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How the Federal Court will review visa refusals going forward

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How the Federal Court will review visa refusals going forward

Significance of the recent decision that a person born in Canada to undercover Russian spies is a Canadian citizen

On December 19, 2019, the Supreme Court of Canada in the case of Minister of Citizenship and Immigration v. Alexander Vavilov created a revised framework for the standard of review in judicial review applications. This case has significant implications for how Canada’s Federal Court will review the decisions of immigration officials.

Understanding the concept of standard of review

I published an article about this case in the December 2018 issue of Canadian Immigrant dealing with the concept of the standard of review and how it pertains to courts reviewing administrative tribunal decisions. In the immigration context, administrative tribunals include visa officers, border officials and Immigration and Refugee Board of Canada members.

The Federal Court has the jurisdiction to review all decisions of these tribunals, including visa refusals stays of removal and deportation orders. The concept of the standard of review is perhaps best illustrated by using the analogy of a parent asking her child to pick the clothes that she will wear to school that day. A parent who is showing her child a lot of deference will let her child wear whatever she wants to wear to school, as long as what the child picks is reasonable. If the child tries to wear pants over her head, for example, the parent would say that the child’s choice is unreasonable and prohibit the outfit. A parent showing deference will not interfere, however, simply because the clothes do not match or look bad. Such an approach is known as the reasonableness standard. In contrast, a parent not showing a lot of deference would stop her child from wearing clothes that don’t match or look bad. The parent would only let the child wear outfits that the parent would wear. This approach is known as the correctness standard.

What the Supreme Court of Canada had to say

In Vavilov the Supreme Court affirmed that in most cases the reasonableness standard, rather than the correctness standard, will apply to the judicial review of the decisions of immigration officials. The Supreme Court further stated that going forward, the reasonableness standard review would be more robust. Judicial review will not be a “rubberstamping” process or a means of “sheltering administrative decision makers from accountability.” Judges are required to ensure that decisions are “transparent, intelligible and justified.”

Vavilov articulates several further principles that will be of interest to people considering challenging a decision. First, the Supreme Court affirmed that the reasonableness analysis focuses on the reasons, not outcomes. Prior to the decision some had argued that even if a visa officer’s rationale in refusing an application made no sense, a judge should uphold the decision if the judge might also have refused the application. The Supreme Court disagreed and reiterated that an officer’s reasons must make sense.

Second, the Court stated that a refusal will also be unreasonable if it is not possible to understand the officer’s reasoning on a critical point. Reasons that contain circular reasoning, false dilemmas, unfounded generalizations or absurd premises will also be unreasonable.

Third, the court ruled that where there is existing Federal Court of Canada jurisprudence on how to interpret Canadian immigration legislation, “it would be unreasonable for a decision maker to interpret or apply the provision without regard to that precedent.”

Fourth, the Supreme Court affirmed that while visa officers do not have to address every piece of evidence, the failure of an officer to meaningfully grapple with key issues or central arguments raised by an applicant may render the decision unreasonable.

Fifth, the Supreme Court stressed that it is important for consistency in administrative determinations. In other words, whether someone gets a visa should not depend on whether the officer handling their case is ‘nice’ or ‘strict’.

Of particular note is that previously some Federal Court judges had stated that immigration officials could not follow what is written on the Immigration, Refugees and Citizenship Canada website. The Supreme Court appears to have cautioned against this, noting that summaries of past reasons, standards, and policy directives should guide the work of frontline decision makers.

Going forward

Vavilov is a new decision, and in 2020 the biggest story in Canadian immigration law will be how the Federal Court applies it. A more robust reasonableness standard is welcome, especially one which appears to say that immigration officials need to follow their department’s guidelines and the website. A lack of consistency is one of the biggest complaints about Canada’s immigration system, and hopefully a more pronounced emphasis on transparency and intelligibility will result in a fairer and rational process.

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