Supreme Court of Canada Updates Reasonable Decision Making Process on Immigration Applications


Posted July 24, 2022 8:00 a.m. EDT

A Canadian citizen by birth has had his Canadian citizenship certificate revoked because his parents were found to be Russian spies.

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

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Alexander Vavilov was born in Toronto to parents who, it was later revealed, were under Russian aliases and agents working for the Russian foreign intelligence service. Alexander knew nothing of all this. He believed he was a Canadian citizen by birth and held a Canadian passport.

In 2010, Alexander’s parents were arrested in the United States and charged with espionage. They pleaded guilty and were sent to Russia. When it was discovered who his parents really were, the Canadian Citizenship Registrar canceled 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” cannot receive citizenship, which is an exception to the general rule that people born in Canada obtain Canadian citizenship by birth.

The case went to the Supreme Court of Canada, where the case was decided in favor 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 my Immigration, Citizenship, Passport and Border Services officers are administrative decisions and are therefore subject to judicial review. The standard of review for these types of decisions refers to the degree of deference a court must show to a decision. The Vavilov case established that a presumption of “reasonableness” is the standard of review for all administrative decisions. A court must review the outcome of a decision and the rationale for the decision.

A decision will be reasonable when the court is able to follow the reasoning and logic of the decision maker to reach its conclusion. A decision taken 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 that they make reasonable decisions when it comes to any immigration application.

  1. Identify the requirements to be met 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 prove which are decisive for the decision in question. A fact can be proven by an applicant when he has provided enough evidence for the officer to believe it probable. If the evidence does not allow an officer to conclude that the fact is probable, then the officer can say that 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 the 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 item and weigh the evidence to determine if the standard of proof is met.
  4. Identify relevant evidence in support of the fact to be proved. It can be documentary evidence, physical evidence or verbal evidence. All 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 evidence by examining the credibility and reliability of the evidence. There is a presumption that the facts or evidence presented by the applicant are true, unless there is a compelling reason to believe otherwise.
  6. Determine the probative value of the evidence by assessing the ability of the evidence to establish the fact that needs to be proven. Definitive, clear and probable evidence is given more weight. Speculation should have no weight.
  7. Determine whether the evidence is sufficient or not. If the evidence is more likely than not, the officer can make a decision.
  8. Make and save the decision. If there is credible and convincing evidence for each of the requirements, an officer can approve the request.

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