From checkbox decision to a full sentence or two; reasoning in immigration law evolves!

For a time after the Federal Court of Appeal released its landmark decision in VIA Rail Canada Inc. v. National Transportation Agency [2001] 2FC 25, the requirement for a tribunal to issue adequate reasons became a standard issue in immigration law. The checkbox decision-making of the bad old days was finally extinguished and immigration decisionmakers, at all levels, were held accountable for justifying why families were to be separated, refugees refused asylum and refoulement was justifiable.

Once considered a breach of natural justice, inadequate reasons became one of the factors relevant to an assessment of a decision’s reasonableness with the Supreme Court of Canada decision in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708. That worked as well. In a number of decisions, the Federal Court found fault with decisionmakers who failed to offer anything more than a vague explanation for refusing claims and applications.

In Adjibi v. MCI [1995], 89 F.T.R. 106, Justice Eleanor Dawson, now of the Federal Court of Appeal, said that meaningful reasons require that a claimant and a reviewing court receive a sufficiently intelligible explanation as to why. In MCI v. Mann [2004] FCJ No. 1611, the Federal Court overturned the decision of the Immigration Appeal Board on the grounds that its reasons were inadequate. In rendering this decision, the court quoted the following passage from the Court of Appeal in Via Rail:

The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. Rather, the decisionmaker must set out its findings of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue. The reasoning process followed by the decisionmaker must set out and must reflect consideration of the main relevant factors.

Adequate reasons had to be more than a recitation of the facts and a conclusion. They had to offer an explanation. The depth of that explanation in the extradition context was noted by the Supreme Court in Lake v Canada (Minister of Justice), [2008] SCJ No 23 as requiring an ability for an individual to understand why the decision was made, and to allow a reviewing court to review it.

But then things changed. The Supreme Court issued its decision in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, in which it held that a reviewing court could replace its own reasoning for that of tribunals when the tribunal’s was lacking. This principle was repeated in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, and turned a checkbox answer into a transparent, fulsome explanation by implying into reasons the court’s own rationale.

The Agraira decision, which applied Alberta Teachers, ended rational decision-making in immigration law. Justification was no longer necessary as the court could fill in the blanks. And there were many blanks.

With the issuance of the Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 6, the requirement for transparent, clear reasons has been revived. The court expressly noted that the principle of implied reasons in Alberta Teachers was now vanquished and decisionmakers were again accountable. It is not enough for a decision to be reasonable; the rationale for that decision must also reflect a reasonable consideration of the submissions and the statute at play.

In a recent decision in Okojie v. Canada (Citizenship and Immigration), 2020 FC 948, the Federal Court held that the Supreme Court’s decision in Vavilov raised the bar for what passes as sufficient reasons to justify certain types of decisions. The Federal Court remarked that the majority of the Supreme Court had emphasized the creation of a “culture of justification” in administrative decision-making.

The Vavilov court held that, on a judicial review application, the reviewing judge must consider both the reasons provided by the decisionmaker and the overall outcome. The reviewing court should start with the reasons, as they are the “primary mechanism by which administrative decisionmakers show that their decisions are reasonable.” Close attention must be paid to those reasons. In addition, a decision must not only be justifiable; where reasons are required, the decision must actually be justified, by way of reasons, by the decisionmaker.

The Supreme Court outlined in detail how to approach and analyze a decisionmaker’s reasons, providing guidance about what will and will not be sufficient as justification for judicial review purposes. The bar has been raised for sufficient reasons, and immigration law will be the better for it.

Fundamental human rights issues should not be decided by checkbox decisions. Respect for the law travels with an understanding that even if you have lost, you had your fair day in court. Vavilov restored that principle.