Last updated on October 20th, 2020
Last Updated on October 20, 2020 by Steven Meurrens
An interesting aspect of judicial review is that provincial courts show much more deference to provincial nomination programs than the Federal Court does of visa officers. Here are some key passages of two British Columbia Provincial Nomination Program judicial reviews.
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.
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.
Finally, in Jiang v. Manitoba (Minister of Labour and Immigration) et al., the Manitoba Court of Appeal stated:
It is not simply a matter of providing an explanation regarding each of the issues identified in the initial refusal and thereby becoming entitled to be nominated by Manitoba. The Program chooses the applicants that it is persuaded, on a discretionary basis, are most meritorious from within the pool of applicants. Therefore, the fact that she may have addressed the identified concerns does not mean that she was then automatically entitled to be nominated. The applicant must do more than fulfill the minimum requirements. It should be remembered that the question to be decided here is not whether this particular applicant can satisfy the Program that she will remain in Manitoba, but rather, given the pool of applicants, which of them will be most likely to remain in Manitoba and contribute to the economic development.
As well, the fact that Manitoba was not satisfied from the totality of the evidence that the appellant was likely to continue to reside in Manitoba was one of the possible reasonable outcomes that Manitoba could have come to based on the facts. Whether someone else might have come to another decision is irrelevant so long as there is some basis for the decision and it is not capricious or arbitrary.