Yeah I knew this would get posted… It’s rage bait.
The court’s decision:
https://canlii.ca/t/kg9mq
He was convicted. He was deemed inadmissible and he was ordered deported. Nine of those things are being argued.
He filed an appeal on humanitarian and compassionate grounds, a ‘hail Mary’ last step in the deportation process.
What happened here is that the Immigration Appeal Division - the administrative decision maker - reached a decision that’s within their authority but failed to show their work. Because their work was sloppy, the court has told them to do it again. The court has NOT reversed the final decision and ordered that he gets to stay in Canada no matter what immigration says.
When someone wants to challenge and administrative decision from a tribunal, once administrative appeals are exhausted they ask for “judicial review”. That’s the court taking a look at the situation. The court gives a lot of deference to the administrative decision maker. Courts don’t decide “what decision would we make?” but rather “is the decision be they could reasonably have made on the evidence?” There can be a wide range of reasonable decisions.
But, for the court to decide that, the decision maker has to show their work in the written decision and has to articulate their reasoning enough for the court to see why they reached the decision they did. This includes visibly engaging with all the relevant considerations. In this case the decision maker failed to do that. Because they couldn’t say “we considered the best interests of the children” and “we considered the parole board assessment”, and then explain their engagement with those two things, the court is unable to conclude the decision itself was reasonable- the receipts aren’t there. As federal court says in concluding the introduction: “While the IAD may have come to the same determination after considering the above-noted evidence, it is not for this Court to speculate as to the outcome. The matter is therefore remitted to the IAD for redetermination.”
The IAD now gets to reassess its decision, and will have to better articulate the “why?” it arrives at the decision it makes. Administrative decision makers need to ‘court proof’ their decisions in large part by showing their work.
Incidentally, for CAF members, this is the same sort of process when a grievance goes all the way past all administrative levels and goes to judicial review- same decision for the courts to make on “the as the decision reasonable, and was it arrived at with a reasonable process?” This is why for instance a CAF leader making decisions on remedial measures or release needs to take good notes and create a good written record of how each decision is reached.
Now, I’m not an administrative law guy and maybe our army.ca in house counsel will be along to correct some or all of this, but from looking at the decision I’m pretty sure I got it right.
www.politicalcompass.org
