Zaghbib v. Canada (Minister of Citizenship and Immigration), (2016) 484 N.R. 191 (FCA)

• Judge: Pelletier, Near and Boivin, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: June 15, 2016
• Jurisdiction: Canada (Federal)
• Citations: (2016), 484 N.R. 191 (FCA);2016 FCA 182

Zaghbib v. Can. (M.C.I.) (2016), 484 N.R. 191 (FCA)

MLB headnote and full text

Temp. Cite: [2016] N.R. TBEd. JN.018

Tarek Zaghbib (appellant) v. The Minister of Public Safety and Emergency Preparedness (respondent)

(A-54-15; 2016 FCA 182)

Indexed As: Zaghbib v. Canada (Minister of Citizenship and Immigration)

Federal Court of Appeal

Pelletier, Near and Boivin, JJ.A.

June 15, 2016.

Summary:

Zaghbib, a citizen of Canada, alleged that his estranged wife, a citizen of Morocco, fraudulently entered into a marriage with him for immigration purposes. He applied for mandamus directing the Canada Border Services Agency or the Minister of Public Safety and Emergency Preparedness to commence an investigation into the wife's admissibility.

The Federal Court, in a decision reported 474 F.T.R. 25, dismissed the application and certified the following question: "Can a writ of mandamus be issued to compel the Minister of Public Safety and Emergency Preparedness or the Canada Border Services Agency to investigate a complaint of marriage fraud made by a private citizen?". Zaghbib pursued an appeal.

The Federal Court of Appeal dismissed the appeal. The court lacked jurisdiction to hear the appeal because the certified question before the court was not a legitimate one (i.e., one that was dealt with in the Federal Court's reasons and was dispositive of the appeal). In any event, the court opined that on the merits the Federal Court came to the right conclusion, but for the wrong reasons. The Appeal Court opined that while Zaghbib's application for mandamus was justiciable, the application was moot as the Acting Supervisor of Inland Enforcement had actually made a decision relating to the request for an investigation.

Administrative Law - Topic 3203

Judicial review - General - Matters not subject to review - [See Aliens - Topic 4066 ].

Administrative Law - Topic 3503

Judicial review - Mandamus - General - When available - [See Aliens - Topic 4066 ].

Aliens - Topic 4066

Practice - Judicial review and appeals - When available - Zaghbib, a citizen of Canada, alleged that his estranged wife, a citizen of Morocco, fraudulently entered into a marriage with him for immigration purposes - He applied for mandamus requiring the Canada Border Services Agency or the Minister of Public Safety and Emergency Preparedness to commence an investigation into the wife's admissibility under the Immigration and Refugee Protection Act (IRPA) - The Federal Court dismissed the application, holding that the matter was not a justiciable matter because the question of whether and how to investigate his complaint was not a determination order, measure or question arising from the IRPA and as a result, there was no basis for an application for judicial review pursuant to s. 72(1) of the IRPA - The plaintiff appealed - The Federal Court of Appeal disagreed on the justiciability issue - The Appeal Court opined that the question of whether the authorities had an obligation to investigate the complaint was a matter arising under the IRPA and was, therefore, amenable to judicial review - However, the court opined that it was unable to provide relief for Zaghbib as it was not possible to convert the mandamus application to a judicial review application - See paragraphs 26 to 54.

Aliens - Topic 4066.1

Practice - Judicial review and appeals - Bars - [See Aliens - Topic 4066 and Aliens - Topic 4069 ].

Aliens - Topic 4069

Practice - Judicial review and appeals - Certification of question of general importance by Federal Court - Zaghbib, a citizen of Canada, alleged that his estranged wife, a citizen of Morocco, fraudulently entered into a marriage with him for immigration purposes - He applied for mandamus requiring the Canada Border Services Agency or the Minister of Public Safety and Emergency Preparedness to commence an investigation into the wife's admissibility under the Immigration and Refugee Protection Act - The Federal Court dismissed the application - The following question was certified for appellate consideration: "Can a writ of mandamus be issued to compel the Minister of Public Safety and Emergency Preparedness or the Canada Border Services Agency to investigate a complaint of marriage fraud made by a private citizen?" - The Federal Court of Appeal dismissed the appeal for want of jurisdiction, because the certified question before the court was not a legitimate one (i.e., one that was dealt with in the Federal Court's reasons and was dispositive of the appeal) - As a courtesy to the litigants, the court explained why the appeal would have failed in any event - See paragraphs 55 to 59.

Courts - Topic 4044

Federal Court of Canada - Jurisdiction - Federal Court - Immigration and citizenship - [See Aliens - Topic 4066 ].

Courts - Topic 4082

Federal Court of Canada - Jurisdiction - Federal Court of Appeal - Appeals from judgments of Federal Court - [See Aliens - Topic 4069 ].

Counsel:

Raj Sharma and Ram Sankaran, for the appellant;

Maia McEachern and Shawn Melen, for the respondent.

Solicitors of Record:

Stewart Sharma Harsanyi, Calgary, Alberta, for the appellant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard in Calgary, Alberta, on May 24, 2016, before Pelletier, Near and Boivin, JJ.A., of the Federal Court of Appeal. The following decision was delivered by Pelletier, J.A., for the court, on June 15, 2016, in Ottawa, Ontario.