I. Nature of the matter
[1] This is an application for judicial review of the decision of the Immigration Officer dated December 10, 2024 [Decision] refusing the Applicant’s post graduate work permit. The Applicant was refused this permit because he was not a full-time student during each academic session of his program. In fact, counsel agreed the Applicant did not have full time status because he withdrew from one of two courses during the Summer 2020 session which the Officer mistakenly referred to as the “Fall 2019 Winter 2019”
session. The Applicant did not raise this mistake with the Officer after receiving the Decision, nor did he seek reconsideration of the Decision. However, it would not have made a difference because it is not disputed, on this record, he did not qualify for the permit. Even if the Applicant’s submissions had merit (which they don’t) and judicial review is granted (which it is not), the present outcome is inevitable thus remitting the case would serve no useful purpose.
II. Facts
[2] The Applicant arrived in Canada on a study permit and began his studies at York University for his B.A. (Hons) Criminology in Fall 2019. The Applicant’s study permit was valid until September 30, 2024.
[3] His transcript shows for the Fall/Winter 2019 session, the Applicant was enrolled in 4 year-long courses each worth 6 credits. The transcript also shows he was enrolled in the Summer 2020 session for 2 courses, one worth 3 credits and the other worth 6 credits. These 9 credits constituted full time status for the summer session. The Applicant withdrew from the course worth 6 credits such that, for the Summer 2020 session, he did not have full time status. This put him outside the work permit requirements.
[4] Notwithstanding, the Applicant applied for a post graduate work permit in June 2024 while in Canada. The Applicant submitted a copy of his transcript showing the deficiency and a letter indicating he completed his undergraduate education in support of his application.
III. Decision under review
[5] The Officer determined the Applicant had not satisfied the requirements of the Immigration and Refugee Protection Act, SC 2001, c 27 or the Immigration and Refugee Protection Regulations, SOR/2002-227.
[6] The Decision states the Applicant did not maintain full-time student status in Canada “during each academic session of the program or programs and [has] completed a program of study that is at least eight months in duration”
in a university, community college, CEGEP, trade or technical school, or private institution.
[7] The Officer addressed the Applicant’s eligibility in the Global Case Management System notes which notes the Applicant was a part-time student in the Fall and Winter 2019 sessions, as well as the final academic session.
[8] Because applicants must maintain full-time status during each academic session of their program, and York University defines a full-time student as one who enrols in a minimum of 9 credits per session, the Officer concluded the Applicant had not maintained full-time student status. Notably in the Summer 2020 session he started out with 9 but withdrew from a course leaving him only 3 credits that session.
[9] The Applicant did not bring this error to the attention of the Officer, nor did he seek reconsideration. He does not explain why.
IV. Issues
[10] Respectfully, the issues are whether the Decision is reasonable and was it reached in a procedurally fair manner.
V. Standard of review
[11] The parties agree, and I concur, the standard of review for the Officer’s Decision in this case is reasonableness. On the issue of procedural fairness, the Applicant and the Respondent submit the standard is correctness and again I agree.
A. Reasonableness
[12] With regard to reasonableness, in Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67, issued contemporaneously with the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 [Vavilov], the majority per Justice Rowe explains what is required for a reasonable decision, and what is required of a court reviewing on the reasonableness standard:
[31] A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov, at para. 85). Accordingly, when conducting reasonableness review “[a] reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at [the] conclusion” (Vavilov, at para. 84, quoting Dunsmuir, at para. 48). The reasons should be read holistically and contextually in order to understand “the basis on which a decision was made” (Vavilov, at para. 97, citing Newfoundland Nurses).
[32] A reviewing court should consider whether the decision as a whole is reasonable: “what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review” (Vavilov, at para. 90). The reviewing court must ask “whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at para. 99, citing Dunsmuir, at paras. 47 and 74, and Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 13).
[33] Under reasonableness review, “[t]he burden is on the party challenging the decision to show that it is unreasonable” (Vavilov, at para. 100). The challenging party must satisfy the court “that any shortcomings or flaws relied on ... are sufficiently central or significant to render the decision unreasonable” (Vavilov, at para. 100).
[Emphasis added]
[13] Per the Supreme Court of Canada’s more recent judgment in Mason v Canada (Citizenship and Immigration), 2023 SCC 21, the purpose of reasonableness review is to uphold the rule of law while according deference to administrative decision makers:
[57] Vavilov explained that the purpose of reasonableness review is “to give effect to the legislature’s intent to leave certain decisions with an administrative body while fulfilling the constitutional role of judicial review to ensure that exercises of state power are subject to the rule of law” (para. 82). Reasonableness review starts from a posture of judicial restraint and “a respect for the distinct role of administrative decision makers” (para. 13), arising from the legislature’s institutional design choice to give administrative decision makers rather than courts the jurisdiction to decide certain issues (para. 24). Reasonableness review also serves to “maintain the rule of law” (para. 2) and “to safeguard the legality, rationality and fairness of the administrative process” (para. 13). Thus, the purpose of reasonableness review is to uphold “the rule of law, while according deference to the statutory delegate’s decision” (Canada Post, at para. 29).
[Emphasis added]
[14] Vavilov confirms the role of a judicial review Court is not to reweigh and reassess the evidence unless there are “exceptional circumstances.”
The Supreme Court of Canada instructs:
[125] It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker”: CHRC, at para. 55; see also Khosa, at para. 64; Dr. Q, at paras. 41-42. Indeed, many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review: see Housen, at paras. 15-18; Dr. Q, at para. 38; Dunsmuir, at para. 53.
[Emphasis added]
[15] As the Federal Court of Appeal recently held in Canadian National Railway Company v Halton (Regional Municipality), 2024 FCA 160, dealing with significant risk to human health, reviewing courts must seek to understand the challenged decision to determine if it is rational and logical as a whole, and not seize on inconsequential errors or omissions as, with respect, occurred in this case:
[44] Vavilov tells us that decisions being reviewed for reasonableness must be read in light of the record, holistically, and contextually: paras. 96-97. A reviewing court must give the reasons “respectful attention”, seek to understand the challenged decision, and determine if, as a whole, it is rational and logical—not seize on inconsequential errors or omissions: Vavilov at paras. 84-85 and 99-100.
[Emphasis added]
[16] In Vavilov at paragraph 102, Canada’s highest Court directs that judges on judicial review must not engage in a treasure hunt for error and are to focus on the rationality and overarching logic of the decision:
[102] To be reasonable, a decision must be based on reasoning that is both rational and logical. It follows that a failure in this respect may lead a reviewing court to conclude that a decision must be set aside. Reasonableness review is not a “line-by-line treasure hunt for error”: Irving Pulp & Paper, at para. 54, citing Newfoundland Nurses, at para. 14. However, the reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that “there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”: Ryan, at para. 55; Southam, at para. 56.
B. Procedural fairness
[17] On procedural fairness, “the ultimate question remains whether the applicant knew the case to meet and had a full and fair chance to respond”
: see Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paragraph 55-6 [per Rennie JA]:
[55] Attempting to shoehorn the question of procedural fairness into a standard of review analysis is also, at the end of the day, an unprofitable exercise. Procedural review and substantive review serve different objectives in administrative law. While there is overlap, the former focuses on the nature of the rights involved and the consequences for affected parties, while the latter focuses on the relationship between the court and the administrative decision maker. Further, certain procedural matters do not lend themselves to a standard of review analysis at all, such as when bias is alleged. As Suresh demonstrates, the distinction between substantive and procedural review and the ability of a court to tailor remedies appropriate to each is a useful tool in the judicial toolbox, and, in my view, there are no compelling reasons why it should be jettisoned.
[56] No matter how much deference is accorded administrative tribunals in the exercise of their discretion to make procedural choices, the ultimate question remains whether the applicant knew the case to meet and had a full and fair chance to respond. It would be problematic if an a priori decision as to whether the standard of review is correctness or reasonableness generated a different answer to what is a singular question that is fundamental to the concept of justice―was the party given a right to be heard and the opportunity to know the case against them? Procedural fairness is not sacrificed on the altar of deference.
[Emphasis added]
[18] In this respect it appears there are some five differing outcomes. but I follow the Federal Court of Appeal judgment itself relying on “the long line of jurisprudence, both from the Supreme Court and”
the Federal Court of Appeal itself, that “the standard of review with respect to procedural fairness remains correctness”
: see Canadian Association of Refugee Lawyers v Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at paragraph 35 per de Montigny JA (as he then was). Notably, to the same effect is the judgment of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, per Binnie J at paragraph 43:
[43] Judicial intervention is also authorized where a federal board, commission or other tribunal
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
No standard of review is specified. On the other hand, Dunsmuir says that procedural issues (subject to competent legislative override) are to be determined by a court on the basis of a correctness standard of review. Relief in such cases is governed by common law principles, including the withholding of relief when the procedural error is purely technical and occasions no substantial wrong or miscarriage of justice (Pal, at para. 9). This is confirmed by s. 18.1(5). It may have been thought that the Federal Court, being a statutory court, required a specific grant of power to “make an order validating the decision” (s. 18.1(5)) where appropriate.
[19] In Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 50, the Supreme Court of Canada also establishes what is required on the correctness standard of review:
[50] When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct.
VI. Submissions of the parties
A. Reasonableness
[20] The Applicant submits he has acted in good faith, intends to abide by the requirements of his study permit, and has submitted all required documents. He further alleges all the information he provided was true, accurate, and complete.
[21] The Respondent correctly notes the Applicant’s assertions as to his intentions and behaviours do not displace the reasonableness of this Decision, and I agree. The issue is whether the Officer’s mistake is fatal to the Decision even though the record fully justifies the Decision. I conclude it is not.
[22] The Applicant also alleges the Decision lacks a logical chain because there is no link between the Applicant’s evidence and the Officer’s reasons. The Respondent states this submission is without merit, which it is because the record fully supports the Decision and in particular the conclusion the Applicant did not have full time status as required. I agree.
[23] As the Respondent properly notes, the Officer misstated the academic session and was referring to the Summer 2020 session and not the Winter 2019 session. I agree and find it obvious that the Officer made a mistake. But, and with respect, the record fully supports the Decision. This case, in my view, is a classic case of treasure hunting for error in respect of which I find no merit, nor is there substantial or any injustice in this case. In my view, this mistake does not in any way detract from the rationale and overarching logic of the decision per Vavilov.
[24] Even if I were persuaded to ignore Vavilov, which I am not, there is a further basis on which this application must be dismissed, in that granting judicial review and ordering redetermination on this record would not make any difference. The result would be exactly the same. It is well-settled in administrative law that 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, a particular outcome is inevitable and remitting the case would serve no useful purpose per Vavilov at paragraph 142:
142] However, while courts should, as a general rule, respect the legislature’s intention to entrust the matter to the administrative decision maker, there are limited scenarios in which remitting the matter would stymie the timely and effective resolution of matters in a manner that no legislature could have intended: D’Errico v. Canada (Attorney General), 2014 FCA 95, 459 N.R. 167, at paras. 18-19. 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: see Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, 1994 CanLII 114 (SCC), [1994] 1 S.C.R. 202, at pp. 228-30; Renaud v. Quebec (Commission des affaires sociales), 1999 CanLII 642 (SCC), [1999] 3 S.C.R. 855; Groia v. Law Society of Upper Canada, 2018 SCC 27, [2018] 1 S.C.R. 772, at para. 161; Sharif v. Canada (Attorney General), 2018 FCA 205, 50 C.R. (7th) 1, at paras. 53-54; Maple Lodge Farms Ltd. v. Canadian Food Inspection Agency, 2017 FCA 45, 411 D.L.R. (4th) 175, at paras. 51-56 and 84; Gehl v. Canada (Attorney General), 2017 ONCA 319, 138 O.R. (3d) 52, at paras. 54 and 88. 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: see MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6, at paras. 45-51; Alberta Teachers, at para. 55.
[25] In my respectful review, the outcome is inevitable and remitting the case would serve no useful purpose, even if the Applicant’s submissions had merit which they do not.
B. Procedural fairness
[26] The Applicant argues the Officer should have notified him of their concerns to allow him to make further submissions, including an explanation from his university as to his status. Where an Officer has a concern which may adversely impact the application, there is jurisprudence to the effect that applicants may be entitled to receive an opportunity to respond: Yazdanian v Canada (Minister of Citizenship and Immigration), [1999] FCJ No 411 at paragraph 18. The Applicant submits the Officer should have exercised their discretion and issued a procedural fairness letter, alleging the Officer fettered their discretion.
[27] There is no merit in these submissions. As noted already, even if the Officer brought their concern to the Applicant’s attention with a procedural fairness letter and the Applicant pointed out the mistake, this record constrains the Decision which could not have reached any different decision than confirmation of the present rejection.
[28] More generally, it is well-established that such officers are not required to provide the Applicant with a second opportunity to prove they satisfy the permit for which they have applied, nor is there any basis to claim these officers have fettered their discretion if they don’t issue a procedural fairness letter: Hassani v Canada (Minister of Citizenship and Immigration), 2006 FC 1283 at paragraph 24.
[29] Notably also, officers cannot waive these regulatory requirements: Nookala v Canada (Citizenship and Immigration), 2016 FC 1019 at paragraph 12.
[30] In addition, as summarized in Mehfooz v Canada (Citizenship and Immigration), 2016 FC 165 at paragraph 12, the duty of procedural fairness falls on the low end of the spectrum:
[12] The onus is on a visa applicant to establish that he or she meets the requirements in the Regulations (Hamza at para 22). An application must be complete, relevant, convincing and unambiguous (Obeta v Canada (Minister of Citizenship and Immigration), 2012 FC 1542 at para 25). It is also well-established that the duty of procedural fairness owed to visa applicants falls on the low end of the spectrum (Hamza at para 23). Thus, CIC need not give applicants a “running score” of the weaknesses of their application (Rukmangathan v Canada (Minister of Citizenship and Immigration) 2004 FC 284 at para 23); it is their duty to file a complete application. In this case it was essential for the Applicant to file material that supported his claimed experience underlying his request for acceptance into the CEC. Failure to prove experience would be fatal to this application.
VII. Conclusion
[31] This application for judicial review will be dismissed.
VIII. Certified Question
[32] Neither party proposed a certified question, and I agree none arises.
IX. Costs
[33] Neither party requests their costs, and none will be ordered.
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