The sentiment may be holiday-induced, but certain passages in Vavilov feel like sips from a cup of fresh eggnog.

The Court’s take on choice of standard may spill the most ink in administrative legal circles. Yet, it is snippets from the Court’s subsequent master class on “Reasonableness & the Culture of Justification” that immigration litigators should hang on their Christmas trees. Some, dare we hope, may become actionable tools for immigration litigators to challenge the vague/perfunctory/boilerplate reasons for refusal that, at times disconcertingly, define our client’s lives.

For instance, when dozens (read: hundreds) of pages of submissions are done away by three-lined reasons in GCMS, with (at-best) life redefining consequences for a client, let us say that our faith in the Decision Maker tends to dwindle.

Well, the Court may have given us hope to believe again:

We discuss a number of elements that will generally be relevant in evaluating whether a given decision is reasonable, namely the governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the submissions of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies. (Vavilov, at para 106)

The “potential impact of the decision” on our clients is the raison d’être of our submissions. That both it and our submissions have become standalone elements in the reasonableness analysis is promising.

Still, there remains the (quasi-existential) dread that the inclusion of the phrase “I have considered the evidence before me” could, ipso facto, reasonably efface a hundred pages of submissions. The Court has given us more reasons to hope:

The concept of responsive reasons is inherently bound up with this principle, because reasons are the primary mechanism by which decision makers demonstrate that they have actually listened to the parties. (Ibid, at para 127)

Hold on, does actual listening entail meaningful grappling with the submissions? Well, yes:

[…] a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it”(Ibid, at para 128)

This is progress. Now, on to power dynamics:

Many administrative decision makers are entrusted with an extraordinary degree of power over the lives of ordinary people, including the most vulnerable among us. The corollary to that power is a heightened responsibility on the part of administrative decision makers to ensure that their reasons demonstrate that they have considered the consequences of a decision and that those consequences are justified in light of the facts and law. (Ibid, at para 135)

So with great administrative power comes the great responsibility to demonstrate consideration for its consequences on individual lives? GCMS, meet humanity.

And last, but not least: to all who have had to explain to their clients that twelve or more months of uncertain federal court proceedings could – success notwithstanding – result in a fresh refusal:

An intention that the administrative decision maker decide the matter at first instance cannot give rise to an endless merry-go-round of judicial reviews and subsequent reconsiderations. Declining to remit a matter to the decision maker may be appropriate where it becomes evident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose. Elements like concern for delay, fairness to the parties, urgency of providing a resolution to the dispute, the nature of the particular regulatory regime, whether the administrative decision maker had a genuine opportunity to weigh in on the issue in question, costs to the parties, and the efficient use of public resources may also influence the exercise of a court’s discretion to remit a matter, just as they may influence the exercise of its discretion to quash a decision that is flawed. (Ibid, at para 142)

The endless merry-go-round of judicial reviews was never fun for anyone. We now have a shot at a ticket to hop off it.

Does this mean that a “win” in court could now, sometimes, mean just that for our clients?

Now there’s a Christmas wish.

PS: The holidays could have had a much sourer taste for our profession.

Picture challenging those three-lined GCMS reasons under Abella and Karakatsanis JJ’s alternative take on the reasonableness standard:

[…] Reasons should be approached generously, on their own terms. Reviewing courts should be hesitant to second-guess operational implications, practical challenges and on-the-ground knowledge used to justify an administrative decision. Reviewing courts must also remain alert to specialized concepts or languageused in an administrative decision that may be unfamiliar to a generalist judge (Newfoundland Nurses, at para. 13; Igloo Vikski, at paras. 17 and 30). When confronted with unfamiliar language or modes of reasoning, judges should acknowledge that such differences are an inevitable, intentional and invaluable by-product of the legislative choice to assign a matter to the administrative system. They may lend considerable force to an administrative decision and, by the same token, render an applicant’s challenge to that decision less compelling.Reviewing courts scrutinizing an administrative body’s decision under the reasonableness framework should therefore keep in mind that the administrative body holds the “interpretative upper hand” (Vavilov, joint concurring reasons of Abella and Karakatsanis JJ, at para 297).

 *shivers*

By Guilhem de Roquefeuil

North Star Immigration Law rented a house in Guadeloupe from late April to early June 2019. Our lawyers took turns going for a week or 2.

It was a small, cute house with good wifi and a nice pool:

The house came with a spectacular cat, one we almost brought home until we realized her hunting passion and prowess would be stifled in our office, since we have no lizards/birds/snails/hermit crabs/bats/moths/you-name-it-she-kills-it:

There was an outdoor trapeze school down the road from the house ( École de Trapeze Volant!):

Guadeloupe, being an overseas French Department, is a really interesting mix of Caribbean/Creole culture and France. Bakeries everywhere. Duck confit, cheap wine and good cheese in the grocery stores. And this, Hibiscus juice, the most spectacular of drinks:

Guadeloupe has a slow-pace, where you have to watch for crab-traffic in parking lots:

And cows on the way to the beach:

Pop-up Law Office, Lessons Learned:

I think it is fair to say, with only a week or 2, and with the beach, sun, cows, crabs and cats to occupy you, it’s hard to get settled and to get any real work done.

I assume everyone does this when their colleagues are on vacation – you try to give them time and space but always end up sheepishly emailing them once or twice, knowing you shouldn’t bother them, but only they have the answer/insight into a question, so maybe if they have a second, no rush, no pressure, they can give you some guidance? The fact that we could email each other while they were in Guadeloupe without feeling totally guilty since it was a “working holiday”, was great. And when it was your turn to be there, there was no expectation to get any massive file work done (except Cam and his PF submission that I’m hoping he at least wrote while sitting on the pool ledge). But an hour or two in the morning of replying to emails and the odd CSE, or giving feedback on something, was all that was needed.

So what did we do?

Sophie went jet skiing (photo pre-jet-ski):

Cam hung out in the rainforest:

Guilhem climbed the volcano:

Lori went to the beach:

And I stayed pretty close to home, this was the walk to the beach behind our house:

Wandering around the capital, Pointe a Pitre is very interesting:

See the artist’s Insta page here and FB page here.

Most of us made it to the ACTe, the International Memorial dedicated to the memory and history of the Slavery Trade. It is such an important place, I wish it was better known, because spending time there is a profound and life-changing experience.

Of everything, the highlight for me on this trip was a song. We were last in Guadeloupe with our kids (ages 5 and 9 at the time) 3 years ago, and we also spent a day at the ACTe. We paired up: my partner took our 9-year-old, and I went with our 5-year-old, Louisa. For the main exhibit, the audio tour is mandatory, even for kids. I remember Louisa and I finished the exhibit first, and as we stepped out into the final corridor, which is a tribute to heroes who have fought against slavery and oppression, the loveliest song started to play. As we stood at the end of the tour waiting, we watched strangers step out into that corridor as the same song started to play in their audio tour. Without exception, everyone started to tap, snap, shake or shimmy to the rhythm of that song. Whether consciously or not, that song makes you dance your way out the door of one of the saddest and most sobering places on earth.

I never found out what the song was, thinking I could find it online.
But of course, I never did.

This time, it was my first question after buying the entrance ticket.

The answer: Miriam Makeba, Pata Pata