Just how wrong do immigration officers have to be before the Federal Court will interfere with their decisions?

 

In most cases: very, very, very wrong.

 

Thankfully, this “standard of review” was recently addressed in the case of a Costa Rican couple that, against all odds, won a temporary stay of execution of their removal from Canada.

 

In December 2005, Warren Vidaurre Cortes and Angelita Quesada submitted an application to remain in Canada permanently on humanitarian grounds.


The application was partially based on the fact that Warren had suffered physical and psychological disabilities as a result of a serious work-related injury and that their three-year-old Canadian-born daughter’s best interests dictated that she be allowed to live here in Canada with her parents.


When their removal was scheduled, the couple’s lawyer asked the expulsion officer to defer the removal until the humanitarian application could be considered. The officer refused and the couple sought a temporary stay of execution in the Federal Court. Cortes and Quesada faced an extremely high burden. They had to prove that the officer’s decision was “patently unreasonable” as this is the test traditionally adopted by the Federal Court in such cases. The court has taken the view that immigration officers have a high degree of “expertise” and that they should be afforded considerable deference when they decide when to schedule a removal.


Never afraid to buck conventional thinking, Mr. Justice Campbell registered his complete disagreement with this approach and held that it is not necessary to demonstrate that an officer’s decision was “patently unreasonable.” He held that the court should interfere with an officers decision if it finds that it is just plain “unreasonable.”


What’s the difference?


Let’s suppose that an officer concluded that two plus two was equal to five. Obviously, the officer’s conclusion would be incorrect but not necessarily “unreasonable.”


The court would probably not interfere with such a finding.


If the officer calculated the answer to be, say, ten, that might be “unreasonable” but not necessarily “patently unreasonable.” The Supreme Court of Canada has held that in order for a decision to be “patently unreasonable” the decision has to be “clearly irrational” or “must almost border on the absurd.”


Justice Campbell reasoned “neither a removals officer, nor a reviewing judge, possesses dominant subjective judgment when it comes to weighing the human conditions which are, invariably, integral to a deferral application.”


By certifying that his decision raises a question of general importance, the judge paved the way for the immigration department to appeal his decision.


I have no doubt that the department will appeal and that it will argue that officers should be entitled to make decisions that border on the “absurd” and the “irrational.”


After all, how do you think our immigration system got this way?





Guidy Mamann practices law in Toronto at Mamann & Associates and is certified by the Ontario Law Society as an immigration specialist. Hear him live each Sunday morning at 11 on Toronto’s AM640. Direct confidential questions to metro@migrationlaw.com