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).
By Guilhem de Roquefeuil