Issue #140: June 16, 2024
Boilerplate in visa applications, duty to consult.
Kashefi v Canada (Citizenship and Immigration), 2024 FC 856 (June 6, 2024)
Category: Application of the reasonableness standard.
Context: This is a judicial review of a visa application refusal. The Officer refused the applications based on a form letter. The Applicants sought judicial review of the decision on two grounds: (1) the form letter does not explain the reasoning underlying the refusal; (2) the Officer failed to explain why their applications were refused [7].
Issue: Is the decision reasonable?
Holding: “The reasons provided by the Officer are simply too generic to meet the standard of responsive justification demanded by [Vavilov]” [3].
Analysis: I have focused on the tension between boilerplate, form reasons and the Vavilovian “culture of justification” in this newsletter: see Issue #46, Issue #87, Issue #93. This tension is particularly resonant in the world of visa decisions, judicial review applications for which are inundating the Federal Court. For visa applications, the sufficiency of the reasons deciding the application have never been held to a high standard, because officers are dealing with a high volume of applications—and so form letters and boilerplate reasoning could suffice. On the other hand, the rules and doctrines flowing from this low standard are at least in tension with the idea of a culture of justification that demands engagement with the interests of the affected party.
In this case, Pentney J threads the needle well in a tight decision that should be saved. He notes that “[a] core underlying objective of the Vavilov framework of judicial review is to encourage administrative decision-makers, like the Visa Officer, to justify their decisions with reasons that demonstrate an engagement with the particular circumstances of each case, considered in light of the legal framework that applies” [13]. Reasons, such as these, which did not engage with the facts of the applicants’ situation do not suffice: the officer did not engage with family ties that might “pull” the applicants back to their home country at the end of their visa; a boilerplate statement that the “purpose of the visit does not appear reasonable given the applicant’s socio-economic situation…” is, similarly, not enough.
More importantly, Pentney J balances, on one hand, the “raised bar” for justification under Vavilov, and the context of visa decisions. While he accepts that visa officers (1) are asked to make decisions in a high volume setting; (2) can bring their expertise to bear in making a decision, these functional considerations do not outweigh the need to “demonstrate an engagement with the specific facts of the case, and provided sufficient detail to justify the result. Short, focused and clear reasons will be sufficient, and not every detail needs to be addressed” [15]. This is a precise statement of how decision-makers need to act under Vavilov.
More broadly—and foreshadowing future arguments—Pentney J offers a short comment on the practice of form letters after Vavilov. He says: “I will simply note that there may be legitimate questions to be asked about the extent to which the current practice of providing ‘standard form’ decision letters devoid of any meaningful details is consistent with Vavilov’s call for a ‘culture of justification’” [17]. As I have noted before in this newsletter, I agree. Some administrative practices will inevitably need to change to meet the bar in Vavilov.
Innu Nation Inc v Canada (Crown-Indigenous Relations), 2024 FC 896 (June 12, 2024)
Category: Preliminary objections (justiciability); duty to consult.
Context: This is an application for judicial review of a decision of the Minister of Crown-Indigenous Relations to enter into a memorandum of understanding [MOU] with the Nunatukavut Community Council [NCC]. The applicant, Innu Nation, seeks review of the Minister’s decision to enter the MOU on the grounds that it recognizes the NCC as the proper holder of section 35 rights. However, “the lands to which NCC asserts Aboriginal title and rights are the subject of treaty negotiations between the Innu Nation, Canada and the Province” [11]. Innu Nation argues that MOU “threatens to impact the Innu’s Constitution Act, 1982 section 35 rights, delay the completion of the Innu’s treaty and/or undermine the recognition or scope of the Innu’s rights and title under the treaty” [11]. Relatedly, Innu Nation argues that the decision is incorrect and unreasonable: incorrect because the MOU is inconsistent with s.35 of the Constitution Act, 1982; unreasonable, because the recognition of the NCC through the MOU is inconsistent with the governing law [12-13]. Finally, it argues that there was a duty to consult that was breached in this case.
Issue: Is the challenge to the MOU justiciable? Is there a duty to consult in this case?
Holding: The matter is not justiciable, and for similar reasons, there is no duty to consult owed in this case.
Analysis: This is an interesting decision about justiciability. A matter can be subject to judicial review where the state action affects legal rights, imposes legal obligations or causes prejudicial effects [62]. The Innu Nation’s argument was that the implicit recognition of the NCC as a collective capable of exercising Aboriginal rights through the MOU necessarily undermines its position. In this case, Strickland J concludes that the MOU does not itself establish or recognize particular rights [68, 78]. Given the text and intent of the MOU, this seems like a plausible conclusion. The MOU is rather a framework understanding to launch further discussions. It is not itself a recognition of constitutional rights.
On the duty to consult, the problem in this case arises because of the government’s choice to “explore new and more flexible ways of working together to advance the recognition of Indigenous rights and self-determination…” [70]. These more flexible methods may be used without a formal recognition of constitutional rights. The question is the extent to which these more flexible negotiation mechanisms attract a legal duty to consult
The way the argument was presented by Innu Nation is intriguing. Here, the applicant “has not challenged an actual decision by the Minister not to consult with it” [105]. Rather, it “submits that Canada erred in deciding that the duty was not triggered by the decision to enter the MOU and failed to discharge that duty by failing to consult prior to entering the MOU” [105]. The duty to consult is triggered when there is Crown conduct that potentially impacts the claim or right in question in an adverse manner [124]. Given the lack of justiciability in this case, it is no surprise that there is no legal “hook” on which to found a duty to consult. As Strickland J points out, the MOU is an “expression of good will and political commitment and does not create, recognize or deny any legal or constitutional right or obligation…” [125]. Strickland J says, accordingly, that “[i]n these circumstances something more, some further Crown conduct, is required for any potential impact to arise” [126].
This “something more” may come later in the process of which the MOU is a part [126]. Nonetheless, Strickland J’s decision indicates a general unwillingness to recognize that Canada’s more flexible modes of negotiation will give rise to impacts on legal rights, at least in this case. As in the law of procedural fairness, there is always a fine line between efficiency and governmental objectives and process-based duties that could make regulation and decision-making less flexible. Here, I think Strickland J is alive to this balance, given the MOU process.
Way v Nunatsiavut Government, 2024 FC 886 (June 11, 2024)
Category: Remedy.
Context and Analysis: This is a decision of the Inuit Membership Appeal Board. In 2012, Way was enrolled by the Board. In 2023, however, the Board changed its mind and found Way ineligible for membership because he lacked connection to Nunatsiuvut.
Grammond J allows the judicial review, and I highlight this case because of his discussion of remedy in the context of Indigenous self-government.As he points out, the usual rule is that a decision is remitted to the original decision-maker when it is found unreasonable. In the Indigenous context, this rule takes on added force, because of the added feature of Indigenous self-government. Here, however, Grammond J decides not to remit, and does so keeping in mind the nature of Indigenous self-government. Here, the Board failed to justify its decision at all; Grammond J raised questions about the Board Chair’s conduct; and “this is the second time the Board has rendered an unintelligible decision regarding Mr. Way’s eligibility” [44]. These sorts of considerations, in the Indigenous self-government context, might overcome the strong presumption in favour of remittal.