The answer to this question is rather complex and there are likely multitude of factors. However, based on what I am seeing, one factor has stood out. What I have observed lately is that some of the applications are being denied without due process of law.
This article was written by Parush Mann, Director and Principal Lawyer of Parush Mann Law Professional Corporation. CILA thanks the author for allowing us to repost the article on our website.
Let me explain, the Canadian immigration system is governed by a series of laws, rules, and policies. For the sake of simplicity, let us consider one of the relevant legislation, that being, the Immigration and Refugee Protection Act (“IRPA”). The person responsible to oversee IRPA is the minister of citizenship and immigration (“Minister”). In Canada, the minister is normally an elected official, and a member of parliament. The minister’s responsibility at its core is to represent the public and the interest of Canadians.
From the immigration system standpoint, the minister is also responsible to oversee the operations, for example, the decision-making process for immigration applications. However, practically speaking, it is impossible for the minister to personally make decisions on thousands of applications that are filed or are pending. Naturally, the ministerial power is thus delegated to individual officers, commonly known as IRCC officers.
These officers are normal hardworking Canadians. They are entrusted with public power and the responsibility to make life altering decisions. The public power they possess is enormous, but it is not unlimited. It has its limits, and there are check and balances put it place for this power becoming unbridled. These checks and balances require that the power be exercised responsibly, reasonably, and within the ambit of rule of law.
The officer’s power or discretion as it is commonly referred to by lawyers, must also respect Canadian values and the public trust. However, lately, the exercise of this power is showing signs of distress. When an officer decides an application, this person must do so bearing in mind the responsibility which they have been bestowed. An officer acts on behalf of the minister, who in turn acts on behalf of Canadians, and the most important job they must all do, is apply the law.
Legally speaking, what does it mean to apply the law? It means, when an officer decides an application, first and foremost, they must apply IRPA, second, they must apply the correct interpretation of governing legislation as determined by Canadian courts, and third, take appropriate guidance from departmental policies in the execution of their duties.
However, at the moment, I am not sure if this is happening. Instead, what I am seeing are signs of derogation of duty, particularly when it comes to denials. It appears some of the officers are exercising their public power unreasonably and irresponsibly. Now, it begs the question, where is the evidence for such claim. Well, it is to be found in the reasons provided for the negative decisions. Staple, blanket, or boiler, whichever the preferred term, the reasons which are being provided lately, remain vague, opaque, and on any given day, indistinguishable between completely different applications. The negative decisions and the reasons provided leave clients confused, anxious and struggling to find answers. Was justice done, was it seen to be done, I would argue in the negative.
Some examples of the reasons often cited in the denials include:
- The applicant has significant family ties in Canada.
- The applicant does not have significant family ties outside Canada.
- The purpose of the applicant’s visit to Canada is not consistent with a temporary stay given the details provided in the application.
- Applicant is not established in home country.
- The applicant’s current employment situation does not show that they are financially established in their country of residence.
- The applicant has limited employment possibilities in their country of residence.
- I am not satisfied that the applicant will depart Canada at the end of the period authorized for their stay.
What do the cited reasons tell us about the decision or the decision-making process? Well not much really.
Those that practice at the Federal Court of Canada know that litigating immigration denial cases pose significant challenges. Judicial reviews are not an appeal, there is no viva voce evidence, there is also generally no option to introduce new evidence. Court process is long, expensive, restricted, and our friends at department of justice, virtually defend every case.
As such, most of the clients opt to re-file. However, it must be emphasized that Canadian immigration system is not a lottery. New applications are not necessarily meant to yield different results. They are also not meant to overcome bad decisions. New applications are appropriate where there is material change in facts or circumstances, or where there were clear and marked gap in tendering of evidence in the first place.
After a denial takes place, in my experience, clients get caught in the labyrinth of having to select between litigation or re-filing. Neither process is predictable, both present delays, and clients are left without answer for months, sometimes years. All of which cause significant hardship to completely innocent and unsuspecting clients that have chosen to put their faith in the Canadian immigration system.
Decision to re-file in most cases, is primarily driven by variety of factors. These often include; scarcity of finances, lack of appropriate legal advice, and fundamental misunderstanding of the inner working of the Canadian legal and immigration system.
There is no right for a foreigner to enter Canada. However, I believe any person that seeks to enter Canada for any legal purpose, must be examined fairly, and in accordance with the rule of law. Examination process and outcome must be transparent, intelligent and justified. This is what our Supreme Court has told us. In simple terms, it means, justice must be seen to be done.
However, in the current climate, I am not sure if justice is visible, the reasons for the denials certainly do not support it. As a lawyer, and an officer of the court, I have tremendous faith in our institutions. The court process is generally transparent and for most part the outcome will be visible. Is it a perfect process, absolutely not, but our judicial system is one of the foundational pillars of our democracy and it is the best forum we have to seek justice. However, pursuit of justice requires motivation, patience and finances. Nevertheless, in the current climate, where rule of law appears to be in distress, litigation has become necessary, not only for distressed parties, but also for Canadians.
