Date: 20260429

Docket: IMM-7442-24

Citation: 2026 FC 567

Ottawa, Ontario, April 29, 2026

PRESENT: The Honourable Mr. Justice Southcott

BETWEEN:

A.F.M.B. ET AL.

Applicant

and

MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

ORDER AND REASONS

I. Overview

[1] This Order and Reasons address a motion filed by the Respondent on March 27, 2026 [Motion], to be adjudicated in writing under Rule 369 of the Federal Courts Rules, SOR 98-106 [the Federal Courts Rules], requesting that the Court reconsider under Rule 397(1)(b), or vary under Rule 399(2)(a), its Judgment dated March 17, 2026 [the Judgment], in the within application for judicial review [the Application] and certify a question of general importance pursuant to paragraph 74(d) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the IRPA].

[2] As explained in detail below, this motion for reconsideration is dismissed, because neither Rule 397(1)(b) nor Rule 399(2)(a) affords the Court jurisdiction to grant the relief that the Respondent requests.

II. Background

[3] The Applicants are 76 Palestinian nationals from the Gaza Strip [Gaza] with relatives in Canada. The Application sought an order of mandamus, related to the alleged failure by Immigration, Refugees, and Citizenship Canada [IRCC] to process their web form submissions and issue to them unique reference codes [Codes] as a precondition to them submitting applications for temporary resident visas [TRVs], pursuant to the Temporary public policy to facilitate temporary resident visas for certain extended family affected by the crisis in Gaza [the Policy] established by the Minister of Citizenship and Immigration [the Minister] under section 25.2 of the IRPA.

[4] Section 25.2 of the IRPA provides the Minister authority to grant permanent resident status or an exemption to a foreign national who is inadmissible or does not meet the requirements of the IRPA, if the foreign national complies with any conditions imposed by the Minister and the Minister is of the opinion that it is justified by public policy considerations.

[5] Pursuant to that authority, on December 22, 2023, the Minister announced the Policy, which referenced the humanitarian crisis in Gaza and was described as intended to provide a humanitarian pathway to safety and recognize the importance of keeping families together. The Policy, which came into force on January 9, 2024, exempts foreign nationals applying for a TRV from certain listed provisions of the IRPA and its regulations (the requirement not to be financially inadmissible to Canada and the obligation to establish that they would leave Canada at the end of their authorized period of stay) provided they meet certain eligibility criteria and conditions.

[6] A.B. v Canada (Citizenship and Immigration), 2025 FC 1514 [A.B.] at paragraph 13, described as follows the stages of an application for a TRV pursuant to the Policy:

13. The Policy defines the application process in three distinct stages. First, the anchor relative completes a statutory declaration and confirms their eligibility and commitment to supporting the applicant. Second, the anchor relative submits a webform with the required documents. If the application meets the requirements and space is available, the IRCC issues a reference code. Third, the applicant submits their TRV application through the IRCC portal along with their reference code and other required documents.

[7] The Policy as initially announced included start and end dates. The start date was January 9, 2024, and, initially, Parts 1 and 2 (overseas visa facilitation) of the Policy expired once 1,000 TRV applications had been accepted into processing or one year after the Policy came into effect, whichever was first, such that no additional applications could be accepted into processing following expiration. On May 27, 2024, the Policy was updated to increase the cap on the number of TRV applications that could be accepted into processing to 5,000. The Policy also provided throughout that it could be revoked at any time.

[8] The Applicants are all described as parents, siblings, nieces or nephews of Canadian permanent residents or citizens. The Applicants all submitted web forms to IRCC within a month of the Policy opening in January 2024, but none of the Applicants received either Codes based on complete submissions or refusal letters explaining why their web form submissions were deemed incomplete. In an effort compel decisions on their web form submissions and the issuance of Codes, the Applicants commenced 16 applications seeking relief in the nature of mandamus against IRCC, all of which were consolidated into the Application by previous Orders of this Court.

[9] The Respondent opposed the Application on the basis that it was both moot and futile and on the basis that the Applicants did not meet the test for a writ of mandamus.

[10] In relation to the principles of both mootness and futility, the Respondent argued that granting mandamus to compel IRCC to provide the Applicants with Codes would serve no useful purpose, as the sole purpose of the Codes was to allow an applicant to complete an application for a TRV pursuant to the Policy. As the Policy cap of 5,000 applications had been reached and the Policy had accordingly expired, the Respondent argued that no further TRV applications could be accepted under the Policy.

[11] In response to this position, the Applicants argued that there were effective remedies at the Court’s disposal. The Applicants relied heavily on A.B.C.D. v Canada (Citizenship and Immigration), 2025 FC 1296 [A.B.C.D.], in which Justice Gascon addressed an application for mandamus in what the Applicants argued were circumstances similar to the matter at hand, albeit in connection with a different temporary policy applicable to applicants from Afghanistan [the Afghan Policy]. In response to the applicant’s application for mandamus in A.B.C.D, the respondent had argued that such relief would have no practical effect, because an 18,000-person cap applicable to the program has been met and the Afghan Policy had expired.

[12] Justice Gascon rejected this position, concluding that the applicant should not be unfairly prejudiced by the passage of time between the government’s negligence in processing his application and the date on which the cap of accepted applicants under the Afghan Policy was reached. The Court was therefore prepared to direct consideration of the applicant’s application under the initial version of the Afghan Policy, as it existed when the applicant submitted his application (at para 6).

[13] In my Reasons in support of the Judgment [the Reasons], after considering the parties’ respective arguments related to A.B.C.D. and numerous other authorities, I found (at para 46) that the reasoning in A.B.C.D. applied and defeated the Respondent’s mootness and futility arguments. After considering the parties’ respective arguments related to the mandamus test, I also found (at para 83) that the Applicants had met the test. The Judgment therefore allowed the Application and ordered relief similar, but not identical, to that requested by the Applicants.

[14] Neither party proposed a question for certification for appeal, as required by the Court’s Consolidated Practice Guidelines for Citizenship, Immigration, and Refugee Protection Proceedings, December 31, 2025 [the Guidelines], either in written submissions filed in advance of the hearing of the Application or at the hearing itself and, as also required by the Guidelines, neither party indicated that it had given notice to the other party in advance of the hearing of an intention to propose a certified question,. As such, the Reasons noted that neither party had proposed a question for certification for appeal (at para 90) and the Judgment stated that no question was certified (at para 5).

[15] On March 27, 2026, the Respondent file this Motion, requesting that the Court reconsider its Judgment under Rule 397(1)(b) of the Federal Courts Rules, or in the alternative vary it under Rule 399(2)(a), so as to certify a question of general importance pursuant to paragraph 74(d) of the IRPA. The Respondent seeks certification of the following question [the Proposed Question]:

If the executive establishes a public policy under s. 25.2 of the Immigration and Refugee Protection Act, SC 2001, c 27, that expires by a specific date or when the applications cap is reached, does the Federal Court have the jurisdiction to order mandamus such that additional applications must be considered under the public policy even once it has already expired?

[16] In support of its principal position, that a matter that should have been dealt with has been overlooked or accidentally omitted, as is required to invoke the jurisdiction under Rule 397(1)(b), the Respondent notes that, at the hearing of the Application, the Court did not ask the Respondent whether it wished to propose any question for certification. The Respondent submits that this is an omission of the sort contemplated by Rule 397(1)(b), because it represents a failure to comply with Rule 18(1) of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22 [the Immigration Rules]. The complete Rule 18 reads as follows:

[17] In the alternative, the Motion argues that Rule 399(2)(a) of the Federal Courts Rules, which allows the Court to vary an order by reason of a matter that arose or was discovered subsequent to the making of the order, could allow the Court to vary the Judgment and certify a question.

[18] The Applicants oppose the Motion, taking the position that it is improper or procedurally unfair, and unsupported by the scope of the Court’s jurisdiction under Rule 397(1)(b) or Rule 399(2)(a), for the Respondent to seek certification of a question for appeal at this stage of this proceeding. The Applicants also take the position that the Proposed Question does not meet the test for certification.

III. Issues

[19] The issues to be adjudicated by the Court in this Motion are as follows:

• A.Does the Court have jurisdiction under Rule 397(1)(b) or Rule 399(2)(a) to reconsider or vary the Judgment on the basis raised by the Respondent in the Motion?

• B.If the Court has such jurisdiction, does the Proposed Question meet the test for certification pursuant to subsection 74(2) of the IRPA?

IV. Analysis

A. Does the Court have jurisdiction under Rule 397(1)(b) or Rule 399(2)(a) to reconsider or vary the Judgment on the basis raised by the Respondent in the Motion?

[20] The Respondent brings this Motion principally under Rule 397(1)(b). The full text of Rule 397(1) provides as follows:

[21] Alternatively, the Respondent seeks to invoke Rule 399(2)(a), which states:

[22] The legal architecture surrounding certified questions in immigration matters begins with subsection 74(d) of the IRPA which states:

[23] As noted above, the Respondent’s effort to invoke Rule 397 or 399 of the Federal Courts Rules is based on Rule 18(1) of the Immigration Rules, the text of which is set out above. The other provision relevant to certified questions and referenced in both parties’ submissions is section 39 of the Guidelines, which provides as follows:

[24] The facts underlying the parties’ arguments do not appear to be in dispute. The Respondent did not give notice to the Applicants of a proposed certified question in advance of the hearing of the Application as required by section 39 of the Guidelines. Nor did the Respondent comply with the Guidelines by proposing a certified question either through written submissions filed in advance of the hearing or at the hearing itself. The Court did not ask the Respondent at the hearing whether it wished to propose any question for certification.

[25] However, the parties disagree on the interpretation of Rule 18(1) of the Immigration Rules. The Respondent takes the position that the parties were not given the opportunity to request a certified question required by Rule 18(1), because the Court did not ask the parties at the hearing whether they sought certification of a question. The Applicants argue that the Respondent had every opportunity to propose a certified question, in its memoranda of fact and law or at the hearing of the Application, but failed to do so, and submit that the Court cannot be faulted for not considering a certified question that was never raised. The Applicants rely significantly on the Guidelines’ provisions surrounding proposed certified questions, with which the Respondent did not comply.

[26] In relation to Rule 397(1)(b), the Respondent is not asserting that the Court overlooked, or omitted consideration of, a certified question that the Respondent proposed. Rather, the Respondent argues that the Court overlooked Rule 18(1) of the Immigration Rules which, in the Respondent’s submission, required the Court to perform what the Respondent’s reply submissions describe as the Court’s usual practice of asking the parties at the hearing whether they seek certification of a question.

[27] I accept that such a practice exists, although I do not understand the Respondent to be asserting that it is universal, as the Respondent refers in reply to the Court overlooking the Rule (i.e. not asking the parties about certification at the hearing) and submits that sometimes that happens.

[28] The practice to which the Respondent refers also predates the relevant provision of the Guidelines, the Preamble to the current version of which indicates that they replaced the Practice Guidelines for Citizenship, Immigration, and Refugee Law Proceedings, dating to November 5, 2018 (see also Zeng v Canada (Citizenship and Immigration), 2019 FC 1586 at para 58). It is arguable that, if Rule 18(1) of the Immigration Rules were to be interpreted (as the Respondent suggests) as requiring the Court to proactively inform parties of the opportunity to propose a certified question, section 39 of the Guidelines fulfils that function.

[29] I note the Respondent’s submission that Rule 18(1) of the Immigration Rules take precedence over the Guidelines. As the Respondent observes, section 75(1) of the IRPA provides that rules made to govern the practice and procedure in relation to applications for leave to commence an application for judicial review, for judicial review, and for appeals are binding despite any rule or practice that would otherwise apply.

[30] I agree with the Respondent’s position on the precedence between the Immigration Rules and the Guidelines. Rule 18(1) entitles the parties to an opportunity to request certification of a question for appeal. As such, it could be problematic if the Court, without further analysis, were to automatically refuse to entertain submissions on a proposed certified question because the party proposing the question had not complied with the Guidelines. While the Guidelines note that, where a party fails to comply with the Guidelines, the Court may refuse to consider the merits of a proposed certified question (citing Medina Rodriguez v Canada (Citizenship and Immigration), 2024 FC 401 [Medina]; and Matharu v Canada (Public Safety and Emergency Preparedness), 2024 FC 902 [Matharu]), those authorities demonstrate the Court giving consideration to whether to assess a proposed question for certification, notwithstanding that the Guidelines have not been respected (Medina at paras 44-45; Matharu at paras 29-31).

[31] However, as the Applicants submit, the jurisprudence emphasizes that the late submission of proposed certified questions in contravention of the Guidelines is a practice that the Court strongly discourages (Medina at para 44; Kalonji v Canada (Citizenship and Immigration), 2024 FC 897 at para 50). While it remains available to a party to attempt to convince the Court to consider a proposed certified question that is raised for the first time at the hearing, I have difficulty concluding that Rule 18(1) should be interpreted as invariably mandating the Court to ask the parties if they wish to engage in a practice that the jurisprudence indicates is strongly discouraged.

[32] Moreover, the Respondent has adduced no evidence and advanced no argument to the effect that the absence of an inquiry by the Court at the hearing, as to whether it wished to propose a question for certification, in any way detracted from it having an opportunity to do so. There could be circumstances, for instance where issues or arguments at the hearing of an application (including issues raised by the Court) vary from those contemplated in the parties’ memoranda of fact and law, in which there would be no incongruity between a party’s failure to comply with the Guidelines and an expectation that the Court would nevertheless inquire as to questions for certification at the hearing. In contrast to such a situation, in the case at hand the issue which is the subject of the Proposed Question was one of the principal issues raised and argued in the parties’ memoranda.

[33] I emphasize that the above analysis is not intended to discourage the practice of asking the parties at the hearing whether they seek certification of a question. It is intended only to be responsive to the Respondent’s argument that such practice is invariably mandatory. Moreover, it is not necessary for me to arrive at a definitive conclusion on that point, related to the interpretation of Rule 18(1) of the Immigration Rules on which the parties diverge, because even if the Respondent’s interpretation were to be accepted, I agree (as explained below) with the Applicants’ position that the Respondent has not identified a matter that should have been dealt with by the Court, but was overlooked or accidentally omitted, within the meaning of Rule 397(1)(b) of the Federal Courts Rules.

[34] Rule 397, which affords the Court power to reconsider orders and judgments in order to deal with mistakes, omissions, or matters overlooked, has been described in the jurisprudence as much narrower than it sounds (Canada v McDonald, 2021 FCA 6 at para 17). In Yeager v Day, 2013 FCA 258, the Federal Court of Appeal described Rule 397(1)(b) as being available to correct the failure of the Court to deal with something that was put to it (at para 9). Certainly, if a party proposed certification of a question in an immigration judicial review and the Court’s judgment failed to consider whether certification was appropriate, I would think that a motion for reconsideration would be available. However, there is no suggestion in the matter at hand that the Court overlooked a proposed question.

[35] The Respondent refers the Court to Alohan v Canada (Citizenship and Immigration), 2024 FC 1122 (at paras 26-28), relying on Naboulsi v Canada (Citizenship and Immigration), 2020 FC 357 [Naboulsi] (at para 13), as recognizing that there is an ability, although limited, to certify a question on a motion for reconsideration. I accept that such a possibility exists, for instance where the determination of an issue that properly represents an oversight or omission within the scope of Rule 397(1)(b) gives rise to a question that meets the test for certification.

[36] However, Naboulsi emphasizes the limited the scope of Rule 397(1)(b). A “matter”, as referenced in Rule 397(1)(b), is to be understood as related to the remedies sought by the moving party (at para 9). As previously noted, I would accept that a request for certification could be characterized as a remedy that, if overlooked, could invoke the Court’s jurisdiction under Rule 397(1)(b). However, no such remedy was sought by the Respondent in the matter at hand.

[37] Finally, I note that the Respondent’s submissions on the application of Rule 399(2)(a) are limited to relying on Murati v Canada (Citizenship and Immigration) (26 August 2025), Toronto IMM-15135-23 (FC) [Murati] in support of its position that that Rule could also allow the Court to vary an order so as to certify a question. While Murati does not expressly reference the Rule under which the motion addressed therein was brought, the relevant Notice of Motion in that Court file confirms the Respondent’s submission that it was a motion under Rule 399, seeking to vary a Judgment and Reasons issued by Justice Grant (that had allowed the relevant application for judicial review) by certifying a question for appeal.

[38] However, as the Respondent recognizes, while Justice Grant did not take issue with the motion having been brought under Rule 399, he dismissed the motion on its merits, finding at paragraph 11 that it would not be appropriate to certify a question of general importance. Murati contains no analysis of the application of Rule 399. Rule 399(2)(a), which the Respondent seeks to invoke in the case at hand, allows the Court to vary an order by reason of a matter that arose or was discovered subsequent to the making of the order. The Notice of Motion in Murati demonstrates that the respondent sought to invoke Rule 399 in that case on the basis that, as the determinative issue in the application had not been raised by the parties or put to the parties by the Court, the respondent could not have known that it would be the determinative issue and therefore have had the foresight to propose a question for certification.

[39] In contrast, as previously noted, in the case at hand the issue which is the subject of the Proposed Question was one of the principal issues raised and argued in the parties’ memoranda. As the Applicants submit, the Respondent has not identified any matter that arose or was discovered only after the Court issued the Judgment.

[40] In conclusion on this issue, I find that the Court does not have jurisdiction under Rule 397(1)(b) or 399(2)(a) to reconsider or vary the Judgment in the manner and on the basis that the Respondent seeks.

B. If the Court has such jurisdiction, does the Proposed Question meet the test for certification pursuant to subsection 74(2) of the IRPA?

[41] Given the Court’s conclusion on the preceding issue, no reconsideration of the Judgment will be conducted, and it is not necessary for the Court to consider whether the Proposed Question meets the test for certification.

ORDER IN IMM-7442-24

THIS COURT orders that the Respondent’s motion for reconsideration of the Judgment is dismissed.

"Richard F. Southcott"

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	IMM-7442-24
STYLE OF CAUSE:	A.F.M.B. ET AL. v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
MOTION adjudicated in writing under Rule 369 of the Federal Courts Rules, SOR 98-106
Order AND REASONS:	SOUTHCOTT J.
DATED:	april 29, 2026

WRITTEN SUBMISSIONS BY:

Hana Marku Damey Lee Debbie Rachlis	For The ApplicantS
Gregory George Teresa Ramnarine	For The Respondent

SOLICITORS OF RECORD:

Marku & Lee Immigration and Refugee Lawyers	For The ApplicantS
Attorney General of Canada Toronto, Ontario	For The Respondent