The Federal Court reviewed the refusal of a permanent
residence application after Nova Scotia withdrew the applicant’s provincial
nomination certificate.
The applicant argued that IRCC had communicated inaccurate
misrepresentation concerns to the Nova Scotia Office of Immigration and that
the resulting withdrawal of her nomination unfairly caused the refusal of her
permanent residence application.
The Court dismissed the application, finding that the
provincial nomination decision was separate from the federal permanent
residence decision and could not be reviewed by the Federal Court.
Key Principle
Where a Provincial Nominee Program certificate is issued or
withdrawn by a provincial immigration authority, judicial review of that
provincial decision generally belongs before the province’s superior court, not
the Federal Court.
A subsequent IRCC refusal based on the absence of a valid
nomination is a separate federal decision.
The fact that the provincial and federal decisions are
closely connected does not necessarily make them a single continuing course of
conduct for judicial review purposes.
Background
The applicant received a Nova Scotia provincial nomination
certificate in February 2018 and subsequently applied for permanent residence.
IRCC later raised concerns regarding her intention to reside
in Nova Scotia and separately communicated possible misrepresentation concerns
to the Nova Scotia Office of Immigration.
Those concerns included information that the applicant had
previously pursued the Federal Skilled Worker Program and that her daughter was
studying in Belleville, Ontario, information IRCC believed had not been
properly disclosed in the provincial application.
Nova Scotia ultimately withdrew the nomination certificate
for misrepresentation. Once the nomination was withdrawn, the applicant’s
Express Entry score fell below the threshold that had originally resulted in
her Invitation to Apply, and IRCC refused the permanent residence application.
Court Findings
The Court first held that it had no jurisdiction to
review Nova Scotia’s withdrawal of the nomination certificate.
The Nova Scotia Office of Immigration is a provincial body,
not a federal board, commission, or tribunal. Decisions concerning provincial
nomination certificates must therefore be challenged before the appropriate
provincial superior court.
The Court rejected the argument that the provincial and
federal decisions constituted a single continuing course of conduct. Although
they were related, they involved different decision-makers, different legal
authority, and different forms of relief.
The Court also found no procedural unfairness in IRCC
communicating its concerns to Nova Scotia without first giving the applicant an
opportunity to respond.
IRCC was not itself deciding the provincial
misrepresentation issue. It was providing information relevant to the
provincial nominee program to the provincial authority responsible for making
that determination within the formal federal-provincial framework.
Finally, the federal permanent residence refusal was
reasonable.
Once Nova Scotia withdrew the nomination, the applicant no
longer possessed a valid provincial nomination and no longer had the
corresponding points required to support her Invitation to Apply. IRCC was
therefore entitled to refuse the application because she no longer met the
requirements of the program.
Outcome
The Federal Court dismissed the application for judicial
review, holding that it lacked jurisdiction over the provincial nomination
withdrawal and that IRCC had acted fairly and reasonably in refusing permanent
residence once the nomination was no longer valid.
Case
Citation:
Potdar v. Canada (Citizenship and Immigration), 2019 FC 842 CanLII
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian
Immigration Case Law and Statistics Analyst
