How many Judicial Reviews?

One of the confusing aspects of a judicial review practice is determining how many applications are needed.

In Chambers v. Canada (Citizenship and Immigration), for example, the applicant filed one judicial review to seek review of i) an immigration Officer’s decision to prepare a report pursuant to subsection 44(1) of the Immigration and Refugee Protection Act (the “IRPA“) to the Minister of Public Safety and Emergency Preparedness’ delegate, (ii) the decision of the Minister’s delegate pursuant subsection 44(2) of the IRPA to refer the applicant, to an admissibility hearing before the Immigration Division of the Immigration and Refugee Board, and (iii) the decision of the Immigration and Refugee Board to order the applicant’s removal from Canada.

The Department of Justice argued that this was improper. However, Justice Bell disagreed, writing that:

The Applicant counters that this same issue was raised in Clare v Minister of Citizenship and Immigration, 2016 FC 545, [2016] FCJ no 513 [Clare]. In Clare, O’Reilly, J. disagreed with the Minister’s contention. He concluded that, “[w]hile it was open to Mr. Clare to seek judicial review of those other decisions, it was not necessary to do so in order to challenge the [Immigration Division’s] decision on admissibility”. While O’Reilly, J. acknowledged that in some cases applicants had challenged multiple decisions through separate applications, he did not interpret them as “requiring applicants to do so in order to challenge the ID’s decision on admissibility”.

Mr. Chambers contends this issue has already been disposed of by the judge who granted leave. I agree. Leave was granted on the application as filed, without any limitation. The question is therefore moot. However, by way of obiter, I would state that I agree with the approach adopted by O’Reilly, J. in Clare. Only one application for judicial review of the three section 44 decisions is necessary, because an applicant will not know of the need to challenge the decisions until a removal order has been made by the ID. Also, one application results in significant savings in time, litigation costs and judicial resources.


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.


Grounds for Judicial Review – Findings of Fact in a Perverse or Capricious Manner

Section 18.1(4) of the Federal Court Act, RSC 1985, c F-7, states that the grounds for judicial review are:

The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal

(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;

(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;

(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;

(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;

(e) acted, or failed to act, by reason of fraud or perjured evidence; or

(f) acted in any other way that was contrary to law.

Based its Decision or Order on an Erroneous Finding of Fact in a Perverse or Capricious Manner

In Rahal v Canada (Minister of Citizenship and Immigration), 2012 FC 319, Justice Gleason provided the following guidance on interpreting s. 18.1(4): 

In the seminal case interpreting section 18(1)(d) of the FCA, Rohm & Haas, Chief Justice Jacket defined “perversity” as “willfully going contrary to the evidence” (at para 6). Thus defined, there will be relatively few decisions that may be characterized as perverse.

The notion of “capriciousness” is somewhat less exacting. In Khakh v Canada (Minister of Citizenship and Immigration), (1996), 116 FTR 310, [1996] FCJ No 980 at para 6, Justice Campbell defined capricious, with reference to a dictionary definition, as meaning “marked or guided by caprice; given to changes of interest or attitude according to whim or fancies; not guided by steady judgment, intent or purpose”. To somewhat similar effect, Justice Harrington in Matondo v Canada (Minister of Citizenship and Immigration), 2005 FC 416 at para 1, [2005] FCJ No 509, defined “capricious” as being “so irregular as to appear to be ungoverned by law”. Many decisions hold that inferences based on conjecture are capricious. In Canada (Minister of Employment and Immigration) v Satiacum (1989), 99 NR 171, [1989] FCJ No 505 (FCA) at para 33, Justice MacGuigan, writing for the Court, stated as follows regarding conjecture:

The common law has long recognized the difference between reasonable inference and pure conjecture. Lord Macmillan put the distinction this way in Jones v. Great Western Railway Co. [citation omitted]:

The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. …

Turning, finally, to the third aspect of section 18.1(4)(d), the case law recognizes that a finding for which there is no evidence before the tribunal will be set aside on review because such a finding is made without regard to the material before the tribunal (see e.g. Canadian Union of Postal Workers v Healy, 2003 FCA 380 at para 25, [2003] FCJ No 1517). Beyond that, it is difficult to discern a bright-line. The oft-cited Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35, [1998] FCJ No 1425) [Cepeda-Gutierez] provides a useful review of the sorts of errors that might meet the standard of a decision made “without regard to the material” before the tribunal which fall short of findings for which there is no evidence. There, Justice Evans (as he then was) wrote at paragraphs 14 – 17:

… in order to attract judicial intervention under section 18.1(4)(d), the applicant must satisfy the Court, not only that the Board made a palpably erroneous finding of material fact, but also that the finding was made “without regard to the evidence” …

The Court may infer that the administrative agency under review made the erroneous finding of fact “without regard to the evidence” from the agency’s failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency’s interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency’s factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result.

On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court [citations omitted]… nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it … That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.

However, the more important the evidence that is not mentioned specifically and analyzed in the agency’s reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact “without regard to the evidence”: … In other words, the agency’s burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency’s finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.