Docket: IMM-293-24
Citation: 2025 FC 486
Ottawa, Ontario, March 17, 2025
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN: |
A.B. |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
[1] This is an application for judicial review of a December 20, 2023, decision by the Immigration Division [ID] that partially granted the Applicant’s interlocutory motion for disclosure. This motion is part of the Applicant’s broader abuse of process motion before the ID. In its decision, the ID granted access to a Forensic Accounting Report but refused to order disclosure of evidence from immigration authorities that the Applicant sought solely to prove that the section 44 referral for admissibility assessment was a disguised extradition process. The ID explained that it lacked jurisdiction under the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act] to assess the motive behind such a referral.
[2] This application raises two key issues. First, whether the application for judicial review is premature given the interlocutory nature of the decision under review. Second, whether the ID reasonably concluded that it lacked jurisdiction to consider a disguised extradition claim.
[3] The Applicant is a citizen of the People’s Republic of China. He landed in Canada on October 1, 2006, with his family and obtained Canadian permanent resident status. He made trips back to China in 2006, 2009, 2010, and 2011, maintaining personal and business ties with his country of origin.
[4] Beginning in early 2014, the Canada Border Services Agency [CBSA] initiated an investigation into the Applicant after receiving information from Chinese authorities alleging criminal conduct. The criminality concerns arise from two convictions in China. In 2004, the Applicant was convicted of contract fraud, and, in 2013, he was convicted of bribery of an official in connection with land-development rights in Beijing. On March 15, 2013, at the Chinese government’s request, an INTERPOL Red Notice was issued against the Applicant.
[5] By November 17, 2014, CBSA had gathered preliminary materials and issued a procedural fairness letter outlining potential inadmissibility concerns. The Applicant responded on January 29, 2015, denying any wrongdoing. In March 2015, CBSA’s investigative officer requested FINTRAC information regarding financial transactions linked to the Applicant. On June 9, 2015, CBSA received FINTRAC results indicating suspicious fund transfers. A second procedural fairness letter was issued on July 8, 2015, to which the Applicant replied on October 15, 2015.
[6] On March 10, 2016, a Forensic Accounting Report was placed on the Applicant’s file. On April 11, 2016, CBSA issued a section 44(1) report alleging that the Applicant may be inadmissible on grounds including serious criminality under section 36 of the Act, membership in an organization engaged in transnational wrongdoing per section 37 of the Act, and misrepresentation pursuant to section 40 of the Act.
[7] On April 26, 2016, the Minister of Citizenship and Immigration [Minister] formally referred the matter to the ID for an admissibility hearing. Concurrently, between 2013 and 2015, the Applicant’s immediate family members in China faced extended detention. His brother was detained for 21 months and his sister-in-law for approximately 10 months, allegedly as part of a pressure campaign by Chinese authorities to compel his return. In June 2015, the Applicant’s sister-in-law, reportedly under compulsion, traveled to Canada to persuade him to abandon his Canadian proceedings and return to China. The Applicant’s niece, who was studying in Canada, was also contacted via WeChat and pressured by Chinese authorities to convince him to return.
[8] After three years of limited activity, the ID resumed its proceedings in 2019. On March 20, 2019, the Applicant received a disclosure package from CBSA. In April 2019, the immigration authorities contacted his counsel to begin scheduling the admissibility hearing, and a pre-hearing conference was held in June 2019, during which the Applicant signaled his intention to commence multiple motions, including allegations of abuse of process.
[9] One legal and two administrative proceedings initiated by the Applicant provide important context for understanding the decision under review.
[10] After the CBSA issued section 44 reports alleging inadmissibility and referring the matter to the ID for an admissibility hearing, the Applicant immediately sought judicial review in this Court. He challenged both the reports issued under subsection 44(1) and the referral initiated under subsection 44(2). On October 3, 2016, the Court denied leave to proceed. The ID consequently retained jurisdiction to carry on with the admissibility hearing.
[11] Separately, the Applicant sought to exclude evidence obtained from Chinese authorities, arguing that it was secured through torture or intimidation. Specifically, the Applicant alleged that between 2014 and 2015, the CBSA gathered key documents or statements from China’s Public Security Bureau [CPSB], which he contends were secured improperly through torture.
[12] The motion was first heard in the Fall of 2019, when the Applicant brought a Charter- and Act-based application to exclude the CPSB materials. Hearings before the ID began in October 2019, but were extended into early 2020 to allow the Minister to file reply evidence. The matter then faced additional delays due to hearing availability and the onset of the COVID‑19 pandemic.
[13] In late 2020, an internal reassignment of decision-makers within the ID required much of the evidence to be reheard. Additional hearing dates were set throughout 2021, with testimony from the Minister’s expert in June 2021 and from the Applicant and his expert witness in July and September 2021. Final written submissions were completed by January 10, 2022.
[14] On March 2, 2023, the newly assigned decision-maker granted the motion to exclude the CPSB evidence, ruling that it was likely obtained through torture and was therefore inadmissible. This decision, which excluded a significant portion of the Minister’s documentary evidence, also dovetailed with the Applicant’s broader motion of abuse of process.
[15] Alongside the torture-based evidence exclusion motion, the Applicant filed a motion seeking a stay of proceedings because of abuse of process. The Applicant raised five main grounds in support: (1) undue delay by immigration authorities, with the investigation spanning from 2014 to 2016 and adjudication from 2016 to 2019; (2) the subsection 44(2) referral and ongoing admissibility assessment being effectively a disguised extradition; (3) interference by the Chinese government aimed at influencing the investigative and adjudicative processes in Canada; (4) reliance on torture-derived evidence; and (5) failure to investigate allegations of torture. The Applicant argues that any one or a combination of these factors renders the entire process an abuse of the ID’s proceedings.
[16] After the ID granted the separate torture-exclusion application in March 2023, the Applicant continued to pursue the abuse of process motion. During October 2023, the ID scheduled additional hearing days for oral evidence, during which the Applicant and expert witnesses in human rights and mental health testified. Their testimony addressed allegations of foreign interference, the possibility that the deportation process functioned as a disguised extradition, and the harm the alleged abuses of process had caused the Applicant.
[17] At that stage, the ID had not yet issued a final ruling on whether the proceedings would be stayed. However, it had made interlocutory decisions while addressing the abuse of process claims. The decision under judicial review is one such interlocutory ruling.
[18] The interlocutory decision under review concerns the Applicant’s disclosure request in the context of his ongoing abuse of process motion. The ID addressed four main issues: (1) the relationship between the Applicant’s parallel Access to Information and Privacy [ATIP] request and the ID’s own disclosure mandate; (2) whether the ID has jurisdiction to entertain an abuse of process argument based on alleged disguised extradition and to order production of relevant evidence; (3) whether the ID may consider foreign interference as part of its abuse of process assessment and order production of relevant evidence; and (4) whether, and to what extent, certain documents referenced in the Minister’s Forensic Accounting Report should be disclosed to the Applicant.
[19] On the first issue, the ID determined that the existence of a pending ATIP request does not preclude an applicant from seeking disclosure directly from the ID. It emphasized that ATIP legislation serves a distinct purpose from disclosure obligations in immigration proceedings. The ID found that procedural fairness requires parties to be able to request relevant documents, regardless of any parallel ATIP request.
[20] On the issue of disguised extradition, the ID reviewed jurisprudence from this Court, and concluded that disguised extradition claims amount to a collateral challenge to the Minister’s motives in issuing or referring a section 44(1) report. The ID determined that it lacks jurisdiction to assess whether the referral was orchestrated to circumvent extradition procedures. Accordingly, it declined to order disclosure of communications between Canadian and Chinese officials that the Applicant sought solely to prove disguised extradition. The ID stated that caselaw supports its position that it must confine its inquiry to admissibility matters “within its own processes”
rather than examining the motives behind a referral.
[21] Concerning foreign interference, the ID accepted that it could consider abuse of process when such interference directly impacts the fairness of its proceedings. It recognized that intimidation by foreign state actors could compromise a claimant’s ability to present or defend their case. However, the ID was not persuaded that additional communications between the Minister and Chinese authorities would be probative of the foreign interference claim. It reasoned that the Applicant’s disclosure request of such communications was primarily aimed at proving disguised extradition, which was not demonstrably relevant to whether foreign officials coerced or intimidated the Applicant or his family. As a result, the ID denied most of the Applicant’s disclosure request on this ground.
[22] The ID mainly granted disclosure on the final issue concerning documents in the Forensic Accounting Report. It found that materials within the Report were relevant to admissibility determinations and were not outweighed by any privilege or statutory constraints. Accordingly, the ID ordered the Minister to identify and disclose those documents.
[23] In summary, the ID rejected the Applicant’s request for intergovernmental communications intended to support a disguised extradition claim, confirmed that it lacks jurisdiction over that alleged abuse, and denied further production related to foreign-interference concerns. However, it allowed the Applicant to receive financial forensic-related documents. Lastly, it also directed the parties to finalize the next steps for submissions on the broader abuse of process motion.
[24] Two questions arise in this judicial review.
[25] First, whether this application is premature, given that the decision under review is an interlocutory ruling on a motion that is itself a part of an ongoing broader abuse of process motion. Sub-issues include whether an adequate remedy exists at the conclusion of the inadmissibility hearing considering the cumulative nature of the alleged harm, and the weight to be given to delay and procedural fragmentation.
[26] Second, whether the ID erred in its interpretation of the Act in finding that it lacked jurisdiction to assess the motives behind the issuance and referral of the section 44 reports, order disclosure of relevant evidence, and ultimately grant a stay of proceedings on that basis. Sub-issues include whether more recent caselaw has broadened the ID’s jurisdiction, and whether its reliance on precedent to determine its lack of jurisdiction is reasonable.
[27] The issue of prematurity does not engage any standard of review: Willms v Canada (Attorney General), 2022 FC 543 at para 13; Ching v Canada (Immigration, Refugees and Citizenship), 2018 FC 839 [Ching] at para 12.
[28] For substantive review of the ID’s interlocutory decision, the parties submit, and I concur, that it is reviewable on the standard of reasonableness, as articulated by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov].
[29] Canadian administrative law generally disfavours judicial review of interlocutory administrative decisions, as parties are expected to exhaust all available remedies within the administrative process before seeking judicial intervention. As set out by the Federal Court of Appeal in paragraphs 30 to 33 of Canada (Border Services Agency) v C.B. Powell Limited, 2010 FCA 61 [C.B. Powell], judicial intervention mid-administrative proceeding is considered premature unless the applicant can demonstrate truly exceptional circumstances. This requirement “applies to all matters that arise during the administrative process”
: Herbert v Canada (Attorney General), 2022 FCA 11 at para 8.
[30] Recent cases from the Federal Court of Appeal have consistently affirmed this principle. In paragraph 6 of Lin v. Canada (Public Safety and Emergency Preparedness), 2021 FCA 81 [Lin], the Court of Appeal reiterated that this standard is “as close to absolute as possible,”
with exceptions arising only in “very rare”
situations where no effective recourse exists at the conclusion of the administrative process. Similarly, the Court of Appeal explained in paragraph 35 of Dugré v Canada (Attorney General), 2021 FCA 8, that midstream judicial review is generally unwarranted unless the consequences of deferral are so “immediate and radical”
that they would threaten the rule of law. Most notably, the Court of Appeal clarified in paragraph 11 of Çolakoğlu Metalurji A.S. v Altasteel Inc., 2025 FCA 29, that the rationale behind this near-absolute rule against judicial review of interlocutory or interim administrative decisions is that judicial review is reserved for situations with an “immediate, certain and final impact on legal rights, legal obligations or practical prejudice.”
Since interlocutory or interim steps rarely meet this threshold, granting such reviews requires “specific and cogent evidence”
demonstrating a clear justification.
[31] When deciding whether exceptional circumstances exist in a particular case, this Court applies the six-factor approach outlined in Air Canada v Lorenz (T.D.), [2000] 1 FC 494 [Lorenz]: (i) hardship to the applicant, (ii) waste, (iii) delay, (iv) fragmentation, (v) the strength of the applicant’s case, and (vi) the statutory context. Courts weigh these factors to assess whether, on balance, early judicial intervention is warranted or if it would unduly disrupt the administrative process. A party alleging, for instance, that it will suffer serious prejudice from continuing before the tribunal may still be required to show that the hardship is of a kind that no eventual remedy could address, or that not intervening now would cause duplicative effort or hamper the statutory framework’s objectives.
[32] Even in cases where abuse of process is alleged, the threshold for judicial intervention at an interlocutory stage remains high. Cases such as Shen v Canada, 2016 FC 70 [Shen], Ching and Rodas Tejeda v Canada (Citizenship and Immigration), 2025 FC 215, demonstrate that courts may sometimes intervene earlier if the alleged error or misconduct is so severe that continuing through the administrative process would irreparably compromise fairness, bring the administration of justice into disrepute, or deprive applicants of an adequate remedy. However, these determinations are case-specific and fact-driven, requiring more than ordinary claims of unfairness. Mere allegations of abuse of process do not automatically justify an exception to the general prohibition against early judicial intervention. Thus, while courts recognize a narrow scope for mid-process review under exceptional circumstances, the guiding principle remains the well-established default against interlocutory judicial intervention.
[33] The foundation of the ID’s jurisdiction comes from the Act, which provides the framework with which the ID determines the inadmissibility of permanent residents and foreign nationals in Canada. Under section 44 of the Act, officers may prepare reports on inadmissibility and, where appropriate, refer these reports to the ID for an admissibility hearing pursuant to subsection 44(2). Once a case is referred, the ID’s decision-making authority is defined in section 45, which mandates that the ID “shall make one of the following decisions”
:
1)Recognize the right to enter Canada of specified categories of persons, including Canadian citizens or registered Indians;
2)Grant permanent or temporary resident status to a foreign national who meets the Act’s requirements;
3)Authorize entry for further examination of a permanent resident or foreign national; or
4)Make a removal order against a foreign national or permanent resident found inadmissible.
Since the ID’s statutory mandate is expressly limited to these four outcomes, it does not have the authority to initiate additional procedures or grant additional remedies unless “necessary to provide a full and proper hearing”
pursuant to section 165 of the Act.
[34] Part 5 of the Act further confines the ID’s role to issues directly related to the admissibility hearing. The ID has some flexibility under section 173 to conduct admissibility hearings, and section 162(1) grants it “sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction”
for its own proceedings. However, this authority remains strictly limited by this statutory language in section 162(1): “in respect of proceedings brought before it.”
Accordingly, the ID’s jurisdiction is limited to consider all relevant legal and factual issues, but only insofar as they arise directly within the scope of the admissibility hearing and lead to one of the four prescribed decisions under section 45 of the Act, except for exceptional circumstances, including those relating to the fairness of its own proceedings.
[35] Caselaw further clarifies the limited jurisdictional carve-outs that allow the ID to address abuse of process in the interest of fairness. The most direct ruling from this Court for the specific situation of “disguised extradition”
is Bruzzese v Canada (Public Safety), 2016 FC 1119 [Bruzzese], where the applicant claimed the Minister convened an admissibility hearing to circumvent extradition procedures. The ID refused to entertain that claim, stating that scrutinizing the Minister’s motive in referring a case under section 44 lay beyond its competence. The Court at paragraphs 39 to 40 has endorsed the ID’s analysis in that case, which reads:
“… This Tribunal rules that it does not have the authority to consider the abuse of process through disguised extradition… [that] would be tantamount to questioning the validity or legality of the inadmissibility report and the related referral… [T]he Immigration Division does not have the authority to do so.”
Bruzzese thus stands for the principle that disguised extradition challenges require the ID to “look behind”
the referral, effectively contesting the decision to refer rather than the grounds of admissibility, which the ID cannot do. Since section 45 of the Act strictly enumerates the ID’s power at the end of an admissibility assessment, the Court accepted that the ID has no jurisdiction to assess whether the Minister’s referral was prompted by extraneous goals.
[36] Subsequent jurisprudence has addressed the ID’s power to grant a stay for different alleged abuses, chiefly in situations of inordinate delay or disclosure failures. In Torre v Canada (Citizenship and Immigration), 2015 FC 591, aff’d 2016 FCA 48 [Torre], this Court rejected a permanent stay application brought to recognize that the ID had jurisdiction to hear a motion on a stay of proceedings given a 17-year delay between the applicant’s criminal conviction and the eventual referral for an admissibility hearing. The Court reasoned that the ID’s role under section 45 was still confined to determining inadmissibility and issuing a removal order if warranted: Torre at para 22. Multiple cases up to 2017 also confirm that the ID’s ability to grant a stay for delay was “very limited”
in light of the Act’s framework: Sharma v Canada (Public Safety and Emergency Preparedness), 2016 FCA 319 at para 24; Ismaili v Canada (Public Safety), 2017 FC 427 at paras 12-15; Kazzi v Canada (Citizenship and Immigration), 2017 FC 153 at para 53.
[37] Canada (Public Safety and Emergency Preparedness) v Najafi, 2019 FC 594 [Najafi], however, involved a decades-long delay so prejudicial that the ID did consider an alleged abuse of process and grant a permanent stay. Justice Gagné upheld that outcome, emphasizing that the ID, with its sole and exclusive jurisdiction provided by subsections 162(1) and (2) of the Act, retains some power to protect the fairness of its proceedings: Najafi at para 15. Similarly, in Oberlander v Canada (Public Safety and Emergency Preparedness), 2021 FC 294 [Oberlander], the Court found that the ID could, in limited circumstances, consider a permanent stay if there was a serious procedural shortcoming—there, an alleged failure of disclosure—though it noted that the jurisprudence provides no categorical carve outs and thus the question of whether the ID hold jurisdiction to entertain abuse of process stay of proceedings must be approached on a case-by-case basis: Oberlander at paras 71–77.
[38] While more recent authorities acknowledge a narrow discretion for the ID to grant a stay of proceedings in exceptional cases where fairness concerns arise within its own admissibility determination process, such as undue delay or missing evidence, they have not revisited this Court’s holding in Bruzzese. Bruzzese therefore remains the binding case for disguised extradition, holding that any abuse of process claim based on questioning ministerial motives for the section 44 referral lies beyond the ID’s statutory function. The later cases deal with abuses that arise within the ID’s own hearing process, rather than with the impetus or purpose behind the Minister’s decision to initiate the proceeding. In short, where an abuse of process claim alleges that the Minister orchestrated a disguised extradition, the law remains clear that the ID lacks jurisdiction to review or grant a stay on that basis. However, if the alleged abuse relates to issues compromising the fairness of the ID’s own hearing or procedural issues, such as excessive delay or improprieties in evidence disclosure, cases such as Najafi and Oberlander confirm that the ID may, in these recognized circumstances, review the alleged abuse and potentially issue a stay.
[39] The decision under review is an interlocutory ruling on the Applicant’s disclosure request and was rendered mid-process of a broader abuse of process motion, which is itself part of an ongoing admissibility hearing before the ID. The Applicant must overcome the presumption against judicial intervention at this stage by demonstrating exceptional circumstances, which are narrowly and strictly construed per C.B. Powell and Lin.
[40] The Applicant argues that the gravity of his disguised extradition allegations warrants more immediate judicial intervention. He contends that this serious abuse of process permeates the entire ID proceeding and justifies early review. According to him, allowing the current proceeding to continue without judicial review of the ID’s interlocutory decision on disguised extradition would undermine the integrity of the process, as recognized in Ching and Shen. He asserts that by refusing to consider his disguised extradition claim alongside other abuse of process grounds, the ID has effectively bifurcated his broader abuse motion, causing substantial prejudice. This, he submits, is particularly egregious given the exceptional circumstances of his case, which includes over nine years of delay and significant personal hardship. On this basis, he seeks to overcome the general rule against premature review and gain access to review by this Court.
[41] During the hearing, the Applicant’s counsel specifically emphasized the cumulative harm that may arise if this Court declines to intervene until the ID has concluded its hearing on this matter. Counsel argued that the Applicant’s disguised-extradition claim is deeply connected to his broader abuse of process allegations, which, in turn, has significant implications for the exclusion of evidence and, ultimately, the outcome of the case. As a result, these issues must be assessed collectively rather than in a piecemeal manner. Delaying judicial review, counsel warned, could ultimately require the ID to reopen or rehear its entire abuse of process analysis to properly consider the disguised-extradition element. Given that the abuse of process analysis is a holistic and discretionary exercise, counsel contended that revisiting just one aspect in isolation would be nearly impossible, and thus not dealing with the issue at the current instance would only prolong the proceedings and exacerbate the existing prejudice against the Applicant.
[42] I find these concerns, taken together, overcome the very high threshold for judicial intervention. The Applicant here raises strong case-specific reasons of why waiting until after the ID finishes its entire multi-pronged abuse of process inquiry might produce a fragmented or incomplete remedy. I therefore decline to dismiss the application on grounds of prematurity. Evaluating the Applicant’s situation with the Lorenz framework supports this conclusion.
[43] First, in terms of hardship, the Applicant insists that the ID’s refusal to address disguised extradition at this stage, combined with the prolonged nine-years of proceedings, has caused him irreparable personal harm. He cites psychological trauma documented in a psychological report to support his claim. However, the record does not provide sufficient evidence for me to conclude that allowing the ID to continue addressing the remaining abuse of process claims will somehow unduly prolong the proceedings, further exacerbate his mental condition, or deprive him of meaningful recourse at the conclusion of the proceedings. The ID’s disclosure ruling has not terminated his admissibility hearing. It has merely set a narrower scope of disclosure than he had sought. The Applicant remains free to raise his disguised extradition arguments and seek further disclosure in a full judicial review after the ID renders its final decision, a course of action he has already indicated he intends to pursue. While I do not doubt that he has experienced psychological distress, the evidence before me does not establish the irreparability of that harm such that prejudice against him is “immediate, certain and final.”
This factor does not weigh in favour of judicial intervention at this stage.
[44] Second, far from creating waste, judicial involvement at this stage could avert the need to reopen the ID’s final decision. If this Court were to defer review until after the ID renders its findings, only for the Applicant to succeed on judicial review and have the disguised-extradition portion remitted for fresh adjudication, that scenario might require the ID, likely also with a new decision-maker, to revisit the entire abuse of process analysis. If that reassessment leads to substantive changes in evidence disclosure, later stages of the inadmissibility hearing may also need to be repeated, resulting in significant waste of judicial resources. The Respondent’s submission that one comprehensive review at the end would be simpler is persuasive under normal circumstances, but less so here, given that disguised extradition is inextricably linked to other alleged abuses and requires examining the entire inadmissibility process. The Applicant rightly points out that if disguised extradition is found, in law, to be within the ID’s jurisdiction, the ID would highly likely be forced to re-evaluate all aspects of abuse of process anew, specifically because an abuse of process analysis typically weighs or considers multiple alleged abuses in combination. Intervening now to clarify the scope of the ID’s mandate will likely save considerable judicial resources. This factor thus weighs in favour of immediate judicial intervention.
[45] Third, the factor of delay similarly weighs in favour of judicial involvement. The Applicant raises a strong argument that continuing the hearing without immediate clarity on disguised extradition will only prolong the final resolution if the Federal Court ultimately decides the ID must hear that claim. The Applicant also rightly highlights that the ongoing negative psychological impact is directly tied to the indefinite status of the disguised-extradition allegation. The combined effect of disguised extradition, foreign interference, and the Minister’s alleged reliance on torture-based evidence further complicates resolution of the process if partial re-litigation becomes necessary. While I accept the Respondent’s submission that this case is complex and that the COVID-19 pandemic contributed significantly to prior delays, I find that postponing the jurisdictional determination could lead to further unnecessary and excessive delays. If judicial review after the inadmissibility process finds the ID’s conclusion on jurisdiction unreasonable, the ID may have to revisit significant portions of both the abuse of process and inadmissibility assessments. By addressing this jurisdictional question now, this Court can help prevent an even longer extension of an already protracted process. This factor thus raises a serious concern that warrants judicial examination.
[46] Fourth, in terms of fragmentation, I am persuaded by the Applicant’s argument that excluding disguised extradition from the ID’s current abuse of process assessment effectively forces him to litigate in multiple phases. Courts are generally hesitant to grant interlocutory judicial review for fear that doing so might produce more litigation, as the judicial review result can then be subject to appeal. However, in this specific instance, fragmentation would very likely be heightened by withholding an immediate ruling on disguised extradition. If the ID’s final decision relies on its current analysis of disguised extradition, and the Applicant then successfully challenges the analysis, the ID may need to undertake a second, separate abuse of process review. This duplication is precisely what the general rule against fragmentation seeks to avoid. This factor therefore supports proceeding with this judicial review.
[47] Fifth, while the Applicant has not demonstrated a jurisprudential shift so clear that Bruzzese can be considered effectively overturned without further analysis, I am of the view that the evolution in caselaw is nonetheless significant enough to raise a serious question about the extent of this shift. This issue merits the Court’s attention and judicial resources for substantive analysis. Additionally, the unique factual circumstances of this case—where strong evidence suggests foreign government interference in the administrative process, along with repeated threats to the Applicant and his family—warrant consideration of their potential impact on the development of the relevant jurisprudence. Considering these exceptional circumstances, an immediate judicial determination on whether the ID has jurisdiction to address disguised extradition as a ground for abuse of process is needed.
[48] Finally, the statutory context militates against early judicial intervention. Sections 44 and 45 of the Act establish a strict process in which the ID’s determination of inadmissibility must lead to a clearly defined set of four outcomes. Paragraph 72(2)(a) of the Act further sets up a presumption that recourse to the Federal Court occurs only after an admissibility decision, except in extraordinary circumstances where no effective remedy would otherwise be available. In this case, the ID has neither denied all relevant disclosure nor entirely foreclosed the Applicant’s abuse of process claim, meaning that the administrative process has not yet been exhausted.
[49] While some factors suggest that judicial review at this stage of the proceeding may be premature, I am satisfied that the Lorenz analysis overall supports the Applicant’s position that he has shown the type of “specific and cogent evidence”
needed to justify early judicial review. The risk of asking the ID to revisit the entire abuse of process question if disguised extradition must eventually be considered is real and significant. Nor is it clear that a final judicial review, after the ID excludes disguised extradition from its purview, would fully redress the Applicant’s concerns about cumulative prejudice underlying the current abuse of process litigation. The interplay between disguised extradition, foreign interference, and delay creates the kind of unique factual scenario that favours clarifying the ID’s jurisdiction now rather than later. Thus, in this extraordinary case, I conclude that granting interlocutory review of the ID’s refusal to entertain disguised extradition provides much-needed clarification on a significant legal issue, prevent unnecessary duplication, and ultimately conserve judicial resources.
[50] Having determined that this application is not premature, I must now address the Applicant’s substantive challenge to the ID’s refusal to consider disguised extradition. The Applicant contends that recent jurisprudence has broadened the ID’s ability to review and remedy abuse of process beyond the confines recognized by Bruzzese, such that disguised extradition should be treated no differently from other recognized abuses, such as inordinate delay or disclosure failures. However, I see no indication in the caselaw that Bruzzese has been overturned and find that the ID properly applied the existing statutory and jurisprudential frameworks in declining jurisdiction over disguised extradition.
[51] The Applicant relies mainly on Najafi and Oberlander, among others, to argue that the law has evolved, giving the ID broader powers to prevent abuses of process. While Najafi confirms the ID has some authority to grant a stay for extreme delays and Oberlander discusses the ID’s ability to address serious disclosure failures, neither decision deals with the ID scrutinizing a referral’s external motivation, such as the allegation here of achieving a “disguised extradition.”
Rather, both cases involve misconduct that directly impacts the fairness and integrity of the ID’s own process, such as protracted scheduling delays or unjustified withholding of evidence. By contrast, Bruzzese directly engages with disguised extradition and stipulates that challenges to the Minister’s section 44 referral motives lie outside the ID’s statutory mandate. Therefore, I cannot accept the Applicant’s argument that jurisprudence has evolved in the manner he suggests.
[52] A review of the statutory limits on the ID’s authority, as set out in the Act, should remove any remaining doubt about its ability to review abuses of process beyond its internal processes. Section 45 restricts the ID’s role to determining inadmissibility and issuing one of four prescribed outcomes. Expanding its jurisdiction beyond these statutory constraints, to allow it to assess factors external to its mandate, would undermine the legislative framework established by Parliament. As Vavilov instructs at paragraph 68, a tribunal’s enabling statute “will always operate as a constraint on administrative decision makers and as a limit on their authority.”
The ID’s mandate is confined to addressing procedural abuses that directly affect the integrity of its own hearings. Without clear evidence that the alleged disguised extradition has compromised the fairness of the ID’s internal process, expanding its jurisdiction to assess the substantive motives underlying section 44 referrals would, in my view, contradict the statutory scheme.
[53] With these jurisprudential and statutory frameworks in mind, the ID’s decision fits within the range of possible acceptable outcomes consistent with the Act when viewed through the lens of Vavilov. Unlike foreign interference or undue delay, each of which can directly breach the fairness of the ID’s own process, disguised extradition typically disputes why the Minister invoked the section 44 referral at all. This is an inquiry that squares more with external Ministerial motives than with the ID’s hearing processes. Here, the ID determined that disguised extradition constitutes a collateral attack on the referral and does not fall within the limited scope of ensuring the fairness of its own proceeding. That stance is entirely in line with Vavilov’s emphasis on that governing statute acting as a constraint on the tribunal’s authority and with the leading authority of Bruzzese.
[54] The Applicant asserts that ignoring disguised extradition leaves potential grave abuses unaddressed. Yet the ID remains able to assess foreign interference and other procedural misconduct that directly affects the fairness of the hearing, such as witness intimidation or improper influence on ID procedures. Indeed, the ID has already found that interference by the Chinese government to be a matter falling within its jurisdiction when assessing abuse of process. The ID’s decision not to accept jurisdiction over disguised extradition thus does not force the hearing to continue if fairness is genuinely compromised. Rather, it narrowly confines the ID’s Charter or common law powers to abuses of its own process, which is exactly what the jurisprudence has instructed. Moreover, if a disguised-extradition claim truly overlaps with misconducts internal to the ID’s process, it retains authority to address such misconducts. What it does not and cannot have, however, is the power to delve into the impetus driving the section 44 referral.
[55] The Applicant attempts to bypass the external-internal distinction by arguing that disguised extradition, due to its permeation throughout the proceedings, is a type of abuse of process that may formally appear as an external issue but in effect substantively impacts the ID’s internal functions. He contends this necessitates a holistic inquiry into the Minister’s motive. While this substance-over-form argument might have conceptual appeal, this Court cannot simply disregard a statutory design that circumscribes the ID’s functions. Although the doctrine of abuse of process is broad and flexible, it cannot be viewed as analogous to the humanitarian and compassionate considerations under section 25 of the Act, which allow for an assessment of factors beyond the immediate decision-making process to mitigate the substantive consequences stemming from rigid application of immigration laws. Abuse of process is strictly procedural, intended to prevent the misuse of a decision-maker’s own proceedings in a way that is manifestly unfair to a party or that would bring the administration of justice into disrepute: Saskatchewan (Environment) v Métis Nation – Saskatchewan, 2025 SCC 4 at para 33, citing Toronto (City) v C.U.P.E., Local 79, 2003 SCC 63 at para 37 and Law Society of Saskatchewan v Abrametz, 2022 SCC 29 at para 33.
[56] Given the foregoing analysis, the ID’s conclusion that it must decline to consider disguised extradition is reasonable because it appropriately applies Bruzzese, respects Vavilov’s principle of fidelity to the administrative decision-maker’s governing statute, and does not exceed the ID’s prescribed domain. The Applicant has not provided any basis, legal or factual, to distinguish Bruzzese in a manner that would justify applying the exception recognized in Hansard Spruce Mills Limited (Re), [1954] 4 DLR 590 (BC SC). Until a higher court explicitly overrules or modifies Bruzzese, it remains the controlling precedent. Accordingly, I see no reviewable error in the ID’s refusal of assuming jurisdiction to investigate allegations of disguised extradition.
[57] In sum, I find that the Applicant’s request for judicial intervention is not premature considering the specific concerns about cumulative harm, fragmentation, and delay arising from the unique facts of the case. However, the ID’s decision on disguised extradition is not unreasonable. The ID’s refusal to accept jurisdiction over that alleged abuse of process fits well within the controlling jurisprudence, most notably Bruzzese, and aligns with the statutory limitations set out in the Act. Although the Applicant contends that the law has evolved to permit the ID to address disguised extradition alongside other recognized grounds of abuses, my review of Najafi, Oberlander, and related authorities shows that none extend the ID’s mandate to scrutinizing the Minister’s motives for issuing or referring a section 44 report.
[58] Indeed, the ID’s approach remains consistent with Bruzzese, as it distinguishes between abuses that directly taint its own proceedings, such as inordinate delay, disclosure failures, or foreign interference, and those concerning external referral motives. The most recent cases have not overruled or extended this principle, and I do not consider the present case as one that warrants such a treatment. While the Applicant raises legitimate concerns about how disguised extradition might affect the fairness and outcome of his case, the applicable jurisprudence still places challenges to the section 44 referral outside the ID’s statutory domain. Nor does Vavilov permit the ID to expand its jurisdiction beyond the statutory boundaries set by the Parliament. In this regard, I find that the ID’s conclusion was both reasonable in outcome and justified in rationale.
[59] Both parties refused to propose a question for certification, and therefore none will be stated.
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