The Federal Court has certified what might be the most important (and least discussed) issue in Canadian immigration law. In Qin v. Canada, the Court asked:
What standard of review is applicable to a visa officer’s interpretation of the Immigration and Refugee Protection Regulations, SOR/2002-227 and to the officer’s assessment of an application under the Immigration and Refugee Protection Regulations, SOR/2002-227?
The answer to this question will have profound implications regarding the certainty applicants can have when they submit applications, and when counsel provide immigration advice. If the answer is the correctness standard, then a visa officer’s interpretation of the law will either be correct or not. If the answer is the reasonableness standard, then the courts will show considerable deference to how individual visa officers interpret the law, and it is possible that many different, acceptable interpretations of the same law will emerge.
I have previously blogged on the difficulty that citizenship applicants face when determining what constitutes “residency” for the purpose of meeting the “three years out of four” rule. If the Federal Court of Appeal answers that the reasonableness standard applies to a visa officer’s interpretation of the Regulations, then it is possible that this confusion will spread to other area of immigration law.
As the chart below demonstrates, while the Supreme Court of Canada has been moving towards the reasonableness standard in most administrative law contexts, the Federal Court of Appeal has so far resisted abandoning the correctness standard in the immigration context.
|Hilewitz v. Canada (Minister of Citizenship and Immigration)||
|Correctness||The parties are in agreement that correctness is the applicable standard for reviewing the visa officers’ decisions in these appeals.|
|Dunsmuir v. New Brunswick||
|Reasonableness||Guidance with regard to the questions that will be reviewed on a reasonableness standard can be found in the existing case law. Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity.|
|Nolan v. Kerry (Canada) Inc.||
|SCC||Reasonableness||The inference to be drawn from … Dunsmuir is that courts should usually defer when the tribunal is interpreting its own statute and will only exceptionally apply a correctness standard when interpretation of that statute raises a broad question of the tribunal’s authority.|
|Celgene Corp. v. Canada (Attorney General)||2011||SCC||Reasonableness||I also question whether correctness is in fact the operative standard. This specialized tribunal is interpreting its enabling legislation. Deference will usually be accorded in these circumstances. Only if the Board’s decision is unreasonable will it be set aside. And to be unreasonable, as this Court said in Dunsmuir, the decision must be said to fall outside “a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (para. 47).|
|Smith v. Alliance Pipeline||2011||SCC||Reasonableness||In this case, the Committee was interpreting its home statute. Under Dunsmuir, this will usually attract a reasonableness standard of review..|
|Canada (Attorney General) v. Mowatt||2011||SCC||Reasonableness||… the issue of whether legal costs may be included in the Tribunal’s compensation order is neither a question of jurisdiction, nor a question of law of central importance to the legal system as a whole and outside the Tribunal’s area of expertise within the meaning of Dunsmuir. As such, the Tribunal’s decision to award legal costs to the successful complainant is reviewable on the standard of reasonableness.|
|ATA v. Alberta (Information and Privacy Commissioner)||2011||SCC||Reasonableness||When considering a decision of an administrative tribunal interpreting or applying its home statute, it should be presumed that the appropriate standard of review is reasonableness. As long as the true question of jurisdiction category remains, the party seeking to invoke it must be required to demonstrate why the court should not review a tribunal’s interpretation of its home statute on the deferential standard of reasonableness.|
|Khan v. Canada (Citizenship and Immigration)||2011||FCA||Correctness||This Court has held that the standard of review to be applied to a visa officer’s decision is correctness.. the standard of review of the visa officer’s decisions in these cases is correctness.|
|Patel v. Canada (Citizenship and Immigration)||2011||FCA||Correctness||In my view, the jurisprudence has already determined that a visa officer’s interpretation of the Act or the Regulations is reviewable on the standard of correctness.|
As a result of the certified question in Qin, the Federal Court of Appeal will now have to address this issue head on. Frankly, it is difficult to predict how the FCA, and possibly, eventually the SCC, will rule on this issue. In Hilewitz, the last time the SCC discussed the standard of review in the immigration context, it ruled that the correctness standard applied. Since Dunsmuir, however, it has almost always ruled that the reasonableness standard applies in administrative law settings. There are some exceptions (notably in tax law) to this, and whether the FCA and the SCC carve out a similar exception in immigration law may be the most important development in Canadian immigration law this year.
On February 25, 2013, Justice Harrington certified a similar certified question involving the interpretation of the Immigration and Refugee Protection Act. He asked:
Is review by this Court of the meaning of “membership in a particular social group” in section 96 of the Immigration and Refugee Protection Act as determined by a member of the Refugee Protection Division of the Immigration and Refugee Board on the correctness or reasonableness standard?
Justice Harrington also provided his thoughts on the matter, stating that:
In my opinion, such a judicial review is based on the correctness standard. I say this because who comes and who goes is fundamental and central to the Canadian way of life. Legislation does not impose any requirement that members of the RPD have particular legal expertise. In speaking of the Immigration Division of the Immigration and Refuge Board of Canada in Canada (Minister of Citizenship and Immigration) v Thanabalasingham, 2003 FC 1225, affirmed, 2004 FCA 4, Madam Justice Gauthier, as she then was, said at paragraph 43: “Thus, on questions of law, this tribunal has little expertise compared to the Federal Court of Canada and there appears to be no particular reason to accord any deference.” I agree.
[UPDATE, MARCH 25, 2013]
In B010 v. the Minister of Citizenship and Immigration, (2013 FCA 87), the Federal Court of Appeal determined that the standard of review for decisions of the Immigration Division regarding inadmissibility was reasonableness. This was despite both the appellants and the respondents arguing that the Correctness standard applied.
In reaching its decision, the FCA noted that:
Members of the Board function in a discrete and special administrative regime. They have expertise with respect to the interpretation and application of the Act. The nature of the question of law is the interpretation of the phrase “people smuggling”. This question of statutory interpretation of the Board’s home statute raises neither a constitutional question, nor a question of law of general importance to the legal system as a whole. Neither does it involve a question regarding jurisdictional lines between competing specialized tribunals nor a true question of jurisdiction (to the extent such questions continue to exist; see,Alberta Teachers’ at paragraphs 33 to 43).
As such, the Board’s interpretation of the Act’s admissibility provisions now appears to be based on the Reasonableness standard. At the same time, however, the Court appeared to reiterate in paragraph 71 that the standard of review for cases involving the interpretation of the 1951 Refugee Convention is based on the Correctness standard, when it stated that:
In reaching this conclusion, I am mindful that this Court has previously applied the correctness standard of review to the Refugee Protection Division’s interpretation of international conventions (see, for example, Febles v. Canada (Minister of Citizenship and Immigration), 2012 FCA 324,  F.C.J. No. 1609, at paragraphs 22 to 25). There, the presumption of reasonableness review was rebutted by the majority of the Court in view of the need to interpret international conventions uniformly. In my view, cases such as Febles are distinguishable on the basis that here, the Board was interpreting sections 37 and 117 of the Act. Further, unlike the Refugee Convention, the Protocol anticipates individual states will enact different measures to fulfil the Protocol’s objectives (see: article 6, section 4). The uniformity concerns in Febles do not apply to the Protocol.