In a recent Supreme Court of Canada decision – Pepa v. Canada (Citizenship and Immigration), 2025 SCC 21 – the Court heard an appeal by Ms. Pepa of a removal order. The Supreme Court of Canada held that even if a person’s permanent resident visa has expired at the time of the order, as long as the visa was valid upon entry to Canada, the person has the right to appeal the removal order.
Facts
Ms. Pepa was a 20-year-old holder of a valid permanent resident visa when she entered Canada. She accompanied her father as a “dependent”. Her father did not know that Ms. Pepa had gotten married just a few weeks before – a fact that she disclosed to an immigration officer upon arrival.
The officer concluded that Ms. Pepa’s failure to disclose her change in marital status amounted to a “misrepresentation or withholding of material facts”, which led to an admissibility hearing. The Minister relied on this argument, in the courts, in seeking to uphold the order removing Ms. Pepa, arguing that since Ms. Pepa’s visa was expired at the time of appeal, she had no right to appeal.
The immigration officer did not grant Ms. Pepa permanent resident status due to the change in marital status – she was no longer considered to be a “dependent”.
Following the Immigration and Refugee Board Immigration Division’s hearing, a removal order against Ms. Pepa was issued. At that time, Ms. Pepa’s visa had already expired. She attempted to appeal the removal order to the Immigration Appeal Division (the “IAD”), which was denied.
The IAD did not undertake an analysis of the provision governing the right of appeal: s. 63(2) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the “IRPA”). Both the IAD and the courts below held that there was no right of appeal in the circumstances, upholding the IAD’s reasoning that Ms. Pepa’s appeal failed on a threshold lack of jurisdiction [para. 168].
The IAD held that since Ms. Pepa was not “a foreign national who holds a permanent visa…”, she had no right to appeal under s. 63(2) of the IRPA. The Supreme Court of Canada set aside decisions of the IAD, Federal Court and Federal Court of Appeal.
The Supreme Court of Canada also held that it was an absurd consequence that a person could lose their right to appeal before any removal order is made.
Issue
Is it reasonable for the IAD to conclude that it does not have jurisdiction to hear a person’s appeal, if a permanent resident visa has expired at the time a removal order is issued?
To answer that question, the Court considered whether s. 63(2) of the IRPA granted a right of appeal to a person whose visa was valid on arrival to Canada. In Ms. Pepa’s case, her visa had expired about one month before the removal order was issued [para. 100].
Decision
The Court held:
1. The Supreme Court of Canada confirmed that the “reasonableness” standard remains the standard of review, with limited exceptions.
2. The IAD acted unreasonably by deciding that Ms. Pepa did not have a right to appeal because her visa had already expired when the IAD issued the exclusion (removal) order. The IAD failed to conduct a proper interpretation and analysis of s. 63(2).
“On a robust review, it was not reasonable to conclude, without clear wording or a compelling justification, that Parliament intended that a person could lose their right to appeal before any hearing on the merits took place and before any removal order was issued.” [Pepa at para. 102]
When an administrative decision maker, such as the IAD, is tasked to conduct a statutory interpretation analysis, a “modern approach” to interpretation applies. Such approach requires taking into account the text, context, and purpose of the legislation.
The Supreme Court of Canada conducted an interpretation analysis of s. 63(2), and particularly, the phrase “who holds a permanent resident visa”.
The Court held that the following is a reasonable interpretation of s. 63(2):
“the point in time at which a person must hold a visa in order to access the right of appeal against a removal order under s. 63(2) is the time of arrival in Canada.”
3. Further, and in keeping with its earlier decision in Vavilov, the Supreme Court of Canada held that the IAD failed to take into account the harsh consequences of its decision on Ms. Pepa.
“Individuals are entitled to greater procedural protection when the decision in question involves the potential for significant personal impact or harm”: Vavilov at para. 133.
The Court found that the impact on Ms. Pepa would be significant. The removal order would have separated her from her family and barred re-entry to Canada for five years.
4. Ms. Pepa has a right to appeal the removal order, as she was a holder of a valid permanent resident visa when she entered Canada. The matter is remitted to the IAD for determination.
In dissent, two judges held that the IAD decision was reasonable. They pointed out that non-citizens do not have an unqualified right to enter or remain in Canada [para. 154]. They agreed with the majority that the standard of review is “reasonableness”.
In terms of administrative law and judicial review, the Pepa case confirms that a tribunal’s reasons: (1) must have internal rationality; and (2) must be justified based on relevant precedents, principles of statutory interpretation and the impact of the decision on the applicant: citing Vavilov [Pepa at para. 8].
Link to decision: https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21114/index.do
