Decision making: Standard of review and process for making a reasonable decision

This section contains policy, procedures and guidance used by IRCC staff. It is posted on the department’s website as a courtesy to stakeholders.

Important: In this program delivery instruction, the term “officer” refers to any person who is making a decision.

Administrative law regulates the activities of government, ensuring those activities are authorized by Parliament or provincial legislatures and that laws are implemented and administered in a fair and reasonable manner. Administrative law is based on the principle that government action, in whatever form it takes, must (strictly speaking) be legal. In addition, citizens who are affected by the unlawful acts of government officials must have effective remedies if the Canadian system of public administration is to be accepted and maintained.

Elements of the rule of law include the following:

Officers should note that there is a difference between standard of review and standard of proof. Standard of review is used by the courts when assessing officers’ decisions. Standard of proof is the degree that an officer must be satisfied that a fact has been proven.

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Standard of review

The standard of review is the legal approach used by courts to analyze an administrative decision during a judicial review. Administrative decisions are decisions made by governments or those acting on behalf of governments. Decisions made by immigration, citizenship, passport and border service officers are administrative decisions, and they are subject to judicial review.

The standard of review refers to the level of deference the courts should demonstrate toward an administrative decision. The standard of review guides the courts’ assessment of the decision. The standard has been developed over time by case law. More recently, in Vavilov, the Supreme Court of Canada (the Court) provided a comprehensive review of the law on the standard of review and set the parameters that must be followed moving forward.

The Vavilov framework does not represent a marked departure from the Court’s previous approach in Dunsmuir, which was based on the “hallmarks of reasonableness”, namely, transparency, intelligibility and justification. 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.

In conducting a reasonableness review, a court must consider not only the outcome of the administrative decision, but also the justification for the result. The focus must be on the decision actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place.

Written reasons given by an administrative body such as IRCC must not be assessed against a standard of perfection. Rather, a reviewing court must look to the record as a whole to understand the decision and must read the reasons holistically and contextually to understand the basis on which a decision was made.

The Court said that the default standard of review should be “reasonableness”.

A decision is reasonable when the reviewing court is able to trace the decision maker’s reasoning, without encountering fatal flaws in the overarching logic, and is 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 decision maker’s conclusion.

Note: The standard of review to be applied to questions of procedural fairness are not addressed through the Vavilov standard of review framework. This framework applies only where a court reviews the merits of an administrative decision. The common law on procedural fairness should be applied to determine whether the decision-making process was fair.

Decision-making process

A civil servant is delegated with the authority to make decisions that have consequences for the public. They are required by law to do so fairly. The decision made must be

Under internally coherent reasoning, for the decision to be reasonable, it must be based on reasoning that is both rational and logical. A decision will be unreasonable if the reasons for it do not show a rational chain of analysis or if they show that the decision was based on an irrational chain of analysis. Decisions may be called into question if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas or unfounded generalizations.

In addition, the decision must be justified in relation to the law and the facts relevant to the decision, and must be within the delegated powers of the decision maker.

The following are suggested steps that officers should follow to ensure they are making reasonable decisions.

Identify the requirement(s) that must be satisfied

Each application category consists of requirements that must be met or satisfied before a decision maker can render a decision. These requirements are specified in the applicable legislation, and direction is provided to officers in the relevant program delivery instructions.

General requirements can be broken down into specific elements that must be supported by evidence. Therefore, the first step in the process of making a decision on an application is to clearly identify the requirements that must be met.

Examples of legislation broken down into elements

Citizenship Act, paragraph 3(1)(a): Subject to this Act, a person is a citizen if the person was born in Canada after February 14, 1977.

The requirements can be broken down as follows:

  • a person
  • born in Canada
  • after February 14, 1977

Immigration and Refugee Protection Regulations, subsection 181(1): A foreign national may apply for an extension of their authorization to remain in Canada as a temporary resident if

  1. the application is made by the end of the period authorized for their stay and
  2. they have complied with all conditions imposed on their entry into Canada

The requirements can be broken down as follows:

  • a foreign national
  • makes an application
  • for extension of their stay
  • as a temporary resident
  • application is made before end of present stay
  • foreign national complied with all conditions imposed

Identify the facts to be proven

A fact is a thing that is known to be true. It is typically a piece of information that is supported by reliable evidence. An officer can say that a fact has been established by an applicant when the evidence that they have provided leads an officer to find that it is likely. If the evidence that they have provided does not lead an officer to find that it is likely, then an officer can say that the fact has not been established.

In this decision-making step, an officer is identifying the facts that must be proven based upon the information in front of them. The facts must be material to the decision.

It is a good practice to list the elements to be met and indicate which facts asserted by the applicant match which elements.

Apply the appropriate standard of proof

Once the requirements to be satisfied and the facts to be proven have been identified, an officer must assess the evidence. Evidence is strong or weak depending upon the degree to which it supports the facts under consideration and satisfies the decision maker as per the standard of proof required.

The standard of proof is the threshold that must be met in order to determine whether an allegation is true or to determine whether the requirements of an application are met. Since immigration proceedings and decisions are civil in nature, the general standard of proof applicable to civil matters—balance of probabilities—applies. Saying that something is proven on a balance of probabilities means that it is more likely than not to be true or that it is probable (that is, the probability that something is true is more than 50%).

As the decision maker on the application, an officer must review the evidence presented for each element and weigh the evidence in order to determine if the standard of proof has been met.

The level of proof required, in order from lowest to highest, is as follows:

  1. mere possibility or suspicion – could be nothing more than a possibility unsubstantiated by facts
  2. reasonable grounds to believe – a bona fide belief in a serious possibility that a fact has been established based on credible evidence
  3. balance of probabilities – refers to circumstances where the existence of a fact is more likely than its non-existence, and that the issue to be determined is not only possible, but probable, rather than improbable
  4. beyond a reasonable doubt

Unless otherwise stated in specific sections of legislation, the balance of probabilities is the standard of proof that applies to the administrative decisions made by officers with respect to citizenship and immigration matters.

Identify the relevant evidence

An officer must identify the evidence relevant to support the fact to be proven.

Evidence is anything presented in support of an assertion or anything presented to establish a fact or to prove an element. Typical kinds of evidence include:

Documents are the most common type of evidence submitted to substantiate the assertions made in a application. However, documentary evidence may be supplemented with verbal evidence collected and documented by the decision maker during and following an interview with the applicant or with someone else who has relevant information.

Any evidence that is relevant must be considered during the process of making a decision on an application. Relevant means material to an officer’s decision. To determine if a piece of evidence is relevant, decide if it is related to an element that needs to be established by the applicant.

The burden of proof that all requirements are met rests with the applicant. The applicant is required to provide sufficient evidence to satisfy the decision maker that the requirements for the application have been met.

Note: Burden of proof is the responsibility of the applicant. They must establish that they meet the requirements of the category or program they are applying for. Standard of proof is the threshold that must be met for an officer to make a finding.

To identify the relevant evidence for each element, an officer should determine which document, statement or thing would lead them to believe a particular assertion or to accept a particular element as an established fact.

Assess the credibility of the evidence

For each element to be proven, an officer will need to determine if the evidence is sufficient to meet the standard of proof.

For each element (requirement), an officer should measure or weigh the available evidence to determine if they are satisfied that it is met. There are 2 fundamental questions to assist in the process:

Credible evidence refers to evidence that is inherently believable or that has been produced by a competent or reliable source. When reviewing evidence, an officer must consider the evidence and its source and determine if it is worthy of belief or confidence.

There is a presumption that facts or evidence presented by an applicant are true unless there is a valid and compelling reason to doubt the truthfulness or credibility of what is presented.

An officer must determine if a document lacks credibility to the point where it should not be taken into account or where its submission could be a negative factor in the decision. An officer should watch for the following when assessing the credibility of documentary evidence:

The following points can raise questions about the credibility of verbal evidence received during interviews, oral hearings or verifications:

The Federal Court has made it clear that, when assessing credibility, it is important to remember that all of the evidence, both oral and documentary, must be considered and assessed, not just selected portions of the evidence.

Where an officer has concerns about the credibility of evidence, and those concerns will factor into their decision, they must follow the guidelines for procedural fairness and provide the applicant with an opportunity to respond.

Determine the evidence’s probative value (weight)

When an officer is determining the probative value of evidence, they are assessing the capacity of that evidence to establish the fact that it is trying in prove.

Evidence that is indefinite, vague or improbable should be given less weight than evidence that is direct, detailed and unrefuted. For example, a person’s statement that they have never left Canada would be given little weight if stamps in their passport show entry into other countries.

When reviewing a document to determine its probative value, consider the following:

Note: Duplicates and photocopies are admissible and are to be treated as originals unless there is doubt as to the authenticity of the original, in which case the original can be requested for examination.

When assessing the probative value of verbal testimony, similar questions should be considered about the source:

Note: Speculation, meaning an assertion that may sound plausible but that is a mere guess, should be given no weight. Findings of fact cannot be based upon evidence that is the sheerest conjecture or the merest speculation, nor should the decision maker rely on their own speculation in making their finding.

Determine whether or not the evidence is sufficient

Once an officer has reviewed all of the relevant evidence, found it credible and determined its probative value, they must decide if the evidence is sufficient. The applicant need only satisfy an officer of the facts based upon a “balance of probabilities”. An officer must not be overly suspicious or doubting of the evidence presented. That approach is not consistent with the presumption of truth that underlies the process.

If the evidence is “more probable than not”, then the burden of proof is discharged and the officer can make a decision.

If the probabilities are equal or if, based upon a balance of probabilities, the evidence tips the scale more to the side described as “not probable”, then the burden of proof is not discharged.

Depending on the application category, an officer can make the final decision or determine that additional documentation must be requested from the applicant to resolve the doubt and help establish the facts.

Make a decision

An officer must now look at the established facts and decide if the facts demonstrate that the applicant meets the requirements as identified in Identify the requirement(s) that must be satisfied. If there is credible and persuasive evidence for each of the requirements, an officer may approve the application. If one of the elements is not met for any reason, an officer may not be able to approve the application depending on the weight attributed to the evidence.

In making the decision, the rules of procedural fairness require an officer to assess the evidence fairly. Fairness is achieved by following the steps outlined above, but it also means, among other things, doing so without bias. Bias is coming to a conclusion based upon a prejudice in favour of or against one thing, person or group instead of on the basis of the evidence presented.

Being fair also means that officers are not free to ignore evidence. All of the relevant evidence before an officer must be considered, and it must be considered fully, meaning that officers must take into account both favourable and unfavourable aspects of the evidence before coming to a conclusion.

Record your decision

Decision are recorded for reasons of justification, accountability, transparency, traceability and fairness. Reasons outline the rationale underlying the decision, as well as the facts and elements considered, and they provide an explanation for the decision. Should the decision be litigated, during the judicial review process, the Federal Court will review the decision-making process to determine whether it was well executed.

When an officer records their reasons, whether in notes to file, decision templates or letters, and in the Global Case Management System (GCMS), they should

The assessment is usually comprised of the following:

The summary of facts and analysis should include

Your conclusion should provide an answer or make a finding of fact for each issue.

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