to be made between private law and public law promissory estoppel:

[20] …the doctrine of estoppel must yield in the public law context to an overriding public interest and may not be invoked to prevent the application of an express legislative provision (Mount Sinai, at para. 47; St. Ann’s Island Shooting and Fishing Club Ltd. v. The King, 1950 CanLII 28 (SCC), [1950] S.C.R. 211, at p. 220).

[21] Furthermore, although the doctrine of estoppel has been applied against public authorities in the past, the promises made by the representatives of the authorities in those cases were not unlawful, or were actually consistent with a statutory discretion (Re Multi-Malls Inc. and Minister of Transportation and Communications (1976), 1976 CanLII 623 (ON CA), 14 O.R. (2d) 49 (C.A.); Sous-ministre du Revenu du Québec v. Transport Lessard (1976) Ltée, 1985 CanLII 2965 (QC CA), [1985] R.D.J. 502 (C.A.); Aurchem Exploration Ltd. v. Canada (1992), 1992 CanLII 8524 (FC), 91 D.L.R. (4th) 710; Kenora (Town) Hydro Electric Commission v. Vacationland Dairy Co-operative Ltd., 1994 CanLII 105 (SCC), [1994] 1 S.C.R. 80).

[22] As Binnie J. stated in Mount Sinai, “[p]ublic law estoppel clearly requires an appreciation of the legislative intent embodied in the power whose exercise is sought to be estopped” (para. 47).

[46] In my view, the public law of promissory estoppel cannot be applied against the Respondents in this case. There was no promise made to the Applicants by a Canadian official, and there was no inducement. As stated by the Federal Court of Appeal in Tapambwa v Canada (Citizenship and Immigration), 2019 FCA 34, “the most obvious limitation on the doctrine of estoppel is that it cannot be invoked so as to give an authority powers which it does not in law possess” (at para 67). Mr. Young was not authorized to issue visas to foreign nationals, neither were Ms. Robinson and other third-party individuals and organizations authorized to issue hundreds of Facilitation Letters around the world.

[47] And even if there was a promise made, that promise would not be enforceable against the Government as it would override or otherwise prevent the express legislative provisions in subsections 20(1) and 21(1) of the IRPA, and the larger scheme contemplated therein. Accepting the Facilitation Letters as being an issuance of visas would effectively override the provisions of the IRPA, as it would provide for anyone who had received this letter to be granted a visa, regardless of whether the requirements of the IRPA were met.

[48] This would be an affront to Parliamentary sovereignty and the rule of law.

D. Does the Respondents’ failure to issue the promised visas violate the Charter?

[49] The Applicants argue that Canada’s failure to issue them the promised visas violates their right to life, liberty and security of the person guaranteed by section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[50] As stated above, the Applicants were not promised visas by the IRCC or any delegate of IRCC. This finding should be enough to dispose of the Applicants’ Charter claim. However, considering this decision is likely to be appealed, I will assess the remainder of the Applicants’ arguments.

[51] The Applicants’ submissions that, as non-citizens residing outside Canada, they had a nexus to Canada largely hinges on their Crown prerogative argument. They assert that the nexus to Canada exists by virtue of the state action – the issuance of the Facilitation Letters and the permission granted to Ms. Robinson to add names – all of which occurred in the National Capital Region at the Minister’s Offices for the DND, GAC, and/or IRCC. Additionally, the nexus to Canada can also be found through Mr. Young’s actions when he provided Ms. Robinson with the Facilitation Letter template.

[52] The Applicants submit that their situation is not different in any relevant respect from that of refugee claimants. Referring the Court to the Supreme Court’s findings in Singh v Minister of Employment and Immigration, [1985] 1 S.C.R. 177, they argue that section 7 Charter rights can be claimed by persons who are not yet inside Canada, if they have a “well-founded fear of persecution”.

[53] First, I agree with the Respondents that the Charter does not apply to the risks that the Applicants face in Afghanistan since these risks arise from the laws and actions of foreign entities, not from any identified laws or actions of any Canadian (or provincial and territory) state actor to which the Charter could apply (Charter, section 32; Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10 at para 69). The Charter applies to Canadian officials’ extraterritorial actions when Canada participates in the activities of a foreign state that are contrary to Canada’s international obligations or fundamental human rights norms (Khadr at para 14; R v Hape, 2007 SCC 26 at para 52; Canada (Justice) v Khadr, 2008 SCC 28 at para 19). That is obviously not the case here.

[54] I also agree with the Respondents that the Applicants lack a “nexus to Canada” and that as such, they cannot benefit from the Charter protection. They are not citizens, they are not physically present in Canada, nor are they subject of criminal proceedings in Canada (Canadian Security Intelligence Service Act (CA) (Re), 2022 FC 1444 at paras 170-171; Slahi v Canada (Justice), 2009 FC 160 at paras 47-48, 52 (affirmed Slahi v Canada (Justice), 2009 FCA 259); Toronto Coalition to Stop the War v Canada (Public Safety and Emergency Preparedness), 2010 FC 957 at para 81; Zeng v Canada (Attorney General), 2013 FC 104 at paras 70-72).

[55] As stated above, the Crown prerogative is not at play since the government did not issue the Facilitation Letters to the Applicants, nor did they take any action affecting their risk in Afghanistan. The Applicants were not eligible under any of the TPPs, nor did they even apply under any of these programs. In addition, they all received their Facilitation Letters from non-governmental third parties who were not authorized to disseminate them, nor were they delegated any power under the IRPA.

[56] Finally, the Applicants’ hardship in Afghanistan has no causal link with an identified Canadian state action. Canada has not caused, contributed to, or in any way encouraged the risk the Applicants face there, nor does Canada have any control or meaningful influence over their difficult situation in Afghanistan. This causal link is rather with third-party non-governmental actions. Government inaction, without more, cannot be the basis for a section 7 Charter claim (Canada v Boloh 1(a), 2023 FCA 120 at paras 44, 47-48; Gosselin v Québec (Attorney General), 2002 SCC 84 at paras 75, 77, 81-84).

[57] Unfortunately, the Applicants’ Charter claim must also fail.

V. Questions for Certification

[58] I have decided to address the Respondents’ preliminary objection in this section as, if it is well founded, there is no need for the certification of questions of general importance to grant a right of appeal of this decision.

[59] The Respondents argue that the purported decision-makers and subject matter in this application for judicial review cannot be the subject of an application or a decision under the IRPA, as the DND and GAC have no authority under the immigration legislative scheme. Even if the MCI had exercised the Crown prerogative authority over the admission of aliens, the source of that authority would not be the IRPA.

[60] As an exercise of the Crown prerogative is derived from the common law, decisions on immigration status not taken pursuant to the IRPA fall beyond the purview of section 72 of the IRPA and must be pursued via the process set forth under section 18.1 of Federal Courts Act. If the Respondents’ position is correct, the parties have an automatic right to appeal this decision.

[61] However, if they are not — which is the conclusion that my previous findings lead me to — I agree with the parties that I need to assess whether the proposed questions meet the certification requirements.

[62] Paragraph 74(d) of the IRPA limits the ability of judicial review cases in the immigration context to be appealed. In order for a decision to be appealable, the Court must certify one or several questions of general importance – meaning, the question or questions not only fall within the scope of paragraph 74(d) of the IRPA, but they also raise issues that would transcend the interests of the parties and raise an issue of broad significance or general importance (Mason v Canada (Citizenship and Immigration), 2023 SCC 21 at para 37, relying on Lunyamila v Canada (Public Safety and Emergency Preparedness), 2018 FCA 22 at para 46. See also Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at para 36).

[63] Before the hearing, both parties proposed several questions for certification.

[64] At the hearing, I asked the parties to provide the Court with additional submissions as to i) whether the proposed questions met the certification requirement, and ii) how the certification of the proposed questions would be affected if the Court were to find that the evidence does not establish the facts based on which the Crown prerogative was exercised as alleged by the Applicants in their case.

[65] The parties, unable to agree on proposed certified questions, both proposed their own serious questions of general importance that would be worthy of certification.

[66] The Applicants propose the following questions:

1. Did the Immigration and Refugee Protection Act extinguish the Crown prerogative over the admission and exclusion of aliens to Canada?

2. Can a Minister delegate the exercise of the Crown prerogative to Ministerial staff who is not part of the career civil service, including in another Minister’s office?

3. Can a government official permit a private individual to add a name to a Facilitation Letter template that the government official provided to that individual?

4. Can the doctrine of public law promissory estoppel in principle require the IRCC Minister to grant status to individuals?

5. Can the Charter apply to non-citizens who do not fall within one of the categories set out by the Federal Court in Slahi v. Canada (Justice), 2009 FC 160?

[67] On the other hand, the Respondents propose the following three categories of questions:

Crown Prerogative

1. Given that Parliament has enacted rules governing the admission of foreign nationals into Canada, can an aspect of prerogative authority alternatively be relied upon to ground a purported decision authorizing the person’s entry to Canada”?

2. In the absence of a legislative or other instrument providing for it, can an individual who is not a government official exercise prerogative authority?

3. Does the exercise of the Crown prerogative give rise to a matter subject to judicial review pursuant to s. 72 of the IRPA?

Public Law Promissory Estoppel

4. Do the Facilitation Letters that the applicants received from non-governmental organizations represent the promise of a visa enforceable by public law promissory estoppel?

5. Does public law promissory estoppel apply to a promise made by an individual who lacks the authority to bestow the promised right?

6. Can public law promissory estoppel be used to compel the government to grant a visa to an individual who has not applied for, nor met the legislative requirements associated with, that visa?

Application of the Charter

7. Does the Charter apply to the risks that the Applicants face at the hands of foreign entities in Afghanistan, absent any participation by Canadian officials in the activities of these entities?

8. Do the Applicants, as foreign nationals outside of Canada with no connection to Canada, have section 7 Charter rights?

[68] For each or any of the proposed questions to rise to the level of being dispositive, the Court should find that the evidence on the record establishes the factual underpinnings as alleged by the Applicants – principally, that Mr. Young was properly authorized, under the Crown prerogative, to issue Facilitation Letters and delegate that authority to Ms. Robinson, by either the Minister of DND, the Minister of GAC, or the MCI.

[69] As stated above, I find that the evidence does not support such a finding.

[70] Despite this, and considering the particularly unique nature of this case, together with the fact that I might be wrong in finding that i) section 24 of the IRPA has extinguished the Crown prerogative to issue visas to foreign nationals, and ii) this Application falls under section 72 of the IRPA and not under section 18.1 of the Federal Courts Act, I will certify the three following questions:

1. Given that Parliament has enacted rules governing the admission of foreign nationals into Canada, can an aspect of prerogative authority alternatively be relied upon to ground a purported decision authorizing the person’s entry to Canada?

2. In the absence of a legislative or other instrument providing for it, can an individual who is not a government official exercise prerogative authority?

3. Does the exercise of the Crown prerogative give rise to a matter subject to judicial review pursuant to s. 72 of the IRPA?

[71] The issues raised by these three questions in my view transcend the interests of the parties and is of broad significance and general importance because it speaks to the Canadian federal government’s prerogative authority, and how such authority, absent an express legislative scheme, can be judicially reviewed. These three questions will be certified.

VI. Conclusion

[72] For the above reasons, this application for judicial review is dismissed. However, three of the proposed questions are certified for appeal.

[73] No costs are granted.

 

JUDGMENT IN IMM-8945-22

THIS COURT’S JUDGMENT is that:

1. The Applicants’ application for judicial review is dismissed.

2. The following questions are certified:

• a)Given that Parliament has enacted rules governing the admission of foreign nationals into Canada, can an aspect of Crown prerogative alternatively be relied upon to ground a purported decision authorizing the person’s entry to Canada?

• b)In the absence of a legislative or other instrument providing for it, can an individual who is not a government official exercise prerogative authority?

• c)Does the exercise of the Crown prerogative give rise to a matter subject to judicial review pursuant to section 72 of the Immigration and Refugee Protection Act, SC 2021, c 27?

3. No costs are granted.

blank	"Jocelyne Gagné"
blank	Judge

FEDERAL COURT

SOLICITORS OF RECORD

	Docket:	IMM-8945-22
STYLE OF CAUSE:		A.B. ET AL v MINISTER OF CITIZENSHIP AND IMMIGRATION ET AL
PLACE OF HEARING:		Toronto, Ontario
DATE OF HEARING:		SEPTEMBER 29, 2025
JUDGEMENT AND REASONS:		Gagné J.
CONFIDENTIAL JUDGMENT AND REASONS:		DECEMBER 15, 2025
PUBLIC JUDGMENT AND REASONS:		JANUARY 8, 2026

APPEARANCES:

Maureen Silcoff Sujit Choudhry	FOR THE APPLICANTS
Martin Anderson Amy King Aida Kalaj Jung Desmond	FOR THE RESPONDENTS

SOLICITORS OF RECORD:

Silcoff Shacter Toronto, Ontario	FOR THE APPLICANTS
Haki Chambers Global Toronto, Ontario	FOR THE APPLICANTS
Attorney General of Canada Toronto, Ontario	FOR THE RESPONDENTS