Monday, 17 September 2012

Towards a Right to Respond in Immigration Law?

You know when academics say, "Some of my best ideas come from students"? Sometimes, we mean it.

A student I had a couple of years ago came to talk to me about procedural fairness in administrative law. "Why don't you focus more on the right to respond? We talk about hearings, the right to counsel, and so on, but to me the right to respond is fundamental".

The student was correct. Administrative lawyers don't think enough about the right to respond. Procedural protections are all about putting relevant information before the decision-maker. Once this is done, the use made of the information is a matter for, if anything, substantive review for reasonableness.

Otherwise (and I think this was my response at the time), you risk a sort of infinite regress, where a decision-maker takes a decision for Reason A, the individual responds, the decision-maker relies on Reason B, the individual responds, and so on. At some point, administrative law has to say "Stop".

I have been re-thinking this issue recently, in light of a paper I'm co-working on. In some contexts, a right to respond might be appropriate. One of these is immigration law, where vulnerable individuals, who often speak neither French nor English, collide with the federal bureaucracy.

Two recent cases suggest that something like a right to respond is edging towards becoming established in administrative law doctrine.

In Westmore v. Canada (Citizenship and Immigration), 2012 FC 1023, the English applicant, whose late life partner was Canadian, had previously been approved for permanent residency, but failed to engage properly with the authorities. His application lapsed. A subsequent application was refused, on the basis that the applicant had managed to maintain a happy social life in Canada even though he lived in England (strange and all as this may seem).

Ultimately, Russell J. held that there was no evidence to underpin the visa officer's inference that the applicant had a strong support structure in England. The decision was quashed -- one could say that there was an error of fact, insufficient evidence, or a failure to take into account a relevant consideration. In reality, though, this seems like a case where an applicant was not given a right to respond to concerns of the decision-maker. Had a right to respond been formally accorded, the applicant would presumably have pointed to evidence of the absence of a support structure in England (difficult and all as it would have been to prove this negative). You may not agree, but I suspect a right to respond was lurking underneath Russell J.'s conclusion.

A second case is Bhagria v. Canada (Citizenship and Immigration), 2012 FC 1015. Here, there was some dispute as to whether an adoption certificate issued by an Indian government agency was genuine. The visa officer determined that it was obtained by fraudulent means and refused the adopted child's application for permanent residence. While the Canadian officials had given the applicant some opportunity to respond to concerns about the validity of the certificate, it was insufficient:
[59]           Shortly after receiving this procedural fairness letter, Mr. Bhagria visited the CARA office to inquire about the NOC. He then proceeded to the Canadian High Commission where he spoke with Officer Keshub. After their discussion, Officer Keshub sent the officer an email summarizing Mr. Bhagria’s concerns. Officer Keshub noted Mr. Bhagria’s statement that he had spoken with Ms. Singh at the CARA office. Ms. Singh had informed him that the NOC was issued in error as it was in fact intended for another child, other than the principal applicant. However, Officer Keshub noted that CARA’s reply email to the NOC verification inquiry did not indicate that CARA issued the NOC in error. Rather, it had said that the NOC was not authentic and not issued by CARA. Later, when Mr. Bhagria returned to the Canadian High Commission and requested a meeting with the officer, the officer denied his request.
[63]           I question Officer Keshub’s finding that CARA’s brief email did not support Mr. Bhagria’s allegation. Although CARA’s email did not specifically state that it issued the NOC in error, it did say that the Committee had not approved the principal applicant’s NOC. If, as Mr. Bhagria stated, the NOC had been incorrectly issued for the principal applicant when it was in fact intended for another child, then the Committee would not have approved the principal applicant’s NOC. Thus, there are two possible interpretations of CARA’s email: one being that the NOC was fraudulent and the other being that the NOC was mistakenly issued by CARA. Without inquiring further, the officer’s understanding was limited to Officer Keshub’s interpretation as provided in the email. As such, the applicants were denied full and fair consideration of their evidence by the officer.
Here, the duty imposed by O'Keefe J. was in the nature of a duty to investigate. Indeed, this duty goes even further than simply granting a right to respond, but it is of the same genus.

In any event, these two recent cases give some support to the suggestion that there are situations in which more robust participatory rights might be appropriate.

EDIT: I had Justice O'Keefe's name wrong first time out. The additional 'F' has now been removed.