Should courts defer to immigration officers’ decisions?
Credit to Author: Steven Meurrens| Date: Mon, 17 Dec 2018 21:18:43 +0000
Supreme Court of Canada Vavilov decision could have broad impact on immigration law
In 2019, the Supreme Court of Canada will release what could be its most impactful decision on Canadian immigration law in a decade. The case, Minister of Citizenship and Immigration v. Alexander Vavilov is about whether a child who was born in Canada to Russian spies is a Canadian citizen.
Canadian citizenship legislation states that people who are born in Canada but have a parent who is a “representative or employee in Canada of a foreign government” are not Canadian citizens. Upon discovering that Vavilov’s parents were Russian spies, an immigration official cancelled his citizenship. The Supreme Court of Canada must now address whether it will uphold the immigration official’s decision that being a spy means that one is a representative or employee of a foreign government.
While Vavilov at first seems to involve a narrow issue that does not impact many people, in May 2018 the Supreme Court announced that it was going to hear this case at the same time as two non-immigration related cases, and that the court was going to use the trilogy of cases to consider whether the law on the standard of review of administrative tribunal decisions needs to be changed.
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.
If the Supreme Court changes the law on standard of review, it would have a dramatic impact on Canadian immigration law.
The question on most immigration lawyers’ minds going into 2019 is what does the Supreme Court plan on doing?
Understanding the standard of review
The question here is what degree of deference courts should show these immigration officials.
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.
Under current standard of review principles, judges show a great deal of deference to immigration officials and will only intervene if their decisions are unreasonable. An exception to this involves matters of procedural fairness, where the correctness standard applies. A decision is either fair or it isn’t.
The standard of review for the interpretation of law, like the immigration official’s decision that being a spy means that one is a representative or employee of a foreign government, is a little more muddled. Indeed, one Federal Court of Appeal judge recently remarked that the multiple standards of review in different situations is so unclear it has resulted in the state of judicial review becoming incoherent. This is likely the reason why the Supreme Court of Canada in Vavilov has indicated that it will revisit the issue.
Degrees of deference
The question on most immigration lawyers’ minds going into 2019 is what does the Supreme Court plan on doing?
The Government of Canada, perhaps not surprisingly, argued to the Supreme Court that judges should show a great deal of deference to the decisions of immigration officials, regardless of the seniority of the official. Judges should not set aside decisions just because they contain inconsistencies, are vague or omit pieces of evidence.
If the judge looks at the application and thinks, “I can see how the officer reached their decision” and the decision was a reasonable outcome from a range of possible outcomes, the decision should stand. As well, the government argued that it is OK if different visa officers have different interpretations of the law, so long as their interpretations are also reasonable.
Vavilov’s lawyers, on the other hand, argued that not all immigration officials should be given the same degree of deference. As well, the greater the decision has on an individual, the less deference courts should show.
Furthermore, Vavilov argued that showing deference on matters of interpreting what the law is will result in inconsistent decisions, as each visa officer would essentially be able to apply their own standards.
There were dozens of other organizations and levels of government that made arguments before the Supreme Court of Canada during the three days of the Supreme Court of Canada’s hearing in December 2018. They all presented different opinions and suggestions as to what the standard of review should be.
The hearing has concluded. And now we wait for the Supreme Court of Canada’s decision. It has the potential to impact every visa applicant and individual who interacts with Canada’s immigration system.