Understanding Judicial Review

Where a visa application has been refused and an applicant is convinced that the decision is unreasonable then it may be advisable to file an Application for Leave to Commence Judicial Review with the Federal Court of Canada (the “Federal Court” or the “Court”).

 

The Federal Court has the jurisdiction to review the decisions of visa officers. The Court will determine whether an immigration officer committed any reviewable errors that should result in the decision being set aside.  Reviewable errors include errors of fact, law, or breaches of procedural fairness.  If an applicant succeeds in Federal Court, then the Court will order that the immigration officer’s decision be set aside, and typically that the application be reconsidered by a different officer.

Usually, a successful judicial review will ultimately result in a positive decision from the second visa officer.  However, this is not always the case. Furthermore, as the Federal Court of Appeal determined in Lee v. Canada (Minister of Citizenship and Immigration), there is no obligation on the second immigration to specifically refer to the order of the Court and provide reasons as to how and why the second decision differs from the first.

In deciding whether to submit a judicial review application it is important to note that the Federal Court will not review or accept new evidence, but, rather, determine if an officer made an error based on the information that was before them.


Judicial Reviews of BC PNP Decisions

As of writing, there have now been two published judicial reviews of British Columbia Provincial Nomination Program (“BC PNP“) refusals.  In each case the judicial review was dismissed.

While both cases were very fact specific, some of the key passages were as follows.

Chaudan v. British Columbia (Ministry of Jobs, Tourism and Skills Training), 2016 BCSC 2142

 

This case essentially stands for the proposition that officers can look beyond an offer of employment to determine whether a proposed job offer meets BC PNP program requirements. Justice Bowden wrote:

In determining whether an applicant met the criterion of PNP, if a decision maker relied only upon a future offer of employment, that might well be unreasonable. Not only would that ignore the factor of past employment over a nine month period but also an offer of employment in the future is not an assurance that the criterion will be met.

Raturi v. British Columbia, 2017 BCSC 9

 

In this case Madam Justice E.A. Arnold-Bailey provided a useful summary of existing jurisprudence on provincial nomination judicial reviews. She wrote:

Moving from more general statements of principle to specific cases more closely aligned to the present case, I note that among the cases referred to by the Respondent are Jiang and Baba. Both these cases deal with provincial nominee programs in other provinces, Manitoba and New Brunswick respectively. In neither case was the denied applicant successful.

Jiang was an appeal from an order of the application judge refusing to quash a decision of the Manitoba Provincial Nominee Program for Business (the “Program”). The appellant, who applied under the economic class pursuant to the business stream, argued that the application judge erred in her analysis of the requirements of procedural fairness and in her conclusion that the Program’s decision was reasonable.

The appellant raised three issues respecting procedural fairness: i) the reconsideration process should have followed the same steps as required for the application process, ii) the lack of appeal in the application process, and iii) the reasons for refusal were inadequate. With respect to the first ground, the Court of Appeal found that there was no provision in the Program for the specific request of reconsideration but rather only a process for re-applying and this did not raise a legitimate expectation that the reconsideration process would be the same as the initial application process. While a decision-maker who affords an exceptional procedural step must still act fairly in regard to that step, the reconsideration process here did not require the very same process as the initial application. By providing the appellant an opportunity to submit additional documentation and for a second interview, the Program conducted the reconsideration in a manner that was fair.

On the second ground, the Court of Appeal found that the Program did not breach the requirements of procedural fairness because it does not provide for an appeal. The Program has the discretion to determine its own procedures, and the fact that the similar skilled workers’ stream provided for an appeal did not mean that the business stream had breached procedural fairness.

Finally, the Court of Appeal found that the reasons were adequate in the circumstances. The initial reasons set out concerns relating to credibility as well as retention (whether the appellant would remain in Manitoba); and while some of these were addressed by the new information provided by the appellant, not all of them were. The reasons for the second decision provided an adequate basis for the application judge to engage in a meaningful judicial review.

The appellant also argued it was unreasonable to refuse the application on reconsideration, and that the application judge did not correctly determine that the Program’s decision was reasonable. While the appellant may have addressed the identified concerns upon reconsideration, the application judge found that this did not automatically entitle her to nomination. The fact that the Program was not satisfied that the appellant was likely to continue to reside in Manitoba was one of the possible, reasonable outcomes in the case. The Court of Appeal found that given the inconsistency in her application and retention concerns, the decision made under the Program to deny her application was within the ambit of possible reasonable outcomes. Consequently, the Court of Appeal found that the application judge was correct in her decision in finding the decision was reasonable.

In Baba, the applicant sought judicial review of a decision of the respondent, asking the Court to quash the decision refusing his application for a provincial nominee certificate as a business applicant under the New Brunswick Provincial Nominee Program.

The applicant argued that the respondent failed in its duty of fairness by relying on the applicant’s source of funds as a criterion for assessing his application. The chambers judge also undertook a review of the duty to give reasons and the reasonableness of the respondent’s decision.

The judge found that while the decision was important to the applicant in pursuing residency, even if the applicant satisfied all the criteria there was no guarantee that he would be issued a nominee certificate. The decision-making process was governed by a clear set of criteria and procedure, including a form stating an applicant’s source of funds was a relevant consideration, which was communicated to the applicant. The judge found that despite being given several opportunities to provide required documentation the applicant failed to do so. The judge rejected the applicant’s argument that the respondent acted unfairly by relying on the applicant’s failure to identify his source of funds as a reason for rejecting his application.

With respect to the duty to give reasons, the judge found the applicant was well aware of the criteria and the process and the deficiency in his supporting documentation. While the notification letter merely stated that the applicant did not meet the eligibility criteria, in the totality of the circumstances, the judge found that the applicant understood the reason for refusal of his application.

The judge also found that the respondent’s discretionary decision to deny the nomination was within the realm of reasonable, possible outcomes. As the core of the Program was the verification of the applicant’s ability to contribute to the economic development of the province, it was reasonable for the respondent to probe and verify the applicant’s financial integrity. Both the amount and source of the applicant’s funds were critical to the respondent’s decision-making process. The applicant failed to satisfy the respondent’s requests for further information, and as a result the respondent was not satisfied as to the applicant’s financial integrity.

In addition, there is now the BC decision of Chaudan from November 2016, which was a judicial review of a decision of a program advisor refusing the petitioner’s application for nomination under the BC PNP. The program advisor found the applicant’s income was below the threshold amount for a single person living in Metropolitan Vancouver. The petitioner requested reconsideration and the program manager upheld the program advisor’s reason for refusal. The petitioner applied to the Court for an order setting aside the program’s advisor decision. The petitioner argued that the program advisor’s decision was unreasonable because it treated the petitioner’s past wages as determinative. The respondent argued that past work experience falls within a range of reasonable and logical considerations in determining whether to grant a nomination. The judge found that while the ultimate criterion of the PNP is forward looking, the factors to be considered by the decision-makers include past and future employment and the program advisor considered both of those factors. The decision was found to be one that could reasonably have been made.

Madam Justice E.A. Arnold-Bailey in Raturi made several statements which will guide and impact future judicial reviews, including that:

  • A decision-maker is not obliged “to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion” as long as the reviewing court may understand from the reasons why the decision was made and the reasons permit the court to determine whether its conclusion is within the range of acceptable outcomes.
  • It is not for the courts to provide direction as to the extent of independent labour market research that the BC PNP ought to carry out in a particular case.
  • The BC PNP websites can trump policy manuals.

Complicity in Article 1FA Cases

In 2013, the Supreme Court of Canada in Ezokola v. Canada (Citizenship and Immigration) created a new test for determining Article 1F(a) exclusions.

Article 1F(a) of the 1951 Refugee Convention provides that:

The provisions of this Convention shall not apply to any person with respect to whom there  are serious reasons for considering that:

(a)  He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

The issue that Ezokola addressed is how broad Article 1F(a) is.  It if it interpreted too narrowly, then Canada risks creating safe havens for perpetrators of international crimes.  If it is read too broadly, then the humanitarian aims of the 1951 Refugee Convention would be imperilled.

Continue reading “Complicity in Article 1FA Cases”


Section 7 of the Charter and Deportation

Section 7 of the Canadian Charter of Rights and Freedoms (the “Charter“) provides that:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

There have been several Supreme Court of Canada (the “Supreme Court“) and Federal Court of Appeal decisions involving s. 7 of the Charter and deportation.

Continue reading “Section 7 of the Charter and Deportation”



Was not Continuously Engaged

The word “continuously” appears in several immigration requirements.  It is not often not defined, and its interpretation has largely been left to immigration officers and the courts.

 

Definitions

Black’s Law Dictionary defines the word “continuously” to mean:

Uninterruptedly; in unbroken sequence; without intermission or cessation; without intervening time; with continuity or continuation.”

The Oxford English Dictionary defines the word “continuously” as being:

“in a continuous manner; uninterruptedly, without a break”.

The Canadian Oxford Dictionary defines “continuous” as meaning “unbroken, uninterrupted.”

Webster’s Third New International Dictionary defines “continuously” as being “in a continuous manner” and “continuous” as “characterized by uninterrupted extension in time or sequence.”

 

Dependent Child Jurisprudence

Much of the jurisprudence on the matter involves the definition of “dependent child” before the Conservative Government of Canada changes in 2014.

Previously, a “dependent child” was defined as:

“dependent child”, in respect of a parent, means a child who

(a) has one of the following relationships with the parent, namely,

(i) is the biological child of the parent, if the child has not been adopted by a person other than the spouse or common-law partner of the parent, or

(ii) is the adopted child of the parent; and

(b) is in one of the following situations of dependency, namely,

(i) is less than 22 years of age and not a spouse or common-law partner,

(ii) has depended substantially on the financial support of the parent since before the age of 22 — or if the child became a spouse or common-law partner before the age of 22, since becoming a spouse or common-law partner — and, since before the age of 22 or since becoming a spouse or common-law partner, as the case may be, has been a student

(A) continuously enrolled in and attending a post-secondary institution that is accredited by the relevant government authority, and

(B) actively pursuing a course of academic, professional or vocational training on a full-time basis, or

(iii) is 22 years of age or older and has depended substantially on the financial support of the parent since before the age of 22 and is unable to be financially self-supporting due to a physical or mental condition.

How this section is interpreted is very fact specific.

In Singh Gill v. Canada (Citizenship and Immigration), 2008 FC 365, the Federal Court of Canada determined that an applicant’s two absences from school, one for four months to care for her ailing grandmother and another for ten days to attend and assist with her sister’s wedding, did not constitute a sufficient period of time to abandon her studies and not meet the definition of “dependent child.” The Federal Court determined that the individual was still continuously enrolled, because:

These leaves or absences from studies… did not, in and of themselves, constitute a sufficient period of time for her to abandon her studies. As [her] school transcripts and certificates attest, she continued with her studies, uninterrupted; neither of the educational institutions… considered that she had either withdrawn or abandoned her studies for any given year.

However, in Shomali v. Canada (Citizenship and Immigration), an applicant’s studies were interrupted during the period of a military service where the individual was afforded an educational leave of absence.  The Federal Court found that this did not meet the requirement of “continuous,” with the deciding factor seeming to be that in one case an individual simply did not attend class to attend an ailing grandmother, while in the other case the educational institution actually granted a leave of absence.

 


The Right to Counsel at the Port of Entry

Section 10(b) of the Canadian Charter of Rights and Freedoms provides that:

10. Everyone has the right on arrest or detention

(b) to retain and instruct counsel without delay and to be informed of that right; and

In the immigration context, the right to counsel does not arise at most secondary examinations, unless the person is actually arrested or retained.

As such, the Canada Border Services Agency’s (“CBSA“) general policy is not to permit counsel at examination if detention has not occurred. In practice, officers will often waive this policy if they are satisfied that legal representatives will not interfere with the examination process.

Continue reading “The Right to Counsel at the Port of Entry”


When Visa Officers Contradict the Immigration Website

Towards the end of 2016 the Canadian government made many changes to Canada’s immigration programs.  The parents and grandparents sponsorship program went from being first-come, first-serve to a lottery system, arranged employment through a Labour Market Impact Assessment went from guaranteeing someone an invitation to apply for Canadian permanent residency to only being a factor slightly more significant than the newly introduced factor of Canadian post-secondary education, and Canada lifted the visa requirement against Mexican nationals.

The rate of change will continue to be fast in 2017.  Already, the government has announced that it will lift the visa requirement against Brazil, Bulgaria, and Romania, that it would introduce a work permit program for highly skilled foreign workers, that having relatives in Canada will increase one’s chances of being issued an invitation to apply for permanent residency, and that Canada will ratify the Comprehensive Economic Trade Agreement between Canada and the European Union, which will make it easier for Europeans to work in Canada.

At the same time that the rate of the pace of changes is increasing, the Canadian government has also expanded the number of ways in which it publicizes these announcements.  Many have been introduced through legislative amendments.  Others are simply posted on the Immigration, Refugees and Citizenship Canada (“IRCC”) website, where changes and updates are frequently posted as Program Delivery Updates, Operational Bulletins, Notices, and the IRCC website’s ever growing Help Section.   Often times, there is no formal announcement of a change. Rather, a page on the IRCC website is simply updated.

Given the simultaneous increase in the number of changes and the increase in the ways in which these changes are disseminated to the public, it is perhaps not surprising that on occasion visa officers make decisions which contradict the IRCC website.

The Law Trumps the Website

Although one might think that one could always rely on the IRCC website when preparing visa applications, people submitting applications to IRCC need to understand two key aspects of Canadian immigration law prior to applying.

First, Canadian immigration legislation is not nearly as comprehensive as the IRCC website.  The IRCC website is massive, and it is growing.

Second, information which is found on the IRCC website that is not found in Canadian immigration legislation is considered under Canadian immigration law to be guidance which influences the decisions of visa officers. The IRCC website is not binding on decision makers.

The distinction between the IRCC website and immigration legislation can have significant consequences for applicants. For example, Canadian’s immigration regulations state that a person who is without status can apply to restore their temporary resident status if they met the initial requirements of their authorized stay in Canada.  It is silent on whether an individual whose post-graduate work permit application was refused can restore their status from student to foreign worker.  There is one webpage on the IRCC website which strongly suggests that this can be done.   However, on several occasions in 2016 visa officers determines that was not possible to do this. When their decisions were challenged, the Federal Court of Canada ruled that the visa officers had acted reasonably and upheld their decisions.  The Court explicitly noted that the website is not binding on officers.

In a recent episode of the Borderlines Podcast, which I co-host and can be found here, we interviewed Dani Willetz, a former Supervisor at Canada’s immigration department.  She confirmed that she always taught her visa officers to follow the law first and to only treat material that IRCC published on its website as guidance.

How to Prevent Decisions which Contradict the IRCC Website

Although the IRCC website is not binding on visa officers, I do not believe that most immigration officers would make a decision that contradicts the IRCC website if they were aware of the information on it.

This is not to suggest that Canadian visa officer’s do not know what the law is.  However, as noted earlier, the sheer volume of information on the IRCC website, and the decentralised manner in which this information is updated, makes it inevitable that there will wording on the IRCC website which an officer may not be aware of, especially if it was recently updated.

The way to avoid inconsistent decisions should thus be obvious.  At our office, we routinely link to and include copies of the IRCC website in our visa applications, especially when we are relying on something which seems like it may be obscure or unique.  It has been our experience that visa officers never make decisions which contradict the IRCC website when we do this.

In 2016 my hope was that more refused applicants would start applying for the internal reasons for refusal.  Based on the e-mails that I received from readers, my wish came true.  In 2017 my hope is that more individuals will start copying and pasting the webpages on the IRCC website that they are relying on in their visa applications, and that the number of refusals based on reasoning which is inconsistent with the IRCC website dramatically decreases.