In IRPA Record Disclosure, the Federal Court held that the Minister cannot withdraw information from a certified tribunal record after the Court has ordered it disclosed under section 87 of the Immigration and Refugee Protection Act in a certiorari application. Justice Turley directed the Minister to file an amended redacted record within 30 days so the underlying judicial review can proceed on its merits.
Decision and immigration context
In Zaitsev v. Canada (Citizenship and Immigration), 2026 FC 1182, released September 22, 2026, the Federal Court considered a procedural issue arising in a judicial review of refused permanent residence applications on humanitarian and compassionate grounds. The decision was issued by the Honourable Madam Justice Turley.
The applicants, citizens of Ukraine, had applied for permanent residence in October 2020. A senior immigration officer refused the applications on April 10, 2024, finding reasonable grounds to believe that the principal applicant was inadmissible on security grounds because of his employment with the Security Service of Ukraine between 2003 and 2013. The family members were found inadmissible as a result.
The applicants sought judicial review of that refusal. This Federal Court decision did not determine the merits of the underlying judicial review or the reasonableness of the inadmissibility finding.
How the disclosure dispute arose
The Minister brought a section 87 motion seeking non-disclosure of information in the Canada Border Services Agency’s Inadmissibility Assessment, which formed part of the certified tribunal record. The Minister argued that disclosure would be injurious to national security or would endanger the safety of a person.
Following an in camera, ex parte hearing, the Court allowed the non-disclosure motion in part. In an October 10, 2025 order, it protected most of the information but ordered some redactions lifted because the evidentiary record did not establish the required injury from disclosure.
The Minister did not appeal the disclosure order under section 87.01 of the IRPA. Instead, counsel advised the Court that the Minister had decided to withdraw the information that had been ordered released. The applicants disputed that the Minister had authority to alter the certified tribunal record in this way.
Court finds no withdrawal power in certiorari review
The central legal issue was whether paragraphs 83(1)(f) and 83(1)(j) of the IRPA permit the Minister to withdraw information from a certified tribunal record after a disclosure order in a certiorari application. Applying the modern approach to statutory interpretation, the Court considered the text, context and purpose of the provisions.
Justice Turley found that the provisions do not expressly grant the Minister power to withdraw information. Rather, they set out what the judge must do if information is withdrawn, including ensuring its confidentiality and not basing a decision on it.
The Court distinguished a certiorari application from proceedings in which the record may evolve, including security certificate reviews and proceedings under the Secure Air Travel Act and the Prevention of Terrorist Travel Act. In a certiorari application, judicial review depends on the complete record that was before the original decision-maker.
Permitting the Minister to unilaterally remove information from that fixed record would undermine the reviewing Court’s ability to assess the legality of the underlying decision, the Court held. The Court also noted that where Parliament intended to give a Crown minister exceptional authority to prevent disclosure despite a court order, it used express language in the Canada Evidence Act that does not appear in the relevant IRPA provisions.
Order and practical significance
The Court ruled that the Minister cannot withdraw the information ordered disclosed from the certified tribunal record in this judicial review. The Minister was ordered to serve and file an amended redacted certified tribunal record within 30 days of the order.
Justice Turley stated that the decision did not leave the Minister without recourse in future cases. The Minister may appeal a disclosure order under section 87.01 of the IRPA, which suspends execution of the order until the appeal is finally determined. The Minister may also consent to judicial review and agree to a redetermination without the decision-maker relying on the information at issue.
For immigration practice, the decision addresses the specific treatment of information in a certified tribunal record in a certiorari application under section 87. It does not decide the applicants’ underlying challenge to the permanent residence refusal.
Source: Federal Court Decisions