Canadian Supreme Court updates process for making a reasonable decision on immigration applications

A Canadian citizen at birth had his Canadian citizenship certificate cancelled because it was discovered that his parents were Russian spies.

The decision by the Canadian Registrar of Citizenship was appealed to the Supreme Court of Canada where the standard of review for administrative decisions was discussed. In particular, the case helps the government of Canada set out parameters, policies and procedures for Immigration, Refugees and Citizenship Canada (IRCC) officers to use when making an administrative decision to ensure the most reasonable and fair decision gets made.

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Alexander Vavilov was born in Toronto to parents who, it later was revealed, were under assumed names and Russian agents working for the Russian foreign intelligence service. Alexander did not know any of this. He believed that he was a Canadian citizen by birth and had a Canadian passport.

In 2010, Alexanders parents were arrested in the United States and charged with espionage. They plead guilty and were sent to Russia. When it was discovered who his parents really were, the Canadian Registrar of Citizenship cancelled Vavilov’s citizenship certificate. Under the Citizenship Act, children of a “diplomatic or consular officer or other representative or employee in Canada of a foreign government” are barred from receiving citizenship, which is an exception from the general rule that individuals born in Canada obtain Canadian citizenship by birth.

The case went up to the Supreme Court of Canada, where the case was decided in favour of Vavilov, stating that the Registrar’s decision was unreasonable, and Vavilov was able to regain Canadian citizenship. In doing so, the court established a new standard of review for Canadian administrative law.

Decisions made by immigration, citizenship, passport and border services officers are administrative decisions, and are thus subject to judicial review. The standard of review for these types of decisions refers to the amount of deference that a court of law should demonstrate toward a decision. The Vavilov case established that a presumption of “reasonableness” is the standard of review of all administrative decisions. A court must consider the outcome of a decision and the justification for the decision.

A decision will be reasonable when the court is able to follow the decision maker’s reasoning and logic in coming to their conclusion. A decision made must be based on coherent reasoning and justified in accordance with the facts and the legal context. An officer must follow certain steps to ensure they are making reasonable decisions when it comes to any immigration application.

1. Identify the requirements that need to be satisfied for the specific application category. These requirements are found in legislation and can be broken down into specific elements supported by evidence.
2. Identify the facts to be proven which are material to the decision at hand. A fact can be proven by an applicant when they have provided enough evidence for the officer to believe it to be likely. If the evidence does not lead to an officer finding that the fact is likely, then the officer can say the fact has not been established.
3. Apply the appropriate standard of proof. Immigration decisions are civil in nature so the standard of proof based on a balance of probabilities applies. For something to be proven on a balance of probabilities, it must be more likely than not to be true (more than 50%). Officers must review the evidence presented for each element and weigh the evidence to determine if the standard of proof is met.
4. Identify the relevant evidence to support the fact to be proven. This can be documentary evidence, physical evidence or verbal evidence. Any relevant evidence must be considered during the decision-making process and the applicant is responsible for providing sufficient evidence to satisfy the decision maker that the requirements have been met.
5. Assess the credibility of the evidence by looking at believability and reliability of the evidence. There is a presumption that facts or evidence presented by the applicant are true unless there is a compelling reason to believe otherwise.
6. Determine the evidence’s probative value by assessing the capacity of the evidence to establish the fact that needs to be proven. More weight is given to evidence that is definite, clear and probable. Speculation should be given no weight.
7. Determine whether or not the evidence is sufficient. If the evidence is more probable than not, than the officer can make a decision.
8. Make and record the decision. If there is credible and convincing evidence for each of the requirements, an officer may approve the application.

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