Federal Court Rejects Complicity Certification in Immigration Case

OUTCOME: Dismissed

Date: 20260617 Docket: IMM-5330-18 Citation: 2026 FC 817 Ottawa, Ontario, June 17, 2026 PRESENT: Mr. Justice Norris BETWEEN: [APPELLANT] Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent

REASONS AND

ORDER [ 1 ] In [APPELLANT] v Canada (Citizenship and Immigration) , 2026 FC 719, the Court allowed an application for judicial review of the decision of a delegate of the Minister of Citizenship and Immigration determining under paragraph 115(2)(b) of the Immigration and Refugee Protection Act , SC 2001, c 27 ( IRPA ) that the applicant should not be allowed to remain in Canada on the basis of the nature and severity of acts committed. At the hearing of the application, the parties had suggested, and I agreed, that it would be of assistance if they could read the Court’s decision before taking a final position on whether the case gave rise to any questions warranting certification under paragraph 74(d) of the IRPA.

Accordingly, whether any questions would be certified remained on reserve with the Court. [ 2 ] After now having had the opportunity to review the Court’s decision, the respondent has proposed the following question: In an assessment under paragraph 115(2)(b) of the IRPA of the nature and severity of the acts committed by a protected person who has been found inadmissible to Canada on security grounds under s. 34(1) of the IRPA , is the Minister’s Delegate required to consider the concept of complicity in order to attribute to the person specific acts of concern in terms of nature and severity? Or is it sufficient for the Minister’s Delegate to determine whether the gravity of the person’s acts meet the nature and severity test? [ 3 ] The applicant submits that this question does not meet the test for certification and he does not propose any questions. [ 4 ] As I will explain, I agree with the applicant that the respondent’s proposed question does not meet the test for certification. [ 5 ] The test for certification under paragraph 74(d) of the IRPA is well established. A question can be certified only if it is serious, it transcends the interests of the parties, and it would be dispositive of the appeal. As well, the question must have been raised and dealt with in the decision with respect to which the appeal would be taken. Furthermore, the question must arise from the case itself rather than from the judge’s reasons. Finally, the question cannot be a matter of settled law. See, among other cases, Canada (Public Safety and Emergency Preparedness) v [NAME] , 2022 FCA 113 at para 7, and [NAME] v Canada (Public Safety and Emergency Preparedness) , 2023 FCA 151 at para 28. [ 6 ] Importantly, if a question was not raised and dealt with in the decision from which the appeal would be taken, it cannot be dispositive of the appeal ( Canada (Minister of Citizenship and Immigration) v [NAME] , 2004 FCA 89 at para 12). As [NAME] held: “If a question arises on the facts of a case before an applications judge, it is the judge’s duty to deal with it. If it does not arise, or if the judge decides that it need not be dealt with, it is not an appropriate question for certification” ( ibid .). In other words, a certified question “does not arise in a vacuum” ( [NAME] v Canada (Citizenship and Immigration) , 2016 FCA 159 at para 12). A properly certified question “is based upon the facts in evidence and the points in issue before the Federal Court” ( ibid. ). [ 7 ] In my view, the respondent’s proposed question cannot be certified because, to the extent that it raises issues that are not a matter of settled law, these issues were not raised in the application for judicial review or dealt with in the decision allowing the application. Consequently, they would not be dispositive of the appeal. [ 8 ] It is settled law that the “acts committed” that are relevant under paragraph 115(2)(b) of the IRPA are those committed personally by the person in respect of whom the Minister’s opinion has been sought: see [NAME] v Canada (Minister of Citizenship and Immigration) , 2008 FCA 153 at para 51. It is also settled law that, in the context of inadmissibility on the basis of organized criminality, the requirement that the acts committed be those of the person in question “does not negate the possibility of relying on the acts committed by the criminal organization as a whole, so long as it is established that [the person in question] was complicit in those acts” ( ibid. ). [ 9 ] The jurisprudence has not squarely addressed whether, in a determination under paragraph 115(2)(b) of the IRPA , the concept of complicity also applies when the inadmissibility finding is on security grounds. Thus, I agree with the respondent that the role of the concept of complicity in this context remains an open question, at least in theory. [ 10 ] In the present case, however, all the parties to the determination under paragraph 115(2)(b) accepted that the concept of complicity was applicable. They all approached the matter on the basis that, applying the reasoning in [NAME] , the requirement that the acts committed be those of the applicant himself did not preclude the possibility of relying on acts committed by the terrorist organization of which he had been found to be a member, as long as it was established that he was complicit in those acts. [ 11 ] First, in seeking the Minister’s opinion, the Canada Border Services Agency ([NAME]) submitted that the nature and severity of acts committed by the applicant “reach a serious level of gravity.” The [NAME] assessment for decision explained that, in taking this position, it had considered not only acts committed personally by the applicant but also “those committed by the organization in which he was a member, if he was complicit in the commission of their crimes.” The [NAME]’s assessment of the applicant’s role supporting the activities of a terrorist organization, the [NAME], was central to the analysis in the assessment for decision. [ 12 ] Second, in response to the assessment for decision, the applicant agreed that the concept of complicity could be applied but maintained that the test for complicity in this context is the one established in [NAME] v Canada (Citizenship and Immigration) , 2013 SCC 40, which the assessment for decision had not addressed. The applicant submitted that, under this test, he could not reasonably be found to be complicit in the commission of crimes committed by the [NAME], the terrorist organization of which he had been found to be a member. [ 13 ] Third, in the decision under review, the Minister’s delegate also accepted that, in determining whether the applicant should not be permitted to remain in Canada on the basis of the nature and severity of acts committed, she could consider whether he was complicit in crimes committed by the [NAME]. [ 14 ] Given that there was never any suggestion that the applicant himself had engaged in acts of violence, all the parties to the determination under paragraph 115(2)(b) of the IRPA focused on the question of the applicant’s complicity in crimes or acts of violence committed by others. No one disputed that a finding of complicity had to be grounded in the applicant’s own acts. In the decision under review, however, the delegate never assessed whether the applicant’s own acts considered in isolation – in other words, the applicant’s own acts considered separate and apart from any complicity in the crimes of other members of the [NAME] such as [NAME] or [NAME] [NAME] – warranted denying him the protection of the principle of non-refoulement . Instead, the delegate focuses on crimes in which the applicant could be found to have been complicit and whether those crimes were of sufficient gravity to warrant concluding that the applicant’s removal from Canada should be considered. The delegate’s central finding was that the applicant, by virtue of his work running a guest house in Peshawar for [NAME], “is complicit in the crimes committed by [NAME] and his co-commander in Chechnya, [APPELLANT] [NAME].” It was because of the applicant’s complicity in those crimes that the delegate concluded that his acts met the nature and severity test under paragraph 115(2)(b), not because of anything the applicant himself had done considered in isolation from those crimes. Even if, as a matter of law, it may have been open to the delegate to find against the applicant on a narrower basis than this, she did not do so. [ 15 ] On judicial review, no one suggested that the delegate erred in considering whether the applicant was complicit in crimes committed by other members of the [NAME]. Moreover, no one suggested that it was unreasonable for the delegate to determine complicity on the basis of whether the applicant had made a voluntary, knowing and significant contribution to the crimes or criminal purpose of that terrorist organization. The sole point in dispute in this regard – and the determinative issue for the Court – was whether the delegate’s finding of complicity in the crimes of members of the [NAME] – in particular, the crimes of Chechen extremists – was based on an internally coherent and rational chain of analysis that was justified in relation to the facts and law that constrained the decision maker ( Canada (Citizenship and Immigration) v [RESPONDENT] , 2019 SCC 65 at para 85). Contrary to the respondent’s submissions in support of the proposed question being certified, the Court did not hold – or even imply – that complicity must always be considered, or that the [NAME] test is the only reasonable test for complicity in the context of inadmissibility on security grounds. These questions were not before the Court. [ 16 ] Given the foregoing, the issues now raised by the respondent – whether the decision maker is required to consider the concept of complicity or whether, instead, it is sufficient for the decision maker to determine whether the person’s own acts satisfy the nature and severity test – simply do not arise. They did not arise in the decision under review. And they were not dealt with in the decision allowing the application for judicial review. [ 17 ] In short, the question proposed by the respondent raises issues that no one has raised until now. As a result, the question would not be dispositive of the appeal. I must, therefore, decline to certify the proposed question.

ORDER IN IMM-5330-18 THIS COURT ORDERS that There is no question for certification under paragraph 74(d) of the Immigration and Refugee Protection Act . “John Norris” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5330-18 STYLE OF CAUSE: [APPELLANT] v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: December 3, 2024

REASONS AND

ORDER: NORRIS J. DATED: June 17, 2026 APPEARANCES : [APPELLANT] [NAME] [NAME] [COUNSEL] [NAME] [COUNSEL] [NAME] COUNSEL [COUNSEL] For The Respondent SOLICITORS OF RECORD : [NAME], [NAME] [APPELLANT] [COMPANY], [NAME] [APPELLANT], [NAME]/[NAME] COUNSEL [NAME] [NAME] of Canada Toronto, Ontario For The Respondent