All posts by Will

‘I Don’t Get to Call Myself An Ally’ – But I Can Aim Towards Becoming One

Tomorrow, for the first time I am speaking on the topics of decolonization and intersectionality. I don’t think I have ever been as nervous for a talk. It is a topic I have been engaged in for the past several months, but it still feels to me a new term. However, there is some value into speaking to the newness and humility. That is why I eventually put my name forward and agreed to speak.

It has been a long time coming. A year ago, I don’t think I could have spoke on this topic let along would I have put my hands up to even volunteer. The pathway to learning about colonialism, decolonization, intersectionality, racism, and discrimination in our society has been a difficult one. It has forced me to confront my own current role (and definitely my past roles) in perpetuating my privilege and my power in not only my ‘colonial work’ but in the way I may have approached community service. I lose sleep now in ways that I did not before – because I am exposing myself to my own shortcomings and the painful truths I conveniently avoided in years past.

I am glad that it is slowly stripping away an ego that I think the process of being a lawyer almost inherently instills. I feel more humbled and I thank the learning I am doing and the social activists I am meeting for transforming me.

This process has highlighted mistakes I have made in the past in this regard.

For example, I donated money to a local organization on behalf of my law firm thinking I was doing good while simultaneously shirking a previous responsibility I had to that organization, as a volunteer. I realize that I was donating to cover up my own guilt and that goes against the very principles of decolonization that I am now learning about.

A second mistake I made was for a long time this law blog had an Indigenous logo that a non-Indigenous friend designed over. That appropriation of culture was entirely inappropriate. Even now, I am aware my logo is Indigenous and I am not – something I need to be extremely careful about as I consider the direction my blog goes and the societal/policy issues we engage with. I think that by engaging an Indigenous artist Diamond Point, we’ve made a step in the right direction but Indigenous recognition – much like, can very easily turn into lip service with no corresponding action.

All this to say – I don’t get to become an ally – just by reading a few pieces and attending a few workshops, giving a few talks, writing a few tweets, and making a few donations. Becoming an ally requires an investment in time, but more importantly a humility that this is a fight I care about but a fight that ultimately I need to support my Indigenous brothers and sisters in. I need to advocate but more importantly listen and be present when listening.

I had a colleague tweet in reply, not so long ago to a post of mine, that I also needed to show sensitivity when talking about things such as the residential school experience or the experiences of Indigenous women, as the very bringing up of these themes could be triggering to them.

As lawyers, we love to talk, to write, to share. It almost seems like the test for good advocacy is whether you have been to Court recently, what level of Court,  what policy issues, and what media opportunities. The first two months of this year gave me some incredible platforms but frankly I did not do enough to use those platforms to shift conversation or give light to underrepresented and more deserving voices, especially Indigenous voices. Indigenous issues are still so peripheralized and othered in mainstream media – through a lens that more often than not dehumanizes.

We seem more engaged with global events that have little effect on us, but that generate clicks and false outrage, than we do with local suffering that we are all collectively responsible for as settlers on stolen land – which should generate real outrage. It is as if those problems are our Government’s and that ‘reconciliation’ has solved all problems. From what I am seen and heard, it hasn’t even begun to scratch the surface.

When it comes to tomorrow’s talk on decolonization and intersectionality – I plan to share with these young impressionable minds of the amazing RADIUS program I am speaking to – my journey and my stumbles.

I also very much aspire to this idea that decolonization cannot be a metaphor for general social change, social justice, and anti-colonialism/oppression. If we water down decolonization, or worse yet, forget decolonization needs to come hand-in hand with indigenization (and not just of mind and rhetoric) – we may do more harm than good. I am also aware that this process will involve ceding of power, privilege, and land. Anything else, and it turns again into rhetoric and feel good excuses for our continued settler privilege and justifications for modified colonal appetites. We also need to come to global understandings of indigenizing that also doesn’t allow for the term to become homogenization.

Canadian indigenization – and where it comes from is historically grounded by systemic and full-scale wrongdoing that sought to wipe out Indigenous culture. Indigenization in another context, for example a country that believes in protecting and preserving one’s indigenous roots at the expense of newcomers or racial intermixing, can become problematic and the basis of racial/ethnic supremacy.

I think the position we come from and the model we develop in Canada will be very unique and we have to be careful to reconcile that with other world views and with the world view of newcomers. Introducing Indigenous issues and history to newcomers will become a major priority of mine, once I go through my own learning process.

On the topic of intersectionality, we need to also develop a Canadian model that takes into account Indigenous women, as a foundation for our BIPOC perspective. Indigenous and two-spirited women have had their identities marginalized and it is routed in the aforementioned colonial policies. Decolonizing will help highlight and tackle intersection issues.

Parallel, and simultaneously, we need (and I am grateful we are starting to see) the rise of powerful women entering newsrooms, media, politics, law, and other area of influence to highlight the structural, political, and representative intersectionality that marginalized and minority women find themselves in as a result of the narrowed patriarchal lens which creates male-dominated viewpoints or allows on some women in on our major conversations.

Our Canadian understanding and study of this concept is so behind, that on major issues – such as Karen Wang and recently, Jody Wilson-Raybould, – no one even brings it up. This gap in analysis (coupled with the consistent racelessness and neoliberal ‘multiculturalism’ espoused by those in positions of power) wipes out the experience of women of colour. This is unacceptable and as a man of colour, I bare my share of the blame for not tackling our own community stereotypes here.

To conclude, where I started, I’ve been thinking a lot about these issues, but I am not an ally (yet). I don’t get that label easily. I may never get it. I need to be listener, a repenter, and learner, a more humbled down human being. I need to use my voice and rather than sit silently while I watch the narrative be shifted, use my voice and privileges to shift the narrative to places where we need it to go.

Some of you will be sick and tired of me writing about race, taking as comedian Aamer Rahman wrote about “white person this, white person that.” On this point, I want to share the recent writing of Sandra Inutiq in her piece Dear Qallunaat. The headline says it best.

‘Recognize and admit your power and privilege and the fact you are benefiting from racist systems’

Even as a non-White settler, I have benefit from it too and I need to be more aware of this. Similar and parallel systems that made my ancestors Han Chinese and scholars in China from (my late father’s side) relative affluence and education made me benefit there too.

It’s time to strip away ego, recognize and admit privilege, and cede power and land back to our Indigenous brothers and sisters. In the process, I trust that the empowerment and deconstruction of barriers for BIPOCs will naturally occur. Canada will be a more equitable, equal, and truly diverse place.

With peace and love.

Will

I Want What Timmy Has – A Short Narrative

I haven’t wrote a fictional, lighter piece in a while so I thought I’d put together this short narrative. Like many stories there are elements of my own life embedded into it. I am also sure many of you can relate to some of the streams of written thought I go on. I’ve made a commitment to myself to do more non-fiction writing in 2019 so here’s a quick one!

 

I stared at him across the room. Timmy. My part time friend and part time enemy “frienemy.”

Like always he was the centre of attention. Table packed with the most attractive girls from our class, the guys from the hockey team, and today a few young admirers I recognized from last night’s big game.

I did not have the luxury of such a fan base.

Like every other noon o’clock it was my daily period of solitude.

Today my friend Chen was sick – that or his parents took him back to China again. The rumour going around was that all us had the Asian flu. Including me, who I note never ever had stepped a single foot in the motherland, Asia.

It usually would just be us two – talking about, well mostly it was a silent Buddhistic ritual. His mom was a good cook – I would ask him what he was having. It usually looked and smelled better than mine. That and he had the triple layer thermos that neatly separated his rice, meat, and vegetable dishes. My own dented thermos carried a mystery mix or yesterday’s leftovers and some hidden surprises my pops whipped up at 7am. He was up early every day to make our lunches.

It wasn’t that I hated Timmy. If this was PE (Phys Ed) class we’d still share occasional laughs but half the time he may have been laughing at me. See I wasn’t the fittest boy in class. While rap fashion was in and I was of above average weight, the extra large hoodies and pants didn’t help. They were off the discount rank and I didn’t know better. The colours usually a mix of vibrant yellow, orange, and white accentuating how out of shape I was. The gym was a foreign place of growth stinting potential – one of the many places and spaces, the rules dictated I was forbidden to visit.

Timmy went into his brown paper bag and pulled out his sandwich. It looked like Black Forest Ham. I never much liked sandwiches but I was jealous of the neat tinfoil wrapping. His lunch was a series of hidden surprises. Sometimes he would gift a piece to his favourite admirer, who would woo and give him a peck on the check or one of those deep hugs that I desired – the hugs the members of the hockey team would give to each other after a nice goal, or when greeted by their fans after the game. All I had were the handshakes of a good game after a tennis match – usually one I would also be excluded from, riding the pine (or the place behind the chained fence, as it usually was in our tennis games).

Exclusion was a natural concept for me in these years. Excluded from my culture, from Timmy’s culture, from the school culture. I took refuge in my own little world of written words and verses, of Tupac and Em, much to the chagrin of my deeply conservative-music classical music listening family.

Today Timmy took out a cylindrical round thing out of his bag. I could tell by it’s colour – green that it was gold to me. The bane of my existence. Everything I wanted. I had tried asking for it before. Mom’s would tell me – ‘why the heck would you eat that when you eat the actual thing itself?’ and ‘do you think we’re a white family? – it’s too expensive’

I craved the sweetness, the granular, smooth texture. To me it was finer than the fanciest cake (not that we had any options but the over dry, fake peach fruit cake of every birthday ever). Timmy opened it up, licking the lid, blissfully unaware that the three girls surrounding were watching the tip of his tongue with eyes wide of excitement as they were already engaged in second base. Whatever, second base was – for me it was just Roberto Alomar.

A white plastic spoon came out of his brown paper bag. I stared down at my own chopsticks, which in my lack of attention paid had turned into one chopstick and one game of pick-up sticks waiting on the floor.

Timmy was smiling, he blue at his bleached blonde hair – spoon caressing carefully the corners of the plastic cup.

This is a memory I always carry with me. I carried it years later when I was in a foreign land (where what Timmy was having was entirely foreign). One of my classmates at the time had her family from Mid-West USA deliver some packages of the stuff. It was so damn good, I went for thirds and skipped dessert.

But, more than that, it represented a jar of memories, a cup of perfection of a culture that I never could fit in but damn right wanted to. An object of affection to a soul that at material times both crave it and lacked it.

I want what Timmy has. To be honest I still want it today.

I want that damn Apple Sauce.

IRCC Makes Positive Changes to the Post-Graduate Work Permit Program – February 2019, But First A Little Personal History About Pushing Change

Part 1: First – A Little Personal History about Pushing Change

In advance, I want to make clear that I am not writing this first section to make it appear as if I had anything to do with the changes announced today. This was done by concerned students, stakeholders, schools, other lawyers, and great IRCC policy people engaged in this issue. I am writing this because I’ve been asked by a number of young mentee law students/pre-law students recently (and other fellow junior lawyers) how I got so engaged with international student issues. Rather than just simply copy and paste the website changes, I thought the process of my interest, advocacy, and how it all plays in – may be of interest to some readers.

Since IRCC implemented their clarified directive Study Permits: Assessing study permit conditions I had a feeling that new instructions on the PGWP would be coming. A month ago, Immigration Representatives confirmed to me by email that this was the case:

Actively pursuing studies

A month later, on Valentine’s Day no less, IRCC placed some little cards into the brown paper bags tied into the back of plastic chairs of international students (sorry – as you can tell I’m getting off topic and nostalgic, as I write) .

As frequent readers of this blog will know, I have been advocating for PGWP changes for several years now, having assisted many clients in various stages of challenges with this program – ranging from eligibility concerns, to initial applications at Inland Offices, VOs, and POEs, to the Federal Court, and reconsideration requests. I gave talks, wrote a lot of articles, had student clients who speoke to media, and advised schools – all because of the uncertainty. At one of my talks I think I described being an international student in Canada as being caught in a rough ocean with a life jacket on and a PR island that often appears too far to swim to.

The past few years began to see a lot of challenges in the area. Refusal rates began to climb and international students, especially from those with non-traditional study programs or for reasons outside of their control had to take leaves in order to complete their studies. While I was successful in restoring several international students who had been refused, either for having their study permits lapse or having paid less than the required fees, the case law during the time (notable FC cases from Raj Sharma and later Ravi Jain), started to close the door on that process.

There was also a huge health toll, one that was lost in the rhetoric of blame placed on international students in mainstream media. I talked a bit about it with journalist, Melanie Green here.

International students, many already dealing with separation anxiety, isolationism, and culture shock, not only pay often times 3 to 4 times the tuition than domestic students, but also face other barriers limiting their ability to work and seek access to crucial settlement services.

From a personal perspective, my own spouse was at the time going through the international student experience as were her colleagues (and I was footing the bill of course!) I saw these issues affect a lot of her friends, especially the financial challenges. Personal experience goes a long way into building a passion for practice.

Looking back, given  I was having a conversation about this with IRCC program managers such under three years ago about the need for change – it has indeed been a long time coming.  It has been incremental – but now there is a clear list of DLIs on the website, as discussed earlier, the aforementioned actively pursuing studies requirement was clarified, and now this.

I am very proud of IRCC for stepping up for international students. Without further ado, here are the changes.

Part 2: The Changes

IRCC’s changes can be found here and are titled “Program delivery update: Processing Instructions for the Post-Graduation Work Permit Program.”

There are two major changes from IRCC and one change that I would also add to the list, around the leave provision.

Change 1: Deadline to Apply Extended from 90 Days to Six Months

There is now a six month period, instead of a 90 day period in which to apply for a Post-Graduate Work Permit. This gives a lot of flexibility for students to further explore after graduation whether they want to continue studying or apply for a post-graduate work permit. It also removes a lot of the uncertainty which arose when a student was told they had completed their studies but did not formally graduate until several months later, creating confusion on the 90 day period starting point. Six months will make that much better.

One of the things I do see arising out of this is change is a lot of schools that were previously thwarted (or had negative fallout) from four-month add on programs now integrating it into their programs. The raison-d’etre is that these programs could assist into entry-to practice and help students secure employment without killing valuable time off their PGWPs. It may also encourage some students to continue studies rather than graduate and apply for PGWPs.

This could create problems though if a student applies at month 4 of 6, makes a mistakes, and becomes ineligible for restoration. Furthermore, I think IRCC and related stakeholders do have a role to play with respect to sussing out that interplay between R.222(1) (a) IRPR which could invalidate the student status of individuals who intend to apply for a PGWP at month 4 or 5 but not continue their studies. These students could lose status unknowingly.

The possible solution? Visitor Record Extensions may need to be employed to bridge between end of student status and prior to a PGWP application.

Change 2: No need to hold a valid study permit while applying for a PGWP

This is a big one – which unfortunately came off the backs of several deserving applicants who were refused. Previously, students whose study permits were going to expire before they were able to apply for PGWP had to extend their status, creating a weird scenario where they had graduated but still had to apply to maintain student status at the institution. This also affected a lot of students who decided to leave Canada right after they graduated and apply abroad, forgetting to extend their study permits.

This was also the main issue in my colleague Ravi Jain’s case of Nookala v. Canada (Citizenship and Immigration), 2016 FC 1019 which unfortunately for awhile closed the door.

Now the language is hold or held a study permit.

This also opens the door for restoration at least within the six month period. This goes again to the importance of applying earlier (rather than later) for a PGWP in most circumstances.

I would like a little more clarity around Restoration and think it should be a separate section on the program guidelines.

Change 3: Leave Exception – Discretion to Issue PGWP Where Not Continuous Full-Time Studies

IRCC has added to their instructions information about leave which specifically carve out an exception for those students who took a leave.

The Instruction state:

Leave from studies

If the applicant remained in Canada while a student and took leave from their studies during their program, the officer must determine if the applicant was compliant with the conditions of their study permit, as outlined in Assessing study permit conditions. Officers may request additional documents to complete their assessment. Per paragraph R220.1(1)(b), students must

  • be enrolled at a DLI
  • remain enrolled
  • be actively pursuing their course or program of study

If the officer determines that the student actively pursued studies during their leave, the student may still be eligible for the Post-Graduation Work Permit Program (PGWPP).

If it is determined that the student has not met the conditions of their study permit, they may be banned from applying for a post-graduation work permit for 6 months from the date they stopped their unauthorized study or work, per subparagraph R200(3)(e)(i).

This suggests that in addition to leeway – there could also be individuals banned from applying, depending on the time elapsed before graduation. However, as we know there is also a final semester rule that does provide some comfort to international students who are part-time in their final semester.

IRCC’s Guidelines on Leave provide more insight on how this may apply in practice:

D. Leave from studies

Students may be required or may wish to take leave from their studies while in Canada. For the purpose of assessing if a student is actively pursuing their studies, any leave taken from a program of studies in Canada should not exceed 150 days from the date the leave commenced and must be authorized by their DLI.

A student on leave who begins or resumes their studies within 150 days from the date the leave commenced (that is, the date the leave was granted by the institution) is considered to be actively pursuing studies during their leave. If a student does not resume their studies within 150 days, they should do either of the following:

If they do not change their status or leave Canada, they are considered non-compliant with their study permit conditions.

In cases where a student has taken multiple periods of leave in Canada during their program of study, the officer should consider the student’s reasons for the various periods of leave. If the multiple periods of leave do not appear to support the expectation that the student is making reasonable progress toward the completion of their course or program of study in the time allotted by the course or program of study, the officer may determine that the study permit holder has not fulfilled the condition to actively pursue their course or program of study.

Examples of reasons for leave include but are not limited to the following:

  • medical illness or injury
  • pregnancy
  • family emergency
  • death or serious illness of a family member
  • change in program of study within the same institution, outside a regularly scheduled break
  • dismissals or suspensions (dependent on degree of severity)
  • postponed program start date (see Deferred enrollment for more information)

E. Deferred enrollment

In exceptional circumstances, a student may be required to defer their program’s start date to the next semester. If the student defers their program start date, it should be formally approved by the DLI. In some cases, the deferral is imposed by the DLI.

If the study permit holder is in Canada at the time of deferral, and they wish to remain in Canada, they must begin their studies the following semester or within 150 days from the date the deferred enrollment is confirmed, whichever comes first. Otherwise, they should do either of the following:

Note: In all deferral cases, students should obtain an updated letter of acceptance from the DLI.

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/study-permits/assessing-conditions.html#leave

I still think there are some gaps such as deferred registration (see below) but ultimately it does give Officer’s a level of discretion. My hope is they will continue to rely on the support/guidance of DLIs when making their decisions on whether to grant an exception and issue the PGWP to students who rely on this exception.

Ongoing Challenge – Full-Time Studies Definition

There are a few issues that still remain that I think can be better addressed in new program delivery instructions.

IRCC has now clarified that full-time student status is now for ‘each academic session of the program or programs’ – replacing full-time for the program.

Full-time studies 

  • They have maintained full-time student status in Canada during each academic session of the program or programs of study they have completed and submitted as part of their post-graduation work permit application

I still find this definition problematic – for one because many schools operate on non-traditional calendars and in many cases there is both financial and career incentive to study part-time in the summer rather than full-time during the semester. I think it is not equal practice to have different sets of rules apply to international students and domestic students.

These rules may further tighten that definition. I think it is an area where more advocacy and putting the ball back into the Court of institutions (but holding institutions to higher standards) may be the best solution.

I’m seeing one of the fall outs of these instructions putting more discretion in the hands of Officers as opposed to institutions. This is one point to monitor as we move forward.

Guideline Applicability Start Date – Remedy for Recent PGWP Refusals 

The rules kick in for applications starting today, with applications received before today considered under the old rules.

Eligiblity of Rules

Client who were refused PGWPs and are still within the initial six month period of being eligible to apply under the new guidelines may want to try and submit, if they meet the other requirements.

What Should Schools and DLI’s Do

I have three initial steps for DLIs and institutions to consider how to take into account these new changes.

  1. Do an Audit of Existing Materials – Website, Print, Agents, Advertising

These changes will undoubtedly require a massive overhaul of materials. It is important, as we have seen from litigation in Nova Scotia, Ontario, and Alberta recently for schools to either take best efforts in disseminating correct information or not disseminating any at all. A half-hearted approach is probably the most harmful.

2. Consider Program Changes

Again, with the new 6 month period to apply for PGWPs schools can start getting quite creative and benefit their students with tack-on programs that could help students secure jobs shortly after obtaining PGWPs in a way they couldn’t before. I can see adding on business and experience-based learning type programs to the end of completed programs. Schools may want to look into these

3. Consider Prospective Policy Changes and Advocacy

Change usually begats change. I have heard that some schools were presumptive in trying to tell agents that they were close to getting PGWPs. That hasn’t occurred with these instructions. Yet, there may be a lot of room for schools to advocate both to the Federal and Provincial Governments for programs whose graduates are bringing major benefit to the Canadian economy and social fabric. More programs to facilitate these individuals, in areas such as theological studies, film and television, and the arts should be pursued – ideally through PNP pathways.

I also see a change not too far in the horizon regarding schools (perhaps first secondary and elementary) being limited by a quota system in the number of Letters of Acceptance they are able to submit.  This is apparently the Australian model, something worth studying as the numbers for study permits increase and refusal decisions no longer are able to withstand judicial scrutiny.

Finally, what to do about international student fraud and the lack of any regulation of education consulting. The capital outflows occurring as a result of the current fee-for-seat system and the presence of global recruiters/agents is not tenable. The system will change as soon as the political will, which in B.C. is clearly there, goes along side.

Interesting times for our international student regime!

 

Letter to My Sister (in Law): A Reflection on Male Toxicity and Male Privilege in the Profession

The below piece was inspired by a recent experience in an Inland Spousal Sponsorship interview. In a moment of empowerment, I decided to step in for the Officer and question my clients, in a manner that went beyond my ‘courtesy’ role as counsel. I reflected on the power/historical dynamics that led me to believe that I could do this, and believe that part of it was because the officer was a Filipina-Canadian woman and in the back of my mind, as a lawyer, I could speak for her or over her. I connected it to other experience in front of white decision-makers of power and recognized my parallel silence. It is a position I could not reconcile with myself and therefore I have written the below letter.

The first version I wrote (but was accidentally deleted in a WordPress saving issue) was arguably better. I think I went more in detail and hit harder. Perhaps, it was to personal and would have drawn criticism from those individuals who may have recognized themselves in the parables. I hope that in this version, I still capture that essence. I will continue trying to find back the words I wrote but in the meantime please take these words.

1024px-Sister_Sister_logo.svg

Dear Sister (in Law):

While we are not bound by blood, we are bound as siblings by our mutual decision to enter this profession. You, like me, entered to be able to pursue a profession where you would be valued for your contribution, where you could fight to promote justice, and where you could secure a better future for you and your clients.

I am writing today to apologize to you and to share a few accounts both of my privilege and the ways in which we (as a Male Bar, writ large) have not given you the space or opportunity you deserve, as our gender equals.

To those of you of colour, we have even further made difficult a journey that is already made difficult by the trauma of practicing areas that hit often too close to home or too distinct from experience.

We have created environments that have further make you feel without a place and/or we have used our own space to take away yours, our voice to silence yours. For that, we need to acknowledge that we’ve fallen far short. We need to take immediate remedial action to empower you and humble ourselves in the process.

I take personal responsibility for my own role. Looking back on the past years, I have made so many mistakes. I have participated in speaking over women colleagues in male-dominated meetings, all-consumed in the toxic male ego. I have engaged in the backroom small talk of discussing visceral appearances, and generally not being a-tuned enough to how much I was contributing to the denigration of my own sister. I cast gazes that were inappropriate, had conversations that re-enforced my own alluster. I was selfish and wrong.

Inexplicably, I have at the same time showed deference to white men in a manner where I would not have showed deference to you – and it is something I cannot explain but damn-right want to fight in myself and in others. It makes me sick to my stomach that I would allow the historical colonial role of white men in Canada, to not only silence me but then turn around, as a silenced person of colour and not take away your voice.

Meanwhile I have listened but not acted when you told me about that partner who made you do 90% of the work and would take 100% of the credit. When you have told me of clients who would email them to complain about you and who treated you as a disposable assistant rather than the capable lawyer you are. I should have knocked on the doors of patriarchy or helped you fight back. My ‘it will be okay’ simple wasn’t an okay response and was reflective of my silence and misuse of privilege.

When you told me that you received a position on a Board and that the Partner thought you were filling a ‘diversity quota’ I should have made clearer that I was on your side. Instead, I tried to justify his response.

I regret not telling the lawyers who told me that I was at an advantage because I was male and would not have babies and go on mat leave that this was not fair to my sisters who often do not choose to abandon profession but often have the decision imposed on them by the external forces of child-rearing, with little more than a “that’s your natural responsibility.” I want a child but know full well that this decision will change my partner’s life and career choices in a way it does not affect me. I can show up the next day to accolades without having to feel an announce of the pain or the prejudiced judgment of bottom-line driven employers.

I regret the times I participated with the white man in casting that wicked gaze over you – commenting on your appearance and not your last appearance in Court.  The times I saw your high heels as symbols of sex but not the band aids behind the heels as symbols of pain of needing to please in a profession with it’s priorities all wrong.

I regret not telling the powers that be that maybe they need to speak to you first before speaking to me and that my rubber stamping of their authority added to simple majority but paid lip service to you, who was truly affected by the choices they were making.  We allowed our cultures to develop into mini fraternities and boys clubs, where we feigned listening to your monologues one second, and immediately after closed the doors and laughed at you the next.

I regret not trying harder to convince media that they do not need another male talking head or that they should assume that ‘he knows’ when ‘she knows better’ and has the credentials to back it up. I should have deferred or set ultimatums where simply I was happy taking the limelight, myself. It has made you question why you have to work twice harder to get half the accolades, at a portion of the pay – something your client may never know.

How do I fix this? How do I be a true ally to you?

For one, I should no longer contribute to ‘mansplaining’ your situation or always wanting to be the head of the table, especially in your conversations.

For second, I should ask you as my sister what you want – and not assume it is protection, a father figure, a direction seeker, and that maybe I am actually the one needs all three.

For third, maybe it’s time I stop enabling the powerholders and brokers by kow-towing and pumping their tires.

I should challenge their authority, that they are no King and maybe it is time for a Queen to be given her chance to reign. In my personal life, when I see situations of inequality affecting women and women of colour, I need to raise my voice rather than sit there content in silently being served by a woman, like the experience is normal. It isn’t.

I have a lot of historical wrongs to right. My response to feeling dispossessed as an ethnic male during my high school years was to try and join the popular forces of ‘whiteness’ and ‘maleness.’ I had encounters and moments where I crossed lines I had set for myself. In law school and my early practice, I felt male dominance was just part of a normalized environment. Little did I know that it was a environment built specifically to keep women out of power  – while simultaneously undervaluing/underappreciating their work. Next year they would always say – you would get what we have, but the goalposts would always shift.

What a difference time makes. I am now in a place where I work for badass women. They are now (currently) my office manager, two out three of my Firm owner’s, my mentor, my spouse, and my mother. I have cut from my life those elements of male toxicity. I am stepping (although it is a process) outside of my perpetrator role. The events of recent show I still have a long way to go.

Sister – I hope this next generation of lawyers is your generation. I hope you take seats on our highest bench where you hold decision-making power over us, molding law with your genius and maturity.

If I ever, talk for you, walk over you, gaze at you, in a manner in which you are uncomfortable I want you to tell me. I want you to tell me when another one of my brothers does it to you as well. I want you to share with us (when you are ready) how we have failed you. Any Firm that takes such a piece as an offense or tries and dissuade you from doing so, is no home for you.

It is with sincerest apologies and hope that we can do better, as men and allies.

Sincerely,

signed

Your Brother (in Law)

 

 

 

Reasonable Apprehension of Bias in Immigration/Refugee-Related Decision Making: High Thresholds and Reticent Engagement

ignorance-arrogance-bias-15072e-1024

In this long read, I thought it would be interesting to tackle an area I am quite interested in – the legal concept of ‘reasonable apprehension of bias’ and how it applies to Federal Court decisions where counsel are raising this argument. I focus this piece on Federal Court decisions issued in 2018 (one is a FCA decision).

My early thesis is that as administrative burdens on the Government increase along with a growing demand on immigration to Canada (which subsequently will increase the requirement to removal individuals who have ‘fallen out of favour’ – either by status or admissibility), more decisions may be perceived by applicants of demonstrating bias or being grounded in biased policies.

Simultaneously, we may see a subsequent increase in counsel going after the procedural fairness of a decision, on the basis of alleged bias.

What is the current state of the law? How does this all play out?

What is a Reasonable Apprehension of Bias

The test for Reasonable Apprehension of Bias was recently restated by Justice Gagné in Alcina Rodriguez v. Canada (Citizenship and Immigration), 2018 FC  995 (CanLII):

[34]  The test to determine whether there is a reasonable apprehension of bias is established by the Supreme Court of Canada in Committee for Justice and Liberty et al. v National Energy Board et al.1976 CanLII 2 (SCC), [1978] 1 SCR 369 at page 394, and confirmed in Baker at paragraph 46:

…the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. . . . [T]hat test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”

[35]  An allegation of bias must be supported by convincing evidence and cannot be made lightly. The burden of proof is on Mr. Rodriguez, and the threshold to be met is high (Fouda v Canada (Immigration, Refugees and Citizenship)2017 FC 1176 (CanLII) at para 23). In essence, he must demonstrate that the decision-maker was closed-minded and not open to persuasion.

Emphasis added.

Another common setting out of the test of bias quotes from R v. S RD) 1997 3 SCR 484 which can also be found in Justice Brown’s decision in Kamal v. Canada (Immigration, Refugees and Citizenship), 2018 FC 480 (CanLII), at para 32. In the decision, he endorses Justice Kane’s setting of the test in Poczkodi v Canada (Immigration, Refugees and Citizenship)2017 FC 956(CanLII) at para 50:

[48]  In R v S (RD), 1997 CanLII 324 (SCC), [1997] 3 SCR 484, 151 DLR (4th) 193 [RDS], at para 113, Justices L’Heureux- Dubé and McLachlin referred to the test and noted that the threshold for a finding of real or perceived bias is high, explaining that “an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice.” The Court cautioned that allegations of bias are serious and should not be made lightly. The same principles apply to allegations against other decision makers.

As set out in Wewaykum Indian Band v Canada, 2003 SCC 45 (CanLII)[2003] 2 SCR 259recently re-iterated by Justice Strickland at para 27 in Yuan v. Canada (Citizenship and Immigration), 2018 FC 755 (CanLII),  the test is not whether there was any conscious or unconscious bias or to utilize it to fill evidentiary gaps, but to view it from the viewpoint of the objective ‘reasonable person’:

66  Finally, when parties concede that there was no actual bias, they may be suggesting that looking for real bias is simply not the relevant inquiry.  In the present case, as is most common, parties have relied on Lord Hewart C.J.’s aphorism that “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done” (The King v. Sussex Justices, Ex parte McCarthy[1924] 1 K.B. 256, at p. 259).  To put it differently, in cases where disqualification is argued, the relevant inquiry is not whether there was in fact either conscious or unconscious bias on the part of the judge, but whether a reasonable person properly informed would apprehend that there was.  In that sense, the reasonable apprehension of bias is not just a surrogate for unavailable evidence, or an evidentiary device to establish the likelihood of unconscious bias, but the manifestation of a broader preoccupation about the image of justice.  As was said by Lord Goff in Goughsupra, at p. 659, “there is an overriding public interest that there should be confidence in the integrity of the administration of justice”.

[Emphasis in original]

In Abdi v. Canada (Public Safety and Emergency Preparedness), 2018 FC 733 (CanLII), <http://canlii.ca/t/ht3wq> at para 48, Justice McDonald reminds that the threshold is extremely high:

[48]  The threshold to establish bias is high. The party alleging bias must do more than “hint” that the outcome is tainted (Turoczi v Canada (Citizenship and Immigration),2012 FC 1423 (CanLII) at paras 11-17 [Turoczi]). There must be an evidentiary foundation in support (Zundel v Citron2000 CanLII 17137 (FCA)[2000] 4 FC 225 (FCA) at para 36Southern Chiefs Organization Inc. v Dumas2016 FC 837 (CanLII) at para 46).

We also know that:

“a reasonable apprehension of bias does not arise merely because the same officer has made the decision on the different processes whereby an applicant seeks legal status in Canada.”

[IRB Legal Policy Guide – https://irb-cisr.gc.ca/en/legal-policy/legal-concepts/Documents/SpoPar11_e.pdf – citing Kouka, Serge v. M.C.I. (F.C., no. IMM-1823-06), Harrington, October 17, 2006; 2006 FC 1236.}

2018 FC Decision Citing the Reasonable Apprehension of Bias in the Context of Immigrants and Refugees

In this data set, I looked at 19 cases that directly mentioned “reasonable apprehension of bias.” Fourteen are immigration and refugees cases and one is in the context of a CSIS matter, but significantly similar so I included it.

The cases are included in numerical order, from earliest in the year to latest in the year. I acknowledge that there could be other ones that address bias under procedural fairness. In narrowing the list, some decisions where reasonable apprehension of bias were raised at earlier tribunal levels but not raised to the Federal Court, were excluded. Those cases where the Court acknowledged but did not directly address the arguments were also included.

Given the above, how did the reasonable apprehension of bias argument fare in 2018 judicial reviews related to immigration? Out of the 19 cases analyzed,  not a single ‘reasonable apprehension of bias’ argument, was altogether responsible for the granting of a judicial review. Indeed, in the large number of cases where JR was dismissed, the analysis of the failure of the argument was more robust compared to those where JR was allowed (see Analysis below).

I tried to provide a brief quasi-summary where there wasn’t a paragraph in the decision that did it clearly. Some descriptors are longer than others for that reason

I also decided to go with replicating portions of decision that addressed reasonable apprehension of bias as opposed to attempting to summarize the decision. This choice was made consciously to allow us to look at the exact wording.

[1] Malit v. Canada (Citizenship and Immigration), 2018 FC 16 (CanLII), <http://canlii.ca/t/hppb2> – McDonald J. – JR Dismissed.

The Applicant (a Filipino national) was refused a study permit as the accompanying spouse of a study permit holder on the basis of financial inadmissibility (s.39 IRPA).

On the question of whether the Officer demonstrated a reasonable apprehension of bias, Justice McDonald writes:

[18]           Although the Applicant suggests that the Officer was operating under a bias, the Applicant was not able to identify any evidence or indication on the record which would support this contention.

…….

[21]           Here the Applicant’s assertions of bias are not substantiated by any evidence. Therefore the Applicant’s bias arguments are without merit.

[2] Oyejobi v. Canada (Citizenship and Immigration), 2018 FC 107 (CanLII), <http://canlii.ca/t/hq5jv> – Ahmed J. – JR Granted.

The Applicant’s (a Nigerian national) judicial review of a  RAD decision upholding a RPD rejection of a protection claim based on sexual orientation. RPD member noticed similarities of BOC with that of another claimant. Applicant tried to have RPD member recused. Decision was refused on negative credibility. Applicant argues that there a reasonable apprehension of bias, erred credibility assessment, and failure to analyze Applicant’s claim under s.97. Justice Ahmed reclassifies the issue as whether there was a breach of procedural fairness and focuses attention on RAD’s failure to determined whether RPD followed Rule 27 of the RPD Rules by not notifying Minister.

[3] Hosseini v. Canada (Immigration, Refugees and Citizenship), 2018 FC 171 (CanLII), <http://canlii.ca/t/hqhd0> – O’Reilly J. – JR Granted.

The Applicant (an Iranian national) found inadmissible pursuant to s.34(1)(d) IRPA, re: an Iranian chemical engineer who was formerly worked for the National Iranian Oil Company Company (NIOC). Justice O’Reilly finds that the decision was procedurally unfair and in doing so does not address the Applicant’s third argument on reasonable apprehension of bias.

[5]  The issues are:

  • 1.Did the officer treat Mr Hosseini unfairly?
  • 2.Was the officer’s conclusion unreasonable?

[6]  The applicants also argued that the officer’s analysis gives rise to a reasonable apprehension of bias. In light of my rulings on the first two issues, it is unnecessary to address the question of bias.

[4] Mathurin v. Canada (Immigration, Refugees and Citizenship), 2018 FC 172 (CanLII), <http://canlii.ca/t/hqg19> – O’Reilly J. – JR Dismissed.

The Applicant (a St Lucian national) was an H&C PR applicant who had a previous refugee claim refused on credibility and also a prior H&C refusal. Her argument was that the Officer’s reason gave rise to bias in the analysis of the birth of her children in Canada (similar type argument to the seminal case of Baker). Justice O’Reilly dismisses the argument and defends the Officer’s assessment, ultimately denying the JR.

[3]  Ms Mathurin argues that the officer’s decision was unreasonable because it overlooked important evidence supporting her application. She also maintains that the officer’s reasons give rise to a reasonable apprehension of bias, in particular, the officer’s observation that Ms Mathurin had chosen to have two children in Canada while having no immigration status here. She asks me to quash the decision and order another officer to reconsider her application.

…………..

[15]  Ms Mathurin objects to the officer’s observation that she and her partner chose to have two children in Canada while having no status here. She claims that the officer’s statement, which appears twice in the reasons, is indicative of bias.

[16]  I cannot find that the officer’s statement displays bias. Reading the officer’s decision as a whole, I find that the officer, in his first statement, merely noted the amount of time Ms Mathurin had spent in Canada illegally and pointed out that she had two children here during that period of time. The second statement appears in the officer’s summary of the circumstances in which Ms Mathurin and her children have found themselves. A fair reading of the officer’s statements does not support a reasonable apprehension of bias. Rather, the officer’s overall analysis reflects a genuine concern for the family and empathy for the choices they now face.

[5] Vo v. Canada (Citizenship and Immigration), 2018 FC 230 (CanLII), <http://canlii.ca/t/hr4gv> – Diner J.  – JR Dismissed.

The Applicant, a citizen of Vietnam, sought judicial review of an IAD decision which dismissed her sponsorship as res judicata, specifically due to issue estoppel. This case is interesting as the Applicant did not raise this as part of her procedural fairness argument to the IAD, but Justice Diner still engaged with a potential analysis. He writes:

[22]  Further, while Ms. Vo indeed argued certain fairness concerns before the IAD, she did not submit that the immigration officer’s refusal raised a reasonable apprehension of bias. Generally, a reviewing court will decline to consider issues raised for the first time on judicial review (see Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association2011 SCC 61 (CanLII) at paras 22-23).

[23]  Even putting aside this principle, as well as the fact that the second immigration officer’s refusal is not the subject of this judicial review, there is no merit to Ms. Vo’s submission. Allegations of bias are serious and must be supported by concrete evidence (Panov v Canada (Citizenship and Immigration)2015 FC 716 (CanLII) at para 20). It was open to the second immigration officer to explore the aspects of Ms. Vo’s application that had raised credibility concerns in prior determinations, and which continued to raise concerns. I am satisfied that an informed person, viewing the matter realistically and practically, would not find that such questioning gave rise to a reasonable apprehension of bias(Committee for Justice and Liberty et al v National Energy Board et al1976 CanLII 2 (SCC), [1978] 1 SCR 369 (SCC)at 394).

[24]  Specifically with respect to the “trick question” allegation, I agree with the Respondent that any bias argument fails when that exchange is looked at in its entirety:

Q: What did you and the SPR decide to do after the appeal was dismissed? We were depressed and sad for not being allowed to be together. So we decided to give birth to a child. Q: Why? I think that having a baby is evidence of our real marriage. Q: So you had a baby to show that your marriage was real? Yes.

[Emphasis added]

[6] Ahmed v. Canada (Citizenship and Immigration), 2018 FC 353 (CanLII), <http://canlii.ca/t/hrfdr> – Strickland J. – JR Granted.

The Applicant (a Pakistani National) sought judicial review of a danger opinion finding pursuant to s.115(2)(a).  In the decision, the Risk Assessment Unit found some of the Applicant’s documentation submitted fraudulent. As part of the process the RAU approached Pakistani authorities for assistance relating to som e of the documentation The Applicant sought to cross-examine the RAU officer but not was not provided that opportunity.

The JR was allowed but Justice Strickland found both that the Applicant did not establish the existence of a reasonable apprehension of bias in the Delegate exceeding his or her jurisdiction but also that a reasonable apprehension of bias could have occured in the Delegate’s decision to ignore the bias allegation of the Applicant. Justice Strickland ultimately says that determining this is not necessary in this matter.

[62]  As I have found above, there is no merit to the allegation that the Delegate exceeded his or her jurisdiction and, in my view, it was open to the Delegate to seek to have the new evidence submitted by the Applicant in support of his alleged new risk verified for authenticity.  Doing so does not support an allegation of bias.  Determining if a reasonable apprehension of bias exists involves asking “what would an informed person, viewing the matter realistically and practically- and having thought the matter through” would conclude that bias exists (Committee for Justice & Liberty v Canada (National Energy Board), 1976 CanLII 2 (SCC)[1978] 1 SCR 369 at pp 394-395).  Further, the threshold for finding a reasonable apprehension of bias is high and the onus lies with the person alleging its existence to rebut the presumption of impartiality (Zündel v Citron2000 CanLII 17137 (FCA)[2000] 4 FC 225 at para 36, citing R v S (RD), [1997] 2 SCR 484).  In my view, the Applicant has not established the existence of a reasonable apprehension of bias in these circumstances.

[63]  However, as the allegation of bias was made by the Applicant the Delegate could not simply choose to ignore it (Bongwalanga v Canada (Minister of Citizenship and Immigration)2004 FC 352 (CanLII) at paras 15-16; see also Bajwa v Veterinary Medical Assn (British Columbia), 2011 BCCA 265 (CanLII) at paras 23-24, citing Tranchemontagne v Ontario (Director, Disability Support Program), 2006 SCC 14 (CanLII)).  Accordingly, had I not been able to address this issue on the merits, the failure to address the issue could also have been a reviewable error.

[64]  Given my findings above it is not necessary for me to also consider the reasonableness of the Delegate’s findings on risk.

[7] I.P.P. v. Canada (Citizenship and Immigration), 2018 FC 123 (CanLII), <http://canlii.ca/t/hrjrg> – Russell J. – JR Dismissed.

This is a very length decision relating to an RPD member’s reported ‘zero percent acceptance rate’ of refugee claims and an application for recusal on the basis of a reasonable apprehension of bias and Professor Rehaag’s report. The member refused.

The Applicants (an extended family of 24 Mexican nationals) sought judicial review on the basis that the reasonable apprehension of bias in the RPD proceedings violated s.7 Charter and the administrative law principles of natural justice.

In Russel J’s decision (with over 60 references to the term ‘reasonable apprehension to bias’), he finds that there is no s.7 Charter violation or administrative breach of procedural fairness.

[235]  In my view, a reading of the transcript makes it clear that the Applicants really became concerned about the Member after learning about his acceptance rate in news articles and otherwise. This source of information is all negative. It would naturally cause the Applicants great concern, and no doubt could give rise to psychological and physical symptoms. But this is not something the Member has done or induced in the Applicants. It comes from outside the RPD. In my view, there is nothing in the hearing process itself, and the Member’s conduct throughout that process, that would cause an informed person, viewing the matter realistically and practically, to detect a reasonable apprehension of bias. What is more, I think that most of the allegations and evidence cited by the Applicants in this review to support their case for a reasonable apprehension of bias, even when they are accurate, have little substance to them and would not cause a fully-informed objective observer to detect bias on a balance of probabilities.

…..

[277]  In my view, there is insufficient evidence, either from the proceedings themselves, or from witnesses commenting upon the Member’s general performance at the RPD, to support a reasonable apprehension of bias finding. From the Applicants’ perspectives, the Member was predisposed to decide against them. From the Member’s perspective, he was doing his duty:

I am bound by a Code of Conduct to decide cases based on the facts and the law before me and each case turns on its own merit…. All members are bound with the same case law and generally use the same standard documentary evidence packages for each country. Each of us are bound by the same Code of Conduct that we swore an oath to or affirmed, that we would decide cases properly on the facts and the law before us.

[8] Kamal v. Canada (Immigration, Refugees and Citizenship), 2018 FC 480 (CanLII), <http://canlii.ca/t/hrzn6> – Brown J. – JR Dismissed.

In Kamal, the Applicant (Bangladeshi national) sought to have an alleged expert to testify and to rely on a Response to Information Request [RIR] document, not earlier tendered (para 24) in relation to a s.34 terrorism case. The Immigration Division allowed a lengthy report authored by the alleged expert but dismissed the request for the proposed testimony. The Applicant argued that the ID member recuse herself on the ground of bias for ‘prejudging the case’ by disagreeing with the Applicant’s interpretation of the RIR (para 30). The ID found the allegation baseless and dismissed the recusal request.

[33]  Before me, the Applicant specifically alleged not only apprehension of bias but actual bias:

This finding by the ID is tainted by bias as it disallows the Applicant from rebutting the Minister’s case against him; indeed it is a grave breach of natural justice as by refusing [name of the alleged expert] to testify on this basis, the ID is effectively breaching the Applicant’s right to put forward his case.

[34]  In my respectful view, the allegations of apprehended bias and actual bias are unsupported. The ID made an evidentiary ruling in the course of an inadmissibility hearing. The Applicant requested relief from his failure to follow the rules established by the ID for the admission of oral evidence. It was open on the record for the ID to decline to abridge time; the ID not only considered the lateness of the filing but also considered the substance of the proposed testimony. The ID considered the Applicant’s newly-discovered RIR, which the Applicant used to support the request for oral testimony. The ID noted that the Applicant’s discovery of the RIR was extremely late in the day (the night before the hearing). Further, the ID found its lateness was inadequately explained.

[9] Abdi v. Canada (Public Safety and Emergency Preparedness), 2018 FC 733 (CanLII), <http://canlii.ca/t/ht3wq> – McDonald J. – JR Granted. 

In one of the most important FC cases in 2018 that has inspired a greater conversation about children in care accessing citizenship. Justice McDonald addresses the Applicant’s (a Somali national) argument that the Minister’s Delegate (MD) redetermination process involved bias. Justice McDonald dismisses this argument writing:

[49]  Here, Mr. Abdi’s arguments are largely speculative, pointing only to perceived associations between the MD and CBSA officials. While the MD and the CBSA officials share a common employer, there is no evidence that the MD consulted with others before rendering her decision.

[50]  As noted above, the decision by CBSA to arrest Mr. Abdi is not at issue in this judicial review. Further, the actions of CBSA in taking Mr. Abdi into custody, without more, does not provide an objective indication of bias, sufficient to meet the high threshold set out in Committee for Justice and Liberty.

[51]  I conclude that there is insufficient evidence to support a reasonable apprehension of bias finding.

[10] Bains v. Canada (Citizenship and Immigration), 2018 FC 740 (CanLII), <http://canlii.ca/t/ht2c1> – Boswell J. – JR Dismissed.

This is a JR involving a Canadian sponsor and his Indian-national spouse. There was not much discussion in the matter about the law or application of the reasonable apprehension of bias test. The Applicant’s argument was that the IAD refusal of the spousal sponsorship was based on a moral judgment of hte Applicant as a sex offender. Boswell J writes in response to this allegation:

[20]  As to the Applicant’s allegation that the IAD showed bias based on a moral judgment of him being a sex offender, this too is devoid of merit. The Applicant provided no legal argument as to how the test for a reasonable apprehension of bias is met in this case. Just because the IAD asked itself why Ms. Bains and her family would agree to her marriage with a sexual offender does not, in my view, show bias of any kind.


[11] Yuan v. Canada (Citizenship and Immigration), 2018 FC 755 (CanLII),
<http://canlii.ca/t/ht3x3 – Strickland J. – JR Granted.

This very interesting case (that I quoted in the outset) involves an argument that the Member demonstrated a reasonable apprehension of bias by not asking the same questions at a second de novo hearing that had been asked by the same Member at the first hearing, which was tainted by interpretation issues. The case involves an Applicant (Chinese national) who made a refugee-claim based on her practice of Falun Gong that was found manifestly unfounded.

[28]  It is clear from the transcript of the de novo hearing that the Applicant herself was concerned that her poor performance in the first hearing would impact the decision to be rendered after the de novo hearing. However, the test for a reasonable apprehension of bias is not to be utilized by the “very sensitive conscience”.  Understandably, the Applicant would fall into that category in these circumstances, thus the test is not met simply on the basis of her concern.

[29]  Moreover, it was open to the Member to choose what questions he wished to put to the Applicant.  As he pointed out, it was a de novo hearing, accordingly, he was not compelled to try to recreate the first hearing.  Further, there is jurisprudence that suggests that religious knowledge cannot be equated with faith and that the quality and quantity of religious knowledge to prove faith is unverifiable (Zhang v Canada (Citizenship and Immigration)2012 FC 503(CanLII) at para 16). Put otherwise, religious knowledge cannot necessarily be equated to the genuineness of a claimant’s beliefs. While a certain level of knowledge may be expected, the sincerity of the belief is what is legally relevant (Ren v Canada (Citizenship and Immigration), 2015 FC 1402 (CanLII) at para 18Liang v Canada (Citizenship and Immigration), 2017 FC 1020 (CanLII) at para 18.  Accordingly, the Member was not compelled to test this or to test it in the manner that the Applicant’s counsel would prefer.

[30]  That said, I acknowledge that there could be a perception that by not asking the Applicant the same questions as to her Falun Gong knowledge the Member was, in effect, precluding the Applicant the opportunity of the “redo” that she had sought and been denied at the close of the Member’s questions in the first hearing.  I would also point out, however, that when the Member did attempt to ask a different question about her religious knowledge – which of the five exercises is focused on getting rid of karma and jealousy – counsel objected to the question on the basis that it was misleading because there was no one exercise that does this and stated that, in his view, this was a trick question.  The Applicant then duly answered that it was necessary to practice all five exercises to achieve this.

[31]  With respect to the Applicant’s submission that the Member focused on peripheral matters rather than the Applicant’s “Falun Gong identity” (Rasheed v Canada (Minister of Citizenship and Immigration) 2004 FC 587 (CanLII)(“Rasheed”), I note that the Member made a number of negative credibly findings.  In my view, even if one or all of them were unreasonable, this is demonstrative of reviewable error, not bias.  Further, in Kozak v Canada (MCI), 2006 FCA 124 (CanLII), the Federal Court of Appeal stated that the legal notion of bias also connotes circumstances that give rise to a belief by a reasonable and informed observer that the decision-maker has been influenced by some extraneous or improper consideration (at para 57).  Based on the record and the decision, I am not persuaded that in this matter the Member based his decision on improper considerations.  Rather, the Applicant would prefer that the Member had focused on other evidence.

[32]  In conclusion, viewing the matter in whole, I am not persuaded that the Applicant has established that an informed person, viewing the matter realistically and practically and having thought the matter through, would think that it is more likely than not that the Member, whether consciously or unconsciously, would or did not decide fairly and therefore that he erred by failing to recuse himself.

[12] Ching v. Canada (Immigration, Refugees and Citizenship), 2018 FC 839 (CanLII), <http://canlii.ca/t/htl6j> – Diner J. – JR Granted.

In Ching, the Applicant (a  Chinese national) had sought recusal of the IAD member. The Applicant has had a decade long series of immigration proceedings, including the pursuit of a serious criminality finding against him. Justice Diner addresses the reasonable apprehension of bias argument in the last section of his decision after setting aside the appeal and remitting the matter. However, he had some harsh words for counsel’s raising of this ground.

[192]  Mr. Ching has a variety of ongoing administrative and civil proceedings, which overlap in many respects.  His litigation history also includes allegations of bias against the member who decided the IAD’s Inadmissibility Decision.  As a result, I will comment on his allegations of bias made in these Applications, with respect to the member who issued the IAD’s Refusal to Reconsider, for Mr. Ching’s future benefit.

[193]  Mr. Ching’s Amended Statement of Claim in his civil action impugns certain acts and omissions of the RCMP Liaison Office in China, and pleads that it conspired with the People’s Republic of China’s Ministry of Public Security in an attempt to deliver Mr. Ching to torture and unlawful imprisonment.  On February 6, 2017, during the reconsideration hearing, the IAD member disclosed to the parties that he was a former member of the RCMP.  The relevant excerpt of the transcript is as follows:

[transcript omitted for length]

[195]  Mr. Ching argued that the test set out in Committee for Justice and Liberty et al v National Energy Board et al1976 CanLII 2 (SCC), [1978] 1 SCR 369 [Committee for Justice] was met, namely that “an informed person, viewing the matter realistically and practically — and having thought the matter through”, would conclude it “more likely than not that [the member], whether consciously or unconsciously, would not decide fairly” (at 394).  Mr. Ching also submitted that actual bias need not be established, only a reasonable apprehension of bias, relying on R v S (RD)1997 CanLII 324 (SCC), [1997] 3 SCR 484 (at para 109) [RDS].

[196]  Mr. Ching’s position is untenable.  I remind him that allegations of bias must not be undertaken lightly and that the threshold for a finding of bias is high (RDS at para 113).  The member’s former membership in the RCMP, on its own, does not raise a reasonable apprehension of bias with respect to the IAD’s Refusal to Reconsider.  Further, Mr. Ching did not raise his bias concerns at the earliest reasonable opportunity, as required by the jurisprudence (see AB v Canada (Citizenship and Immigration)2016 FC 1385 (CanLII) at para 139).

[13] Nassif v. Canada (Citizenship and Immigration), 2018 FC 873 (CanLII), <http://canlii.ca/t/hv2zs> – Annis J. – JR Dismissed.

In Nassif, the Applicant (presumably, Lebanese nationals) argued that there was a reasonable apprehension of bias demonstrated by the Officer questioning her right to enter Canada that transferred into the dismissal of the appeal of the removal order. Annis J refused this argument as it was not raised in the IAD appeal:

[23]  The applicant claims that the immigration officer demonstrated bias upon her arrival at the Montréal International Airport on May 3, 2014, by questioning her right to enter Canada, which was subsequently reflected in the officer’s decision to dismiss the appeal of the removal order.

[24]  There is no evidence indicating that the applicant or her counsel raised an apprehension of bias during the hearing before the IAD. The Court agrees with the respondent that the applicant is prohibited from raising this argument in the judicial review.

[14] Khan v. Canada (Public Safety and Emergency Preparedness), 2018 FC 881 (CanLII), <http://canlii.ca/t/htsjd> – Lafrenière J. – JR Dismissed.

In Khan, the Applicant’s vacation of convention refugee status was allowed by the RPD. The Applicant requested that the RPD member recuse themselves arose in the context of a series of postponement delays. I have reproduced paragraphs 14 – 21 of the decision below as they adequately set out what occur.

[14]  The proceedings before the RPD were delayed by several postponements. The hearing scheduled for November 2014 was postponed after the Applicant contested the validity of documents submitted by the Minister and he presented documents that shed doubt as to whether he was Arshad Iqbal.

[15]  Another hearing was scheduled for April 30, 2015. Three days before the hearing, counsel for the Applicant requested a postponement on the grounds that he was not available on that date and that the Applicant’s medical condition did not allow him to prepare for the hearing. A note from a medical doctor in British Columbia was produced in support of the request. A postponement was granted by the RPD. On April 29, 2015, the RPD received further correspondence from counsel for the Applicant indicating that the Applicant’s health problems were more serious than initially thought. Counsel indicated that a medical opinion on this issue would be sent, but nothing was ever submitted. The hearing was rescheduled for October 26, 2017, with two months’ notice to the parties.

[16]  Two days before the rescheduled hearing, counsel for the Applicant sought another postponement on the basis that his client was in a “psychological crisis” and unable to give instructions. The Minister objected to the request given the lack of proof supporting the Applicant’s condition.

[17]  At the hearing, counsel for the Applicant called two witnesses in support of his allegation that the Applicant was in Vancouver and unable to proceed for medical reasons. The Applicant’s wife and a friend, who was a pharmacist in Pakistan, testified that they visited the Applicant in September 2017 and that, during the visit, the Applicant was agitated, talking nonsense, paranoid and constantly repeating that people want to kill him. Both witnesses testified that the Applicant was taking medication; however, neither knew what medication had been prescribed to him. Both witnesses claimed that they did not know the Applicant’s address or phone number, and were only able to get in touch with him through an “Indian guy” who lives in Vancouver. The RPD found the two witnesses not to be credible and, in the absence of evidence of incapacity of the Applicant or other impediment to attend the hearing, rejected the request for postponement. Detailed reasons were provided orally at the hearing and are set out in paragraphs 20 to 24 of the Decision.

[18]  Counsel for the Applicant then made another request for a postponement on the grounds that he was not ready to proceed. Counsel stated that he had only prepared to request a postponement and had not prepared the case itself. According to counsel, he had three witnesses to call. The RPD denied the postponement request as counsel had had ample time to prepare his case and also declined the RPD’s offer to have the witnesses testify by phone.

[19]  Counsel for the Applicant then asked the RPD member to recuse herself from the case, arguing that she had acted in an “extremely belligerent fashion” towards him. Counsel claimed that the member constantly interrupted him in an impolite fashion, did not listen well to the witnesses, and did not act fairly. Counsel further accused the RPD member of snapping at him and behaving in an impolite fashion towards him in the past.

[20]  Applying the test for bias set out in Committee for Justice and Liberty et al v National Energy Board et al, [1978] 1 SCR 3691976 CanLII 2 (SCC), the RPD rejected the recusal motion, finding that the recusal request was arbitrary and not credibly grounded. The hearing subsequently proceeded, with no witnesses being called by the parties.

[21]  As reflected earlier, the RPD allowed the application of the Minister to vacate the refugee protection that had been conferred to the Applicant by the CRDD and to exclude him from refugee status under article 1Fb) of the Convention.

Counsel argued that the RPD displayed favouritism to the Minister causing the whole proceeding to be unfair, and rejecting all of the Applicant’s evidence for no reason (para 34).

Justice Lafrenière dismisses the reasonable apprehension of bias argument:

[36]  A review of the hearing transcript reveals that the RPD member did not show any bias towards the Applicant or his counsel or any predisposition on any issues. To the contrary, the RPD member was professional and courteous and exhibited great patience with Applicant’s counsel. Although she admonished Applicant’s counsel on occasion, her interventions were warranted given that he repeatedly made assertions, without evidence. I am satisfied that the RPD member conducted the proceeding in a fair, impartial and judicious manner.

[37]  Any informed person viewing the matter would not conclude there was a reasonable apprehension of bias from the RPD member. The Court reminds the Applicant that an allegation of bias against a tribunal is serious and cannot be invoked solely because the Applicant disagrees with the RPD’s decision.

[15] Gebreyesus v. Canada (Citizenship and Immigration), 2018 FC 966 (CanLII), <http://canlii.ca/t/hvd9h> – Zinn J. – JR Dismissed.

The Applicants (husband and wife of respective Eritrean and Ethiopian nationality) sought JR of a negative RAD decision which upheld a negative RPD finding.

Counsel argued that the Panel member was alleged to have made an inaccurate reference to the Applicant’s Ethiopian citizenship and allowed an adjournment to allow the Minister to intervene leading to a reasonable apprehension of bias. The RPD then decided that the Applicant was excluded by Article 1E of the Refugee Convention. The RAD dismissed the appeal finding there was no reasonable apprehension of bias.

Zinn J. addressed the RPD’s actions as follows, without directly addressing the apprehension of bias but upholding the reasonableness of the decision:

[22]  In my view, the RPD acted in accordance with the Rules and there is nothing in its conduct to support the allegation that it had made a determination that Article 1E applied.  The RPD by way of its first letter had invited the Minister to address the exclusion issue only six days before the hearing.  When new evidence emerged in the hearing it was adjourned, pursuant to Rule 27, in order to update the Minister.  The panel did not take any position or make any findings and it arguably had an obligation to update the Minister, especially when as here the first notice was given so close to the hearing and the Minister had not yet responded.

[23]  Furthermore, when the questionable documents came to light, and the RPD concluded that the Minister’s participation might be of assistance, it had a statutory obligation to advise the Minister as set out in Sub Rule 27(2) of the Rules.

[16] Scott v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 178 (CanLII), <http://canlii.ca/t/hvdcb>  – Gleason J.A – Appeal Dismissed.

Self-representative argued that Justice Roy’s dismissal of an extension of time JR for was biased due to the fact that he formerly served as a government lawyer prior to appointment to bench (para 1). Justice Gleason found there was no reasonable apprehension of bias. She writes:

[3]  There is no indication that Justice Roy was previously involved in any matter involving the appellant and the mere fact that he held the positions as outlined in the appellant’s material is insufficient to establish a reasonable apprehension of bias, see, for example, Wewaykum Indian Band v. Canada2003 SCC 45 (CanLII)[2003] 2 S.C.R. 259 (Wewaykum)at paras. 76, 81-85; Amos v. Canada2017 FCA 213 (CanLII)2017 FCA 213 (Amos) at paras. 18-22. Neither his past functions as General Counsel in the Criminal Law Policy Section at the Department of Justice nor as Deputy Secretary to the Clerk of the Privy Council and National Security Advisor to the former Prime Minister required Justice Roy to have recused himself from deciding the appellant’s motion.

[4]  Those who wish to disqualify a judge bear a heavy onus in light of the presumption of impartiality and must prove that the facts are such that an informed person, viewing the matter realistically and practically and having thought the matter through, would conclude that it is likely that the judge would not decide the case fairly: Committee for Justice and Liberty v. Canada (National Energy Board)1976 CanLII 2 (SCC)[1978] 1 S.C.R. 369 at p. 394, (1976) 9 N.R. 115.

[5]  No such conclusion can be drawn in this case as there is no evidence or even any suggestion that Justice Roy was in any way involved in the appellant’s complaint against CSIS. As we held in Amos, absent such involvement, prior employment is insufficient to rebut the presumption of impartiality. In addition, as in Wewaykum, the passage of time militates strongly against a finding of bias in this case. Thus, an informed person, having thought the matter through and viewing it realistically, would not conclude that there was a reasonable apprehension that Justice Roy was biased.

[17] Alcina Rodriguez v. Canada (Citizenship and Immigration), 2018 FC 995 (CanLII), <http://canlii.ca/t/hvmqq> – Gagné J – JR Dismissed.

This case involved the JR of the IAD’s refusal of a Cuban national’s spousal sponsorship. The context of this reasonable apprehension of bias seemed a little far-fetched and convoluted with a reasonableness and procedural fairness argument. As set out in the decision:

[33]  Mr. Rodriguez submits that the IAD gave rise to a reasonable apprehension of bias:

  1. By criticizing the fact that he was challenging the ID’s finding of misrepresentation;
  2. By indicating that the new evidence could have been presented to the ID and to the Superior Court, whereas the IAD hearing is a de novo hearing;
  3. By indicating to the minister’s counsel that there was no need to cross-examine him, an indication that its decision had already been made;
  4. By displaying animosity towards him through irrelevant statements;
  5. By misinterpreting his current spouse’s testimony;
  6. By minimizing his efforts to find employment and by discriminating against his status as a [translation] “homemaker”; and
  7. By citing the fact that he frequently goes out dancing to minimize the effects of his back pain.

[54]  Just because the IAD interprets the evidence in an unfavourable manner for Mr. Rodriguez does not mean that the IAD is biased.

[61]  Therefore, I am of the view that “an informed person, viewing the matter realistically and practically—and having thought the matter through—” would not conclude that there is a risk of bias on the part of the IAD in Mr. Rodriguez’s case.

[18] Lakatos v. Canada (Citizenship and Immigration), 2018 FC 1061 (CanLII), <http://canlii.ca/t/hvx28 – Southcott J.  – JR Dismissed.

In Laktatos,  the RPD refused an argument from a family of Hungarian Romas. The Applicants argued that their discrimination and racism amounting to persecution. The Applicants objected to the RPD’s questioning of the adult female Applicant. Southcott J writes:

[2]  As explained in greater detail below, this application is dismissed, because I have found that the RPD did not demonstrate conduct giving rise to a reasonable apprehension of bias, and the Applicants’ arguments have not established that the Decision is substantively unreasonable.

[7]  They now apply for judicial review of this decision under section 72(1) of the IRPA. They submit that the decision is tainted by a reasonable apprehension of bias, that it breaches their parents’ Charter-protected right to parental decision-making, and that the immigration officer’s assessment of their best interests is unreasonable.

[16]  Portions of the Member’s questioning and his exchange with counsel, which are raised by the Applicants in support of their bias allegation, demonstrate that the Member was sceptical about components of the Applicants’ assertions. The Member questioned the assertion that the homeless are permitted starve to death in Hungary and sought support for this assertion in the country condition documentation. The Member also explained that he was having difficulty with the Applicants’ allegation that a Hungarian physician had refused to prescribe appropriate medication for their child, as the Applicants had not presented evidence to support the diagnosis that they alleged required the medication. Neither area of questioning demonstrates that the Member was not considering the Applicants’ claims fairly.

[17]  At the hearing of this application, the Applicants’ counsel raised concern about how the Member’s questioning affected Ms. Horvath’s ability to give her evidence. However, as the Respondent points out, the Applicants have not filed affidavit evidence from Ms. Horvath in support of this argument.

The appellant alleges that the Federal Court’s decision should be set aside because she claims there is a reasonable apprehension that Justice Roy was biased in light of the roles he held as a government lawyer prior to his appointment to the bench.

[19] Jani v. Canada (Citizenship and Immigration), 2018 FC 1229 (CanLII), <http://canlii.ca/t/hwjqk> – Norris J. – JR Dismissed.

In Jani, the Applicants (a Canadian sponsor) argued that the H&C officer demonstrated bias in not understanding the situation relating to the Indian national children he was trying to sponsored that were barred under R.117(9)(d) IRPR. Norris J. dismisses this argument justifying that it was a different officer who conducted the officer and who made the decision [which as a side note, although not discussed in the decision: is not a breach of the procedural fairness concept of ‘who hears, decides‘]. Norris J writes:

[28]  The applicants rely on the record of the interview on March 23, 2017, and their father’s affidavit to support their submission that the decision denying their H&C applications is tainted by a reasonable apprehension of bias.  Mr. Jani states that during the interview the officer’s “manner and tone of questioning was quite hostile, as if she did not understand our situation at all.”  He felt the officer was critical of him for not having discussed a potential move to Canada and separation from their mother with Kshitij or Darshith.  Mr. Jani was of the view that the officer was biased towards himself and Ms. Pasla.

[29]  There is a simple answer to the applicants’ submission.  The officer who conducted the interview is not the officer who made the decision.  The case had been reassigned in the interim. The officer who conducted the interview asked Mr. Jani and Ms. Pasla a number of direct questions about their relationship and the parentage of the children, among other things.  Given the unusual circumstances of this case, it was only fair for her to put her concerns squarely to Mr. Jani and Ms. Pasla and to give them an opportunity to address them before a decision was made.  But even if there were a reasonable basis to conclude that the officer who conducted the interview did not approach the applications with an open mind, something I need not decide, there is no basis whatsoever to conclude that the officer who made the decision was influenced improperly by the views of the officer who conducted the interview.

Analysis

Of the 19 decisions (18 FC and 1 FCA),  judicial review was granted in 6 cases. In most of the 13 cases where judicial review was dimissed, the Federal Court (and FCA panel of) judges took quite a bit of care in establishing the contours of the law and the high thresholds. In many cases, an ardent defense of the system and the decision-makers rationale is carefully laid out. The same cannot be said for the cases where JR was granted. This was the case even in the reviewed decision of Justice Ahmed in Oyejobi, a judge who rarely minces words when analyzing the actions of decision-makers. Judges who granted JR preferred to overturn the decision on other basis, stating there was no need to engage with the argument.

My feeling is the ‘reasonable apprehension of bias’ not only is viewed as a case-specific procedural fairness issue but one that undermines the rule of law. As such, judges prefer not to give off the impression that there are potential systematic problems. As such, finding other procedural fairness faults or the decision-making unreasonable, allows focusing on safer, calmer waters.

Yet, with upward demands, should the Federal Court more actively engage with the concept in cases where it is successful, so as to ensure that there is not a chill created in raising the argument.  Where the Federal Court so clearly steps in the shoes of the decision-maker when upholding the lack of bias in the system, does that encourage challenging voices to hold back for fear of being ostracized. Is that even the role of the FC on judicial review? Should they simply keep their assessment short and thrift where the threshold of bias clearly not met and avoid a dicta defense?

It could also be very well that the cases where it was part of the successful argument were settled by the Department of Justice (my colleague Raj Sharma shared on example where he presumes this may have happened).

From my perspective, I do hope 2019 brings a few cases where the Federal Court utilizes reasonable apprehension of bias cases (even where the JR may have been granted on different grounds) to heed caution to decision-makers that a reasonable person may begin to formulate concerns with the decision-maker bias, especially the oft-misunderstood concept of unconscious bias. Counsel should not also be dissuaded by the high-bar or the fear of being criticized, for putting together well-though out criticisms of the structure of immigration-decision making that it inherently biased. I do see a room for the argument – even if we never have another Baker-like decision that spells out the bias so clearly and unequivocally.

Moving forward, this piece is still a work in progress. I hope to compare other years and look at other decisions where a reasonable apprehension of bias was found and to see if I track any historical trends. If anyone is interested in this project, please message me!

IRCC Clarifies Actively-Pursuing Studies Requirement – January 2019 Update

On 7 January 2019, IRCC updated their study permit program instructions to include  more clarity on the actively pursuing studies requirement. See link here: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/study-permits/assessing-conditions.html#completion-courses

There’s a lot to unpack but here’s a few points worth noting:

Discretion to IRCC – re: Institutional Changes

It is not uncommon for international students to change institutions a number of times during their studies. These instructions clarify that this can be examined by an Officer when determining compliance. The instructions write:

However, to assess if a student who has changed institutions or programs of study a number of times should be considered to be actively pursuing their studies, the officer should consider the student’s reasons for the changes. In cases where multiple program or institutional changes do not appear to support the expectation that the student is making reasonable progress toward the completion of a Canadian credential, the officer may determine that the study permit holder has not fulfilled their study permit condition to actively pursue their course or program of study.

150-Day Deadline for Program Changes, Leave, Deferral, and School Closures

A 150-day deadline has been set in these instructions for individuals seeking to resume studies after previous studies completed, leave, deferral of studies, and school closures.

The instruction in those cases is to change to visitor status/worker status or else leave Canada.

One thing missing in all of this is a formal way to invalidate study permits. Per R.222, the application for a visitor record does not do this (as much is also repeated in section G. Change of Status in the instructions.

Invalidity

  •  (1) A study permit becomes invalid upon the first to occur of the following days:

    • (a) the day that is 90 days after the day on which the permit holder completes their studies,

    • (b) the day on which a removal order made against the permit holder becomes enforceable, or

    • (c) the day on which the permit expires.

  • Marginal note:Exception

    (2) Paragraph (1)(a) does not apply to

    • (a) a person described in any of paragraphs 300(2)(a) to (i); or

    • (b) a family member of a foreign national who resides in Canada and is described in any of paragraphs 215(2)(a) to (i).

  • SOR/2014-14, s. 16.

Evidence of Compliance 

One of my previous concerns with the actively-pursuing studies requirement and the new email

Examples of evidence that officers may request include but are not limited to the following:

  • official document from the institution confirming enrolment status
  • official document from the institution confirming the reason for leave and the date of approval
  • official document from the institution confirming the date the student formally withdrew from an institution or program of study
  • official document from the institution confirming the date the student was suspended or dismissed
  • official document from the institution confirming the date the student ceased studying
  • current and previous transcripts
  • character references (such as a note from a professor)
  • note from a medical practitioner certifying the medical need and length of leave required
  • documentation or letter attesting that the school has ceased operations and is no longer offering courses or programs of study
  • any additional and relevant documents, at the discretion of the officer

Clarifying the Consequences of Non-Compliance

I am glad IRCC has clarified the consequences of non-compliance. The instructions state

Non-compliance with study permit conditions may result in enforcement action; that is, an exclusion order can be issued for non-compliance, per subparagraph R228(1)(c)(v).

Non-compliance with study permit conditions or engaging in unauthorized work or study may also negatively affect future applications that are made under the IRPA and IRPR. For example, a subsequent study permit or work permit may not be issued until a period of 6 months has passed, since the cessation of the unauthorized work or study or failure to comply with a condition, per section R221 and subsection R200(3).

The first step to curbing non-compliance is providing clear knowledge of the consequences of violations.

Clarifying Exemptions

Given the lay challenges of tracing the legislation, it is useful that IRCC has now clearly laid out the exemptions.

In accordance with subsection R220.1(3), the following people are exempt from the study permit conditions under subsection R220.1(1):

  • a person in Canada who has made a refugee claim that has not yet been determined by the Refugee Protection Division as well as that person’s family members
  • a person in Canada on whom refugee protection has been conferred and their family members
  • a person who is a member of the Convention refugees abroad class or a humanitarian protected persons abroad class and their family members
  • a properly accredited diplomat; consular officer; representative or official of a country other than Canada, of the United Nations or any of its agencies or of any intergovernmental organization of which Canada is a member; the members of the suite of such a person; and the family members of such a person
  • a member of the armed forces of a country that is a designated state for the purposes of the Visiting Forces Act, including a person who has been designated as a civilian component of that visiting force under paragraph 4(c) of that Act, and their family members
  • a person who holds a study permit and has become temporarily destitute through circumstances beyond their control and beyond the control of any person on whom that person is dependent for the financial support to complete their term of study
  • a person whose study in Canada is under an agreement or arrangement between Canada and another country that provides for reciprocity of student exchange programs
  • a person who works in Canada as an officer of the United States Immigration and Naturalization Service or of United States Customs carrying out pre-inspection duties, as an American member of the International Joint Commission or as a United States grain inspector, and their family members
  • a United States Government official in possession of an official United States passport who is assigned to a temporary posting in Canada and their family members
  • a family member of a foreign national who resides in Canada and is described as any of the following
    • a person who holds a study permit
    • a person who holds a work permit
    • a person who holds a temporary resident permit issued under subsection A24(1) that is valid for at least 6 months
    • a person who is subject to an unenforceable removal order
    • a person who is a member of the armed forces of a country that is a designated state for the purposes of the Visiting Forces Act, including a person who has been designated as a civilian component of those armed forces
    • a person who is an officer of a foreign government sent, under an exchange agreement between Canada and one or more countries, to take up duties with a federal or provincial agency
    • a participant in sports activities or events in Canada either as an individual participant or as a member of a foreign-based team or Canadian amateur team
    • an employee of a foreign news company for the purpose of reporting on events in Canada
    • a person who is responsible for assisting a congregation or group in the achievement of its spiritual goals and whose main duties are to preach doctrine, perform functions related to gatherings of the congregation or group, or provide spiritual counselling

It will be important for IRCC to standardize in their processes a request for a family information form. One common scenario especially in this context is the spouse of a skilled worker (PGWP) or perhaps another student (SP holder) who is unaware of the nature of their relationship (e.g., common-law partnership).

Conclusion

Overall, this is much needed clarity and change I’ve been pushing for. The 150-days seems fair and offers a guidepost for both student and school. I also liked that IRCC put in blue, the importance of updating contact information and creating a MyCIC account to ensure updates are received.

We will see how it all works out in practice and it is my hope that IRCC does not exercise discretion to remove students heavy handedly.

A Closer Look at the Minimum Income Requirement for Parent and Grandparent Sponsorship

The Minimum Necessary Income (or “MNI”) requirement affects the ability of a Canadian citizen or permanent resident to sponsor certain foreign national members of the family class.

IRPR s. 120 states (emphasis added):

120. For the purposes of Part 5,

(a) permanent resident visa shall not be issued to a foreign national who makes an application as a member of the family class or to their accompanying family members unless a sponsorship undertaking in respect of the foreign national and those family members is in effect; and

(b) a foreign national who makes an application as a member of the family class and their accompanying family members shall not become permanent residents unless a sponsorship undertaking in respect of the foreign national and those family members is in effect and the sponsor who gave that undertaking still meets the requirements of section 133 and, if applicable, section 137.

Section 133(1)(j) states (emphasis added):

133. (1) A sponsorship application shall only be approved by an officer if, on the day on which the application was filed and from that day until the day a decision is made with respect to the application, there is evidence that the sponsor…

j) if the sponsor resides

(i) in a province other than a province referred to in paragraph 131(b),

(A) has a total income that is at least equal to the minimum necessary income, if the sponsorship application was filed in respect of a foreign national other than a foreign national referred to in clause (B), or

(B) has a total income that is at least equal to the minimum necessary income, plus 30%, for each of the three consecutive taxation years immediately preceding the date of filing of the sponsorship application, if the sponsorship application was filed in respect of a foreign national who is

(I) the sponsor’s mother or father, (my note: i.e. parent)

(II) the mother or father of the sponsor’s mother or father, (my note: i.e. grandparent) or

(III) an accompanying family member of the foreign national described in subclause (I) or (II), and

(ii) in a province referred to in paragraph 131(b), is able, within the meaning of the laws of that province and as determined by the competent authority of that province, to fulfil the undertaking referred to in that paragraph;

“Minimum necessary income” is defined in IRPR sections 2 and 134 and identified as “… the minimum amount of before-tax annual income necessary to support a group of persons ….”

minimum necessary income means the amount identified, in the most recent edition of the publication concerning low income cut-offs that is published annually by Statistics Canada under the Statistics Act, for urban areas of residence of 500,000 persons or more as the minimum amount of before-tax annual income necessary to support a group of persons equal in number to the total number of the following persons:

  • (a) a sponsor and their family members,

  • (b) the sponsored foreign national, and their family members, whether they are accompanying the foreign national or not, and

  • (c) every other person, and their family members,

    • (i) in respect of whom the sponsor has given or co-signed an undertaking that is still in effect, and

    • (ii) in respect of whom the sponsor’s spouse or common-law partner has given or co-signed an undertaking that is still in effect, if the sponsor’s spouse or common-law partner has co-signed with the sponsor the undertaking in respect of the foreign national referred to in paragraph (b). (revenu vital minimum)

By the above definition, it is important to properly calculate the size of your family and as well take into account any changes that might occur if your family size were to change during the application process.

It is also important to note R.134(1) on how income is calculated, especially the exclusions and how that may affect the income amounts (emphasis added)::

Income calculation rules

  •  (1) Subject to subsection (3), for the purpose of clause 133(1)(j)(i)(A), the sponsor’s total income shall be calculated in accordance with the following rules:

    • (a) the sponsor’s income shall be calculated on the basis of the last notice of assessment, or an equivalent document, issued by the Minister of National Revenue in respect of the most recent taxation year preceding the date of filing of the sponsorship application;

    • (b) if the sponsor produces a document referred to in paragraph (a), the sponsor’s income is the income earned as reported in that document less the amounts referred to in subparagraphs (c)(i) to (v);

    • (c) if the sponsor does not produce a document referred to in paragraph (a), or if the sponsor’s income as calculated under paragraph (b) is less than their minimum necessary income, the sponsor’s Canadian income for the 12-month period preceding the date of filing of the sponsorship application is the income earned by the sponsor not including

      • (i) any provincial allowance received by the sponsor for a program of instruction or training,

      • (ii) any social assistance received by the sponsor from a province,

      • (iii) any financial assistance received by the sponsor from the Government of Canada under a resettlement assistance program,

      • (iv) any amounts paid to the sponsor under the Employment Insurance Act, other than special benefits,

      • (v) any monthly guaranteed income supplement paid to the sponsor under the Old Age Security Act, and

      • (vi) any Canada child benefit paid to the sponsor under the Income Tax Act; and

    • (d) if there is a co-signer, the income of the co-signer, as calculated in accordance with paragraphs (a) to (c), with any modifications that the circumstances require, shall be included in the calculation of the sponsor’s income.

  • Exception

    (1.1) Subject to subsection (3), for the purpose of clause 133(1)(j)(i)(B), the sponsor’s total income shall be calculated in accordance with the following rules:

    • (a) the sponsor’s income shall be calculated on the basis of the income earned as reported in the notices of assessment, or an equivalent document, issued by the Minister of National Revenue in respect of each of the three consecutive taxation years immediately preceding the date of filing of the sponsorship application;

    • (b) the sponsor’s income is the income earned as reported in the documents referred to in paragraph (a), not including

      • (i) any provincial allowance received by the sponsor for a program of instruction or training,

      • (ii) any social assistance received by the sponsor from a province,

      • (iii) any financial assistance received by the sponsor from the Government of Canada under a resettlement assistance program,

      • (iv) any amounts paid to the sponsor under the Employment Insurance Act, other than special benefits,

      • (v) any monthly guaranteed income supplement paid to the sponsor under the Old Age Security Act, and

      • (vi) any Canada child benefit paid to the sponsor under the Income Tax Act; and

    • (c) if there is a co-signer, the income of the co-signer, as calculated in accordance with paragraphs (a) and (b), with any modifications that the circumstances require, shall be included in the calculation of the sponsor’s income.

Finally, a clause that  frequently captures individuals, especially in those applications that take increased time to process is IRCC’s ability under R. 134(2) [subject to R.134(3) calculation rules] to ask for updated evidence of income if more than 12 months have elapsed since the receipt of the sponsorship application or an officer receives information that the sponsor is no longer able to fulfil the obligations of the sponsorship undertaking (emphasis added):

  • Updated evidence of income

    (2) An officer may request from the sponsor, after the receipt of the sponsorship application but before a decision is made on an application for permanent residence, updated evidence of income if

    • (a) the officer receives information indicating that the sponsor is no longer able to fulfil the obligations of the sponsorship undertaking; or

    • (b) more than 12 months have elapsed since the receipt of the sponsorship application.

  • Modified income calculation rules

    (3) When an officer receives the updated evidence of income requested under subsection (2), the sponsor’s total income shall be calculated in accordance with subsection (1) or (1.1), as applicable, except that

    • (a) in the case of paragraph (1)(a), the sponsor’s income shall be calculated on the basis of the last notice of assessment, or an equivalent document, issued by the Minister of National Revenue in respect of the most recent taxation year preceding the day on which the officer receives the updated evidence;

    • (b) in the case of paragraph (1)(c), the sponsor’s income is the sponsor’s Canadian income earned during the 12-month period preceding the day on which the officer receives the updated evidence; and

    • (c) in the case of paragraph (1.1)(a), the sponsor’s income shall be calculated on the basis of the income earned as reported in the notices of assessment, or an equivalent document, issued by the Minister of National Revenue in respect of each of the three consecutive taxation years immediately preceding the day on which the officer receives the updated evidence.

 

What is the $$ Required for the Minimum Income Requirement (as of the date of this post)?

IRCC sets out the MNIs for parent and grandparent sponsorship, which discussed above, are the Minimum Necessary Income (“MNI”) plus 30%. IRCC obtains that information by either by an Applicant’s consent on Question 8 of the Financial Evaluation for Parents and Grandparents Sponsorship form or by completing the Income Sources for the Sponsorship of Parents and Grandparents form and submitting NOAs for the three preceding years.

Screen Shot 2018-12-24 at 12.19.37 PM

Expect this to change with the 2019 program reveal (requiring 2018, 2017, and 2016 Minimum Income)

Source: https://www.canada.ca/en/immigration-refugees-citizenship/services/application/application-forms-guides/guide-5772-application-sponsor-parents-grandparents.html 

Co-Signer

A co-signer’s undertaking  is governed by R. 132(5) IRPR which draws the minimum income requirement provisions of R. 133(1) and R. 134 into the fold.

  • Co-signature — undertaking

    (5) Subject to paragraph 137(c), the sponsor’s undertaking may be co-signed by the spouse or common-law partner of the sponsor if the spouse or common-law partner meets the requirements set out in subsection 130(1), except paragraph 130(1)(c), and those set out in subsection 133(1), except paragraph 133(1)(a), and, in that case,

    • (a) the sponsor’s income shall be calculated in accordance with paragraph 134(1)(b) or (c) or (1.1)(b), as applicable; and

    • (b) the co-signing spouse or common-law partner is jointly and severally or solidarily bound with the sponsor to perform the obligations in the undertaking and is jointly and severally or solidarily liable with the sponsor for any breach of those obligations.

The above provision on the face is actually a bit confusing. The spouse needs to be meet the requirements of 130(1) except R. 130(1)(c) yet is exempted from R. 133(1)(a) , which circularly requires that the sponsor must continue to meet the sponsorship requirements from the day the application is filed until the day a decision is made.

What I interpret this to mean – although I may be wrong, so take this with a grain of salt – is that the Co-signer must meet the R. 130(1) requirements at the time the application is submitted but is not required to provide evidence of ongoing compliance. In that sense, a Co-signer could reside in another country (for example to work abroad) but the Sponsor could not (per R.130(1)(b) and R. 133(1)(a) IRPR).

Co-signer issues can be quite complicated (especially with updating relationships)- I won’t go into too many details in this post but see Agyemang v Canada (Citizenship and Immigration), 2018 CanLII 115279 (CA IRB) for a representative case of the complexities that may occur.

IRCC sets out the requirements for a co-signer in their policy guide as follows:

May I have a co-signer?

Your spouse or common-law partner may help you meet the income requirement by co-signing the sponsorship application. A common-law partner is a person who is living with you in a conjugal relationship and has done so for at least one year prior to the signing of the undertaking.

The co-signer must:

  • meet the same eligibility requirements as the sponsor;
  • agree to co-sign the undertaking;
  • agree to be responsible for the basic requirements of the person you want to sponsor and his or her family members for the validity period of the undertaking.

The co-signer will be equally liable if obligations are not performed.

If your co-signer is a common-law partner, you must submit the Statutory Declaration of Common-Law Union (IMM 5409).

One of the current major gaps is that IRPR does not allow siblings (such as brothers/sisters) to both serve as co-signers. I would suggest that in many cases, allowing this type of arrangement (or at least some public policy exemption) may make more sense than having an in-law serve in that role.

Why are the MNIs so contentious – Some Case Law and Experiences

2014 Change in Regulations

In 2 January 2014,  IRPR ss. 133(1)(j) and s. 134 was amended to increase the MNI by 30 percent for this appeal from that considered by the visa officer. Madam Justice Simpson in Tharmarasa v. Canada (Citizenship and Immigration), 2018 FC 1174 (CanLII) examined the Regulatory Impact Analysis Statement [RIAS], finding that the IAD should have applied the old regulations, departing from the approach taken by the Federal Court in Patel v. Canada (MCI) 2016 FC 1221 and Begun v. Canada (MCI) 2017 FC 409.

Still other members have taken a different approach. In X (Re), 2018 CanLII 101225 (CA IRB)

[9]               Section 133(1)(j)(i)(B) of the Regulations applies to the Appellant’s sponsorship application because she is sponsoring a parentOn January 1, 2014, section 133(1)(j)(i) of the Regulations was amended to increase the MNI by thirty percent for the sponsorships of parents. Section 134 (1.1) of the Regulations also provides the income calculation rules that are applicable in cases where an appellant sponsors their parents. Prior to 2014, the calculation required assessing the income an appellant earned in the year immediately preceding the sponsorship application. Since January 1, 2014, the calculation requires assessing income earned in each of the three consecutive taxation years immediately preceding the date of the filing of the sponsorship application.[3]

[10]           In Gill,[4] it was held that the sponsor did not have the right to have her application determined under the previous version of the Regulations, as people who apply for permanent residence have no accrued or accruing rights until a final decision has been made on their application. The final decision on an application is the Immigration Appeal Division (IAD) decision. Therefore, the sponsorship requirements applicable at the time of this appeal are the requirements under the amended Regulations. This sponsorship application for the Appellant’s father was filed on June 28, 2010. Despite Gill, the parties at the hearing agreed that they would consider the visa officer’s assessment of the Appellant’s income for 2014 only. The parties agreed that the MNI had not been met for ten persons at the time of the assessment. [5]

[11]           As such, I find that the visa officer’s refusal is legally valid.

It is not uncommon for two lines of jurisprudence to come out of the Federal Court – an issue I hope IRCC will try to navigate by clarifying instructions to IAD board members.

There also are implications for the new thresholds in appeals. As the Panel in Rajah v Canada (Citizenship and Immigration), 2018 CanLII 107684 (CA IRB) sets out – the present ability to meet the new MNIs may lower the threshold re: discretionary relief.

Discretionary Relief – Is the Lower Threshold Available?

[14]           For the purpose of determining the standard of discretionary relief to be applied in a financial refusal, the sponsor’s ability to meet the MNI at the date of hearing is relevant. The cases of Jugpall[9] and Dang[10] suggest that a lesser standard of granting relief will be applicable in cases where the appellant now meets the financial requirements of sponsorship.

[15]           As I have previously held, it is my view that the current MNI provisions for sponsoring parents should apply when determining if a sponsor now meets the financial requirements under the IRPA and its Regulations.[11] Chief Justice Crampton’s decision in Gill[12] confirms that the new MNI requirements should apply when determining if an appellant is to have access to a lower threshold for the exercise of special relief. The issue was also more recently considered by Justice Russell in Sran,[13] where the Court determined that the IAD’s use of the new regulatory provision in this context was reasonable. As such, the onus is on the appellant to establish based on Revenue Canada Notices of Assessment that he met the MNI for the past three years.

[16]           In her written submissions, counsel for the appellant concedes that the appellant did not meet the MNI for 2015 and 2016. The lower Jugpall threshold does not apply.

In this matter, the Appellant was ultimately successful in demonstrating humanitarian and compassionate grounds and the appeal was allowed.

IRCC Incorrectly Relying on Tax Years Four Years Back – the Shifting Window/Alternative Forms of Income

One of the historical issues that made assessment very challenging was IRCC’s practices of ‘skipping’ the most immediate year due to the fact taxes were not filed by the time the Application to Sponsor went in.

Still, the shifting window or even the “uncertainty” of whether one meets the tax requirements of a particular filing years. Certain times, especially where individuals are self-employed, there will be conflict between the amount that it makes sense to declare for tax and what is best for the business.

Calculating Family Size
The issues of calculating family size were also prominent in X (Re) 2018. From paragraphs 18-31, the Member had to assess whether certain half-siblings were dependent who were 21 and just under the age where a child stops becoming dependent were being cared for by the Sponsor.

In cases such as as Alavehzadeh v Canada (Citizenship and Immigration), 2016 CanLII 73710 (CA IRB) [and the companion case Begum v Canada (Citizenship and Immigration), 2016 CanLII 73712 (CA IRB), that eventually went up to the FC and FCA]  IAD Panels have faced situations, when assessing humanitarian and compassionate considerations, from applicants who come from large multi-family units, where siblings work to contribute to the household and an Appellant themselves may not have the funds themselves.  In Alavehzadeh, the Panel found that s.67 allowed for considerations that may overcome deficiency and provides sufficient broad discretion to take into account individual circumstances.

We saw this in Jir v Canada (Citizenship and Immigration), 2018 CanLII 81824 (CA IRB), where the Sponsor’s consistent work history and cash-only payment as a babysitter contributed to a positive humanitarian and compassionate grounds finding, even though there was a lack of proof of the payment.

Unfortunately,  the Federal Court of Appeal in Begum ruled decisively that MNIs do not violation s.7 and s.15 of the Charter, finding there was no Charter right to family reunification  (see Begum v. MCI  2018 FCA 181 at paras 100-110) and that there quantitative evidence fell short of meeting the burden of demonstrating an adverse impact (see Begum v. MCI  2018 FCA 181 at paras 41-92).

Updating the Visa Office Diligently

It is very important to ensure that visa offices are updated as soon as changes occur and that any implications on the MNI are brought to the Officer’s attention. I have been involved in several cases where visa officer’s mistakenly consider a newborn child as part of the MNI in a tax-year where they have not yet been born. these changes are not always intuitive and the relevant tax years (as we discussed above) is often a source of internal confusion.

Hope this posts helps you navigate the MNI! I eagerly await seeing how the 2019 process will work out 🙂

Christmas from behind a Cup of *Starbucks* Coffee

The gruff beard counterpoints the cheerful Santa Hat.

Perhaps a cover to the balding hair – alas another year gone – it certainly has been a long one.

Two men – brothers, lovers – who knows and frankly it’s not my place to judge.

Human love is human love – and I can see in their tenderness with each other that it is love by very definition of the word.

A pink haired goddess. Rapunzel of today’s generation. She leaves but acknowledges her presence or maybe I have acknowledged hers.

A stunning beauty.

I said I would stay local but I find myself again in Starbucks. Work is the agenda but people watching is the reality show.

“I’ll pick you up tonight” kissed to the head and check from one man to another. He leaves. He stays. Sniffles either from a persistent cold but more likely from an insistent love.

I can imagine he’s texting him as he leaves the door. I remember all too well those days as well. Phone a lifeline and whatever the maker decided to do with battery life, the heart beat.

Christmas does different things to different people. Those with stories of loss are all to conscious of what they have lost. For others, the ability to take a much needed deep breath. To spend a little of the hard-earned money on loved ones. To reconnect with those we have spent too little time with.

Friends from fargone places send messages wishing you happy holidays. The warm moments that remind you that the stocking isn’t always full of coal.

In all this global uncertainty, caravans and controversy – the universal truth that we are all human spirits and souls on the same sleigh ride of life is an important one.  Taking time aside to love one another, interact with one another, smile at one another – a raison d’etre for living.

Wishing you and your loved ones endless love and happiness over a cup of Starbucks coffee (no sugar – my weight is becoming problem).

(p.s. the guy with the Santa hat actually works here!).

(p.p.s I will be putting up more blogs in 2019 – it is my resolution every year but this year I’m committed).

How does the Sergei Magnitsky Law Tie Into Inadmissibility Under the Immigration and Refugee Protections Act?

Recently Canada’s Foreign Minister Chrystia Freeland made an announcement that 17 Saudi Nationals linked to the death of journalist Jamal Khashoggi had been sanctioned under the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law).

Within her announcement, she mentioned that these 17 individuals (which notably do not include the Crown Prince MBS) are now inadmissible to Canada.

Given the Sergei Magnitsky Law is relatively new, I thought it would be worth looking at how these two legal provisions tie into each other.

They tie in to each other via the related amendments made to section 35 of the Immigration and Refugee Protection Act (IRPA) noted in the preamble and the Related Amendments in Section 18 of the Victims of Corrupt Foreign Officials Act.

As stated in the Regulatory Impact Analysis – “The Immigration and Refugee Protection Act renders inadmissible to Canada persons, other than permanent residents, subject to orders and regulations made under the new Act. Therefore, the individuals listed in the Regulations are inadmissible to Canada.”

We need to look at the IRPA to better understand the application of an s.35(1) IRPA inadmissibility.

IRPA and the Victims of Corrupt Foreign Officials Act

Human or international rights violations

 (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for

(e) being a person, other than a permanent resident, who is currently the subject of an order or regulation made under section 4 of the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law).

Clarification

(2) For greater certainty, despite section 33, a person who ceases being the subject of an order or regulation referred to in paragraph (1)(d) or (e) is no longer inadmissible under that paragraph.

2001, c. 27, s. 35;
2013, c. 16, s. 14;
2017, c. 21, s. 18.

In order to get one’s name off the list, one needs to make an application under section 8 of the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law).

Rights of Foreign Nationals Who are the Subject of an Order or Regulation

Application

8 (1) A foreign national who is the subject of an order or regulation made under section 4 may apply in writing to the Minister to cease being the subject of the order or regulation.

Recommendation

(2) On receipt of the application, the Minister must decide whether there are reasonable grounds to recommend to the Governor in Council that the order or regulation be amended or repealed, as the case may be, so that the applicant ceases to be the subject of it.

Time limit

(3) The Minister must make a decision on the application within 90 days after the day on which the application is received.

Notice if application rejected

(4) The Minister must give notice without delay to the applicant of any decision to reject the application.

New application

(5) If there has been a material change in the applicant’s circumstances since their last application under subsection (1) was submitted, he or she may submit another application.

Currently, there are no cited cases to this law.

What If the Individual is in Canada

In the off chance that they are in Canada already when the order is made, the application removal order per R. 229(1) of the Immigration and Refugee Protection Regulations is

 (1) For the purposes of paragraph 45(d) of the Act, the applicable removal order to be made by the Immigration Division against a person is

(b) a deportation order, if they are inadmissible under subsection 35(1) of the Act on grounds of violating human or international rights;

Update: On 22 December 2018, Canada Gazette, Part 1, Volume 152 Number 51: Regulations Amending the Immigration and Refugee Protection Regulations was released, which proposes to turn the applicable removal order (with Immigration Division designated responsibility) into a specified removal order (with the Minister’s Delegate designated responsibility. See more, here.

Conclusion

So far there is not a single case citing to s. 35(1)(e) IRPA – it is no doubt still in it’s legislative infancy. More is certainly yet to come on this interesting piece of law!

Fettering Discretion and Standard of Review – Boswell J. sets out a Useful Summary in Alagaratnam

Readers of this blog know that one of the concepts that I am very fascinated/still struggle with the idea of fettering discretion. For whatever reason, my 2015 post where I tried to harness my inner Paul Daly and assess it, is a top Google search for the definition [use with caution/take it for what it’s worth].

While researching for a judicial review I am preparing when an Officer went beyond the policy scope of their discretionary assessment of humanitarian and compassionate grounds factors, I came across a 2017 Boswell J. decision in Alagaratnam v. Canada (Citizenship and Immigration), 2017 FC 381 (CanLII), <http://canlii.ca/t/h3bsc> that does a very good job of laying out the state of the current standard of review analysis.

For now, I think this is the best way to address standard of review until we may get clarity with the new trilogy heard in December with Bell Canada, et al. v. Attorney General of Canada (37896), and with National Football League, et al. v. Attorney General of Canada (37897).

I have reproduced paragraphs 23 to 28 below.

A.               Standard of Review

[23]           An officer’s decision to deny relief under subsection 25(1) of the IRPA involves the exercise of humanitarian and compassionate discretion and is reviewed on the reasonableness standard (Kanthasamy at para 44). Under this standard of review, the Court must determine whether the Officer’s decision “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” and whether the decision is justifiable, transparent, and intelligible: Dunsmuir v New Brunswick2008 SCC 9 (CanLII) at para 47, [2008] 1 SCR 190. Those criteria are met if “the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes”: Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board)2011 SCC 62 (CanLII) at para 16, [2011] 3 SCR 708.

[24]           It warrants note that the Supreme Court in Kanthasamy applied a reasonableness standard of review, yet ultimately concluded that the officer had inappropriately fettered her discretion by a literal obedience to the adjectives “unusual and undeserved or disproportionate” hardship, leading her “to see each of them as a distinct legal test, rather than as words designed to help reify the equitable purpose of the provision” (para 45).

[25]           As to the standard of review for an allegation that an administrative decision-maker has fettered their discretion, this is somewhat unsettled in the jurisprudence. In Stemijon Investments Ltd v Canada (Attorney General)2011 FCA 299 (CanLII), 341 DLR (4th) 710 [Stemijon], Justice Stratas explained how fettering of discretion was traditionally an automatic ground for setting aside a decision, but now it should be subsumed into the reasonableness analysis:

[21]      The appellants’ submissions, while based on reasonableness, seem to articulate “fettering of discretion” outside of the Dunsmuir reasonableness analysis. They seem to suggest that “fettering of discretion” is an automatic ground for setting aside administrative decisions and we need not engage in a Dunsmuir-type reasonableness review.

[22]      On this, there is authority on the appellants’ side. For many decades now, “fettering of discretion” has been an automatic or nominate ground for setting aside administrative decision-making: see, for example, Maple Lodge Farms Ltd. v. Government of Canada1982 CanLII 24 (SCC), [1982] 2 S.C.R. 2 at page 6. The reasoning goes like this. Decision-makers must follow the law. If the law gives them discretion of a certain scope, they cannot, in a binding way, cut down that scope. To allow that is to allow them to rewrite the law. Only Parliament or its validly authorized delegates can write or rewrite law.

[23]      This sits uncomfortably with Dunsmuir, in which the Supreme Court’s stated aim was to simplify judicial review of the substance of decision-making by encouraging courts to conduct one, single methodology of review using only two standards of review, correctness and reasonableness. In Dunsmuir, the Supreme Court did not discuss how automatic or nominate grounds for setting aside the substance of decision-making, such as “fettering of discretion,” fit into the scheme of things. Might the automatic or nominate grounds now be subsumed within the rubric of reasonableness review? On this question, this Court recently had a difference of opinion: Kane v. Canada (Attorney General)2011 FCA 19 (CanLII). But, in my view, this debate is of no moment where we are dealing with decisions that are the product of “fettered discretions.” The result is the same.

[24]      Dunsmuir reaffirms a longstanding, cardinal principle: “all exercises of public authority must find their source in law” (paragraphs 27-28). Any decision that draws upon something other than the law – for example a decision based solely upon an informal policy statement without regard or cognizance of law, cannot fall within the range of what is acceptable and defensible and, thus, be reasonable as that is defined in Dunsmuir at paragraph 47. A decision that is the product of a fettered discretion must per se be unreasonable.

[26]           In Frankie’s Burgers Lougheed Inc v Canada (Employment and Social Development)2015 FC 27(CanLII), 473 FTR 67, the Court followed this approach:

[24]      With respect to the fettering of discretion issue that has been raised, it is not necessary to definitively determine whether the standard of review is correctness or reasonableness, since the result is the same: a decision that is the product of a fettered discretion must per se be unreasonable (Stemijon…at paras 20-24).

[27]           More recently, in Gordon v Canada (Attorney General)2016 FC 643 (CanLII), 267 ACWS (3d) 738, the Court noted the unsettled question as to whether a correctness or a reasonableness standard of review applies to an allegation that an administrative decision-maker fettered their discretion, observing that:

[25]      Some confusion exists regarding the appropriate standard of review where the fettering of discretion is at issue.

[26]      Traditionally, the fettering of discretion has been reviewable on the correctness standard: Thamotharem v. Canada (Minister of Citizenship & Immigration)2007 FCA 198 (CanLII) at para 33, 366 NR 30.

[27]      However, the Federal Court of Appeal has recently posited that post- Dunsmuir, the fettering of discretion should be reviewed on the reasonableness standard, as it is a kind of substantive error. The Federal Court of Appeal has, however, also been careful to say that the fettering of discretion is always outside the range of possible, acceptable outcomes, and is therefore per se unreasonable: Stemijon at paras 23-25…

[28]      It is sufficient to state in this case that the fettering of discretion is a reviewable error under either standard of review, and will result in the decision being quashed: JP Morgan Asset Management (Canada) Inc. v. Minister of National Revenue2013 FCA 250 (CanLII) at paras 71-73, 450 N.R. 91; see also Stemijon Investments, above, at para 23. Simply put, if the Minister’s Delegate fettered her discretion, her decision should be set aside regardless of the standard of review applied.

[28]           For the purposes of this case, it is sufficient to conclude that, regardless of the standard of review to be applied to the fettering of discretion issue raised by the Applicant, if the Officer fettered his or her discretion that would constitute a reviewable error under either standard of review and would require that the decision be set aside.