Dear SEAR readers,
Quiet week this week after a somewhat busy fall. As always, feel free to get in touch with me if you have cases to recommend or thoughts on the newsletter.
Mark
Persaud v Canada (Citizenship and Immigration), 2021 FC 1252 (November 17, 2021)
Context/Facts: This is a judicial review of a decision of an Officer refusing to grant a temporary resident visa (TRV) to a mother and daughter, both citizens of Guyana (the Applicant). The mother wished to visit her boyfriend, who is the father of her child and a permanent resident of Canada. The decision to deny the TRV was made based on the assumption that the Applicants would not leave Canada at the end of their stay given their previous travel history, family ties in Canada, current employment situation, and personal assets/financial status. It is also important to note that the Applicant had previously filed two TRVs that were also denied.
Issue: Was the Officer’s decision to deny the Applicant’s TRV application reasonable?
Holding: The Application for judicial review is granted. The refusal letter cites conclusions without explaining any reasons. As such, no rational, clear line of reasoning is present here.
Analysis: The case is one data point in a broader argument: maybe Vavilov is making a difference in terms of front-line decision-making. Much will depend on particular judges, but this case is at least an example.
Reasons in decisions of this sort in the immigration context, as the Court acknowledges, “do not have to be extensive…” [8]. Yet we see again at least a minimum reasoning standard operating. There needs to “be a rationale or a line to a rationale” that is evident in the reasons read holistically with the record [8]. Here, the Officer did not explain why they drew the conclusion that applicant would “abandon her job in Guyana, her widowed father and her friends in Guyana” [9]. Further, the travel history cited by the Officer did not cut one way or another: “…it is not obvious why the Applicant’s travel history—which shows no overstays or immigration difficulties—would lead to a negative conclusion” [10]. The record did not shed any light on this omission and others. This is a case where the Court can’t reason for the decision-maker and in my view the application was properly allowed.
Niyongabo v Canada (Citizenship and Immigration), 2021 FC 1238 (November 15, 2021)
Context/Facts: The Applicants are two minor sisters (15 and 11 years old) for Burundi who applied for study permits to study in Canada. Their study permit applications were refused by the same visa officer who cited issues with the current socioeconomic situation in Burundi acting as ‘pull factors’ keeping the Applicants in Canada beyond their legal stay. This finding was made despite having provided proof of funds, which included assets in Burundi as well as Canada and the fact that the Applicants have two older siblings already studying in Canada who could take care of them.
Issue: Was the Officer’s decision to deny study permits to the two Applicants reasonable? Was it reasonable for the Officer to rely on general country condition facts as a negative factor towards denying the study permit applications in question?
Holding: The application for judicial review is granted. The fact that the Officer did not explain how the general country facts pointed to in the decision actually connect to the Applicants’ personal situation renders the determination by the Officer unreasonable.
Analysis: This case, like Persaud (above), is particularly important for immigration law practitioners. Like in Persaud, the decision-maker here considers “a high volume of study permit applications” meaning that “extensive reasons are not required” [12]. But again, where there is no line that can be drawn between a conclusion and reasoning, there is a concern that the person impacted would not be able to understand the basis for the decision [12].
This occurred here. As Vavilov confirms, decision-makers are encouraged to apply their personal knowledge and expertise to the interpretation of their statutes or the exercise of their discretion (Vavilov at para 119 re statutes; Vavilov at para 31 generally). This manifests, in this context, as a general allowance for decision-makers to rely on their own knowledge of general “country conditions” evidence (see Bahr v Canada (Minister of Citizenship and Immigration), 2012 FC 527 at para 24). However, this is not a carte-blanche: here, the Officer failed to explain why the applicants had “weak ties” to Burundi [14], and why the general conditions in Burundi would mean the applicants would not leave at the end of the study period [12]. The officer must connect the general evidence to the actual facts and situation of the parties.
For more on how Vavilov is working in these front-line contexts, see: Issue #7, Issue #18.
Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own.
Quote of the Week: “On the other hand, the object of spurious interpretation is to make, unmake, or remake, and not merely to discover [the law]. It puts a meaning into the text as a juggle puts coins, or what not, into a dummy’s hair, to be pulled forth presently with an air of discovery”
Roscoe Pound in “Spurious Interpretation”