Jaballah v. Canada (Citizenship and Immigration) (2011 FCA 175)

In Jaballah v. Canada (Citizenship and Immigration), the Federal Court of Appeal: (1) interpreted s. 82.1(2) of the Immigration and Refugee Protection Act (“IRPA”) as it relates to waiting periods between subsequent security certificate conditions variations appeals; and, (2) interpreted s. 82.1(1) of the IRPA and the test for whether to grant a security certificate variation order. Noel J.A. held that the six-month waiting period under s. 82.1(2) begins at the more recent of either the most recent review or the most recent variation order, and that other circumstances cannot be considered under s. 82.1(1) without first addressing the risk attached to the requested variation.

Jaballah was subject to a security certificate the conditions of which he applied to have varied. IRPA s. 82(4) allows a person to apply to have their security certificate conditions varied if six months have elapsed since the conclusion of the preceding review (this is not the same remedy as a variation order). IRPA s. 82.1(2) deems that the conclusion of the preceding review takes place on the day that a variation order is made. It had been six months since the last variation order for Jaballah’s security certificate, but less than six months since the last review. Jaballah argued that the deeming provision meant that he was outside of the waiting period, since it had been more than six months since the last variation order. Noël J.A. disagreed, holding s. 82.1(2) to read harmoniously with the scheme of the Act, and concluded that absurd results would emerge if Jaballah’s narrow interpretation was accepted.

IRPA s. 82.1(1) permits a judge to vary conditions that were ordered attached to a security certificate if “the judge is satisfied that the variation is desirable because of a material change in the circumstances that led to the order”. The Federal Court judge restricted her analysis to the threat or risk that Jaballah posed to national security. Jaballah argued that the judge should have considered other circumstances, specifically his difficulties in finding a supervisor during specified activities. Noël J.A. agreed with the lower court, finding that Jaballah could not ask for a variation without first addressing his security risk.

May 24, 2011
Link to Decision

Steve Holinski & Ryan MacIsaac
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