Roodsari v Canada (Citizenship and Immigration), 2023 FC 970 (July 19, 2023)
Category: Application of the reasonableness standard.
Context: This is a judicial review of a study permit application that was rejected by an visa officer. The Officer primarily based the rejection around (1) family ties to Iran; (2) her study plan; (3) lack of satisfaction that the applicant had sufficient funds.
Issue: Is the decision reasonable?
Holding: No.
Analysis: This is yet another study visa application that has fallen on Vavilov’s increased requirements for justification and prohibition against supplementation. The decision begins with a rather telling commentary from Justice Strickland about the nature of study visa applications today:
[14] In many ways, this application for judicial review is typical of the current wave of applications for leave and judicial review filed with the Court by which foreign nationals contest the refusal of a study permit. Many of these applications are from citizens of Iran. The student applicants range from those in grade school to mature students seeking a further advanced degree. Typically, the reasons of the visa officer are short – often one paragraph or two in the GCMS notes – given the volume of applications to which they must respond. Conversely, the memorandums of fact and law filed in the applications for leave and judicial review will be lengthy, generally 30 pages and nearly 100 paragraphs. Often these are essentially standard form submissions made by the same law firms, with minor changes made to reflect the circumstances of the current matter. These submissions may or may not be closely connected to the matter at hand. Or, as in this case, the submission will compare the officer’s reasons, often on a line-by-line basis, to the submitted study plan to point out that the officer has not reasonably addressed the entire content of same.
Nonetheless, here the Court finds the decision unreasonable—a conclusion with which I agree. On the issue of personal ties to Iran, the officer said that the applicant is “39 years old, single, mobile…not well-established and has no dependents” [17]. Yet the Officer accepted that the applicant was close to her family in Iran. This left the Court wondering how the applicant failed to establish that she was not sufficiently established. This is a classic error that we sometimes see in visa applications.
The government tried to suggest that adequacy of reasons is not a standalone basis for review, and that the reasons can be discerned from the record and the evidence even in absence of explicit reasoning—for this latter point, the government relied on Zeifmans LLP v Canada, 2022 FCA 160 (Issue #60).
On the standalone basis argument, I think the Court is right to doubt this line from Newfoundland Nurses, 2011 SCC 62, post-Vavilov. Inadequacy of reasons could conceivably lead to unreasonable interpretations of statutes (see Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157 at para 28 et seq); and sparse reasoning unsupported by evidence in the record can cloak the basis of a decision, preventing adequate judicial review. Inadequacy can be a reviewable error in such cases.
The reliance on Zeifmans is taken too far. As I have noted before (see Issue #81) government counsel keeps calling on Zeifmans as a way to buttress insufficient reasons. Zeifmans stands for an important proposition: that explicit, written reasons need not be provided for every point, and reasoning can be inferred from the record and evidence. But sometimes, this will not be possible. It especially won’t be possible where, as here, the government arguably tried to make new arguments on judicial review that did not form the basis of the Officer’s conclusions [21].
Ghaddar v Canada (Citizenship and Immigration), 2023 FC 946 (July 12, 2023)
Category: Application of the reasonableness standard.
Context: A family, citizens of Lebanon, sought a writ of mandamus to compel immigration authorities to process their permanent residence application, filed in 2016.
Issue: Should mandamus be granted?
Holding: Yes.
Analysis: This is another recent case in which the writ of mandamus was actually granted (see Samideh v Canada (Citizenship and Immigration), 2023 FC 854, and the discussion in Issue #96). Given the extraordinary nature of the remedy, it is worth highlighting this case.
At issue in this case was the length of the delay and whether it was unreasonable. As in Samideh and Chen v Canada (Citizenship and Immigration), 2023 FC 885, the government’s explanation for the delay in this case was the requirement of security clearances. But here, as in Samideh, there was no evidence or reasons offered as to why the family’s application raised complex security issues. As the Court notes, “[t]here is simply nothing to explain the notable gap in the delay imposed on the Saad family compared to the average delay” [29, 33]. COVID-19 also cannot justify this delay [35].
There is also an interesting twist here. Readers will know that, in Chen, Justice Aylen found the delay unreasonable as well, but suggested that an applicant seeking mandamus must “also demonstrate significant prejudice” (Chen, at para 16). In Ghaddar, there is no mention of this additional prejudice requirement. And as Will Tao argues, the imposition of a “significant prejudice” test in mandamus cases arguably mixes together considerations relevant to the abuse of process doctrine with those pertinent to mandamus.
This isn’t just a theoretical issue. The persistent delays in immigration processing might make mandamus arguments more likely to be successful. But the imposition of a “significant prejudice” requirement might carve back this potential for success.
Janssen Inc v Canada (Health), 2023 FC 870 (July 17, 2023)
Category: Selection of standard of review (regulations)
Context: Janssen seeks judicial review of a decision of the Office of Submissions and Intellectual Property [OSIP] on behalf of the Minister of Health. OSIP decided that a patent was not eligible to be added to the Patent Register.
Issue: What is the standard of review?
Holding: “[62] I am satisfied that in this case, as no exception set out in Vavilov to reasonableness review applies, the standard of review is reasonableness and that the Court is to be guided by Vavilov (not Katz) and the cases of the Federal Court of Appeal that apply Vavilov in conducting its reasonableness review.”
Analysis: This case is yet another entry in the ongoing debate over what framework applies to the review of subordinate legislative instruments like executive regulations (see Issue #68). As we know, the debate is whether Vavilov has overtaken the Supreme Court’s special, highly deferential standard of review for executive regulations contained in Katz Group v Ontario, 2013 SCC 64.
Readers will know that I prefer Vavilov for review of these instruments, and the FC here follows FCA precedent in concluding that Vavilov applies. In doing so, the Court rejects the government’s argument that creatively tries to get around this FCA precedent holding that Vavilov applies. The government admitted that Vavilov’s reasonableness standard applies, but that the pre-Vavilov case law (and Katz itself) “remains instructive and applicable to vires challenges to regulations” [54]. The Court seems to reject this proposition [61]. And to the extent it did so, it did so for good reason. If one of the reasons to apply Vavilov to subordinate legislation is for reason of simplicity—it is, after all, an exercise of administrative power like any other—then it would only complicate things to add some additional gloss to reasonableness review involving Katz. My hope is that courts will reject the effort to complicate Vavilov with references to Katz.
For another example of a case this week on this issue that somewhat hedges on the question of Katz/Vavilov, see Paladin Security Group Ltd v Construction General Labourers, Rock & Tunnel Workers, Local 1208, 2023 NLSC 105 at para 52.
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.