SETTLEMENT I M M I G R AT I O N L AW
How the Federal Court will review visa refusals going forward
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Significance of the decision that a person born in Canada to undercover Russian spies is a Canadian citizen
n 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
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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
CANADIAN IMMIGRANT Volume 17 Issue 1 | 2020
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 that the reasonableness analysis Supreme Court appears to have focuses on the reasons, not cautioned against this, noting outcomes. Prior to the decision that summaries of past reasons, some had argued that even if a visa standards, and policy directives officer’s rationale in refusing an should guide the work of frontline application made no sense, a judge decision makers. should uphold the decision if the judge might also have refused the Going forward Vavilov is a new decision, and in application. The Supreme Court disagreed and reiterated that an 2020 the biggest story in Canadian immigration law will be how the officer’s reasons must make sense. Second, the Court stated that a Federal Court applies it. A more refusal will also be unreasonable robust reasonableness standard if it is not possible to understand is welcome, especially one which the officer’s reasoning on a critical appears to say that immigration point. Reasons that contain officials need to follow their circular reasoning, false dilemmas, department’s guidelines and the unfounded generalizations or absurd website. A lack of consistency is premises will also be unreasonable. one of the biggest complaints about Third, the court ruled that Canada’s immigration system, where there is existing Federal and hopefully a more pronounced Court of Canada jurisprudence emphasis on transparency and on how to interpret Canadian intelligibility will result in a fairer immigration legislation, “it would be and rational process. Steven Meurrens is an immigration lawyer with Larlee Rosenberg in Vancouver. Contact him at 604-681-9887, by email at steven.meurrens@larlee.com, or visit his blog at smeurrens.com.
