Last Updated on February 10, 2011 by Steven Meurrens
Have you submitted an immigration application, gotten a negative response, and cannot figure out why? As previously noted in this blog, the duty of fairness only requires that visa officers provide the most basic or minimal reasons for their conclusions and determinations. However, the reasons must still amount to actual, coherent, reasons.
This duty requires the provision of written reasons for a decision. This is especially the case where a decision has important ramifications for the individual or individuals in question. In Baker v. Canada, the Supreme Court noted that:
It would be unfair if the person subject to a decision such as this one which is so critical to their future not be told why the result was reached.
The principle is simple: Unsuccessful litigants (or applicants) should not be left in any doubt as to why they were unsuccessful.
In VIA Rail Canada Inc. v. National Transportation Agency,  F.C. 25 (C.A.), the Federal Court of Appeal held that:
The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. Rather, the decision maker must set out its findings of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue. The reasoning process followed by the decision maker must be set out and must reflect consideration of the main relevant factors.
So just what constitutes sufficient reasons? One of the leading cases analyzing this issue is Adu v. Canada (Minister of Citizenship and Immigration), 2005 FC 565. The case dealt with an application for a visa exemption for humanitarian and compassionate grounds. In denying the application, the Immigration Officer stated that:
I acknowledge that both applicants have established themselves in Canada. It is reasonable to expect that after more than ten years in Canada, they would become established. Both applicants have upgraded their skills in Canada and have been steadily employed. They have not had to rely on social services for financial support. Despite the positive contributions the applicants have made, I am not satisfied that their establishment in Canada constitutes grounds for which an exemption should be granted. I am not satisfied that they have sufficiently demonstrated that the requirement of applying for a visa at a visa office abroad represents unusual, undeserved or disproportionate hardship.
The judge in Abu found that these reasons were completely inadequate. In a paragraph that has been cited in many future judgments, he noted that:
In my view, these ‘reasons’ are not really reasons at all, essentially consisting of a review of the facts and the statement of a conclusion, without any analysis to back it up. That is, the officer simply reviewed the positive factors militating in favour of granting the application, concluding that, in her view, these factors were not sufficient to justify the granting of an exemption, without any explanation as to why that is. This is not sufficient, as it leaves the applicants in the unenviable position of not knowing why their application was rejected.
This paragraph was recently re-iterated in Ventura v. Canada (Citizenship and Immigration), 2010 FC 871. There, the potential immigrant was Angolan. In his Humanitarian & Compassionate application, he listed various ties that he had to Canada, including family relations, community involvement, and establishment in the community. The case is interesting because the government argued that the Immigration Officer did not have to provide detailed reasons because the applicant himself had not explicitly elaborated on why the enumerated factors would constitute hardship. Justice Montigny rejected this argument, and found that the listing of the factors provided enough for the Immigration Officer to work with, and that as the application was complete sufficient reasons were required. The implication is clear: you do not need to provide specific legal arguments in your application, as long as the substance is there.
Here is another example of insufficient reasons from the case Rolfe v. Canada (Minister of Citizenship and Immigration), 2005 FC 1514. There, the applicant was an individual applying for permanent residence. He had extensive experience leading mountaineering expeditions in Europe, and wanted to apply under the self-employed persons class on the basis that he could establish himself economically by leading arctic expeditions.
In rejecting the application, the Immigration Officer stated:
Subsection 12(2) of the Immigration and Refugee Protection Act states that a foreign national may be selected as a member of the economic class on the basis of their ability to become economically established in Canada.
Subsection 100(1) of the Immigration and Refugee Protection Regulations 2002, states that for the purposes of subsection 12(2) of the Act, the self-employed persons class is prescribed as a class of persons who may become permanent residents on the basis of their ability to become economically established in Canada and who are self-employed persons within the meaning of subsection 88(1)[of the same Regulations].
Subsection 88(1) of the regulations defines a “self employed person” as a foreign national who has relevant experience and has the intention and ability to be self-employed in Canada and to make a significant contribution to specified economic activities in Canada.
“Relevant experience” means at least two years of one of the following types of experience in the period beginning five years before the date of application for a permanent resident visa and ending on the day a determination is made in respect of the application, namely,
(I) self-employment in cultural activities or in athletics,
(ii) participation at a world-class level in cultural activities or athletics, or
(iii) farm management experience.
“Specified economic activities” means cultural activities, athletics or the purchase and management of a farm.
Subsection 100(2) of the regulations states that if a foreign national who applies as a member of the self-employed persons class is not a self-employed person within the meaning of subsection 88(1), the application shall be refused and no further assessment is required. You do not come within the meaning of a “self-employed person” set out in subsection 88(1) of the regulations because I am not satisfied that your experience as an explorer, leader of northern expeditions, and husky trainer is recognized as a form of cultural activity, sports or farming under the intent of Section 88 of the regulations. You do not meet the requirements of subsection 100(1) of the regulations.
Not satisfied that experience as an explorer, leader of northern expeditions, and husky trainer is recognized as a form of cultural or sports activity? With no explanation as to why? Not surprisingly, the Court allowed the appeal.
The principle that can be derived from this string of reasons is clear: Reasons have to be more than just a conclusion. They must provide a logical train of thought, such that one can determine how the conclusion was reached. The reasons do not have to be particularly detailed, but the train of thought must still be there.
Those that have received rejection letters should also know that the visa officer has a more detailed set of reasons that have been recorded on the system. These reasons are generally not included in the formal rejection letter. Applicants should generally not re-apply without first obtaining a copy of the reasons in the system.