In December 2018 I wrote an article for The Canadian Immigrant about a Supreme Court of Canada case that had just been heard which could have a significant impact on Canadian immigration law. The case, Minister of Citizenship and Immigration v. Alexander Vavilov, was about whether a child who was born in Canada to Russian spies is a Canadian citizen. The Supreme Court of Canada before hearing the case announced that it was considering changing the law on how a legal principle called the “standard of review” works in Canadian administrative law.
On December 19, 2019 the Supreme Court of Canada released its decision. The Supreme Court created a revised framework for the standard of review in judicial review applications. Vavilov has significant implications for how Canada’s Federal Court will review the decisions of immigration officials.
Understanding The Standard of Review
As I wrote in December, the standard of review pertains to how courts review 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, deportation orders, etc.
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 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 Said 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. This is because Parliament has chosen to delegate decision-making authority to them. The Federal Court’s review must entail a “sensitive and respectful” evaluation of administrative decisions” and that the Federal Court should set aside decisions “only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process.”
The Supreme Court further stated that going forward the reasonableness standard review would be more robust than previously. Judicial review will not be a “rubber-stamping” process or a means of “sheltering administrative decision makers from accountability.” Judges must 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 that the reasonableness analysis focuses on the reasons, not outcomes. Prior to the decision some had argued that even if a visa officer’s rational in refusing an application made no sense a judge should uphold the decision if they might have reached the same decision. However, as the Supreme Court of Canada stated, “while some outcomes may be so at odds with the legal and factual context that they could never be supported by intelligible and rational reasoning, an otherwise reasonable outcome also cannot stand if it was reached on an improper basis.”
Second, the Court stated that reasons that “simply repeat statutory language, summarize arguments made, and then state a peremptory conclusion will” generally not be reasonable. A decision will also be unreasonable if it fails to reveal a rational chain of evidence, if the conclusion cannot follow from the analysis or if the reasons read in conjunction with the record do not make it possible to understand the decision maker’s reasoning on a critical point. Reasons that contain circular reasoning, false dilemmas, unfounded generalizations or absurd premises will also be unreasonable.
Third, the court ruled that where there is existing Federal Court of Canada jurisprudence on how to interpret Canadian immigration legislation, “it would be unreasonable for a decision maker to interpret or apply the provision without regard to that precedent.” In the immigration context, the Supreme Court of Canada specifically stated that “where an immigration tribunal is required to determine whether an applicant’s act would constitute a criminal offence under Canadian law it would clearly not be reasonable for the tribunal to adopt an interpretation of a criminal law provision that is inconsistent with how Canadian criminal courts have interpreted it.”
Fourth, the Supreme Court affirmed that while decision makers do not have to address every piece of evidence, “a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it.”
Fifth, responding to concerns that the reasonableness standard is resulting in a system where the identity of the decision maker is becoming increasingly important (in other words, whether someone gets a visa will depend on which officer they get) the Supreme Court stated that “administrative decision makers and reviewing courts alike must be concerned with the general consistency of administrative decisions” and that “ those affected by administrative decisions are entitled to expect that like cases will generally be treated alike and that outcomes will not depend merely on the identity of the individual decision maker.”
Of particular note is that previously some Federal Court judges had stated that immigration officials could ignore Immigration, Refugees and Citizenship Canada guidelines and the government website in their interpretation of the law. The Supreme Court appears to have cautioned against this, noting that summaries of past reasons, standards, and policy directives should guide the work of frontline decision makers. Where a decision maker does depart from an established internal authority, it bears the justificatory burden of explaining that departure in its reasons.
Finally, the Supreme Court did state that the correctness standard would apply where there is a statutory right of appeal. Canada’s Immigration and Refugee Protection Act provides that “an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the judge certifies that a serious question of general importance is involved and states the question.” The Federal Court of Appeal had previously been applying the reasonableness standard. This will presumably change, and many of its previous decisions will likely need to be revisited.
Vavilov is a new decision, and in 2020 the biggest story in Canadian immigration law will be how the Federal Court applies it. A more robust reasonableness standard is welcome, especially one which appears to say that immigration officials need to follow their Department’s guidelines and the website. A lack of consistency is one of the biggest complaints about Canada’s immigration system, and hopefully a more pronounced emphasis on transparency and intelligibility will result in a more fair and rationale process.