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

• Government action must be grounded in lawful authority.
• The law is supreme over the acts of both government and private persons.
• “An actual order of positive laws” must be created and maintained.

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.

On this page

• Standard of review
• Decision-making process
  • Identify the requirement(s) that must be satisfied
  • Identify the facts to be proven
  • Apply the appropriate standard of proof
  • Identify the relevant evidence
  • Assess the credibility of the evidence
  • Determine the evidence’s probative value (weight)
  • Determine whether or not the evidence is sufficient
  • Make a decision
  • Record your decision

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.

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

• based on internally coherent reasoning
• justified in accordance with the legal and factual context of the decision

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.

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:

• documentary evidence – any evidence in the form of documents, usually writings on paper (such as an invoice, a contract or a will), but also any media by which information can be preserved and transmitted, such as photographs, tape recordings, films and printed e-mails
• physical evidence – an object other than a document; this could include evidence that the person is physically in Canada, observation of the person on a construction site with a tool belt on and tool in hand as proof of work, or DNA evidence to prove a relationship
• verbal evidence – evidence given in person or over the telephone; this could include information obtained by a Canada Border Services Agency officer during an interview (questions and answers) that is later documented in the officer’s notes or in an affidavit

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.

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:

• The first question relates to whether the evidence is credible. Is the evidence believable or reliable? Why? An officer should be able to rationally state why 1 piece of evidence is acceptable or unacceptable.
• The second question the officer must ask is, if the evidence is credible, what is its probative value? How strong or persuasive is the evidence?

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:

• inconsistencies or spelling mistakes (especially if the document purports to be an official document)
• incompleteness, including whether or not the document has been properly signed and dated
• inconsistencies between the document in question and other reliable information
• the presence of bias
• indications of alterations or forgery
• indications that the document has been fabricated
• damage to the document that reduces its legibility

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

• contradictions or inconsistencies – The discrepancies must be sufficiently serious and concern matters that are relevant to the requirements to warrant an adverse finding. They must be based on real contradictions or discrepancies that are of a significant or serious nature.
• incoherence, vagueness or lack of detail – Adverse findings must take into account the background and personal characteristics of the person making the statements and the level of coherence, specificity or detail that could reasonably be expected.
• general demeanour – This involves assessing the manner in which the person replies to questions. This includes their facial expressions, tone of voice, physical movements, general integrity, intelligence and powers of recollection. Demeanour is a much less direct indicator of credibility and, therefore, conclusions about credibility on this basis must be made with caution. Generally, demeanour is one of several indicators of a lack of credibility.

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:

• How directly does it relate to the issue?
• Is it the best document available?
• Has it been issued by an objective authority?
• Has it been issued by a person or an entity that has the authority to issue the document in question?
• Has it been issued by a person or an authority that has no vested interest in the outcome?
• Is it either the most recent document or the document closest in time to the event being asserted?
• Does the issuing authority have a history of reliability?
• Is the information in the document verifiable?
• What were the circumstances under which the document was created?
• Who is the author (for example, qualifications, expertise, reputation) and what is the source of the information?
• To what extent is the document based on observable facts or opinion?

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

• Does the source have a vested interest in the outcome?
• Does the source have first-hand knowledge versus indirect or hearsay information?
• Is the information offered corroborated by other evidence or consistent with other established facts?
• Is the information offered detailed, specific, complete and precise?
• Does the information offered relate directly to the issue at hand?

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

• use neutral, unbiased and comprehensible language
• proof read the notes, as various errors (for example, factual, typographical) could cause the reviewing court to question a decision maker’s accuracy and reliability on more substantive issues
• refer to all dates in chronological order and provide other details, such as new evidence, etc.
• ensure that all critical issues have been addressed and assessed; include the assessment of the facts and evidence relied upon, the applicable legislative provision(s), and the reasoning. Not every piece of evidence has to be addressed; however, failure to address key issues or central arguments may call into question whether a decision maker conducted a thorough assessment of the evidence
• undertake a final review of the notes to ensure that their analysis supports the conclusions and are internally consistent

The assessment is usually comprised of the following:

• summary of facts or evidence
• analysis
• conclusion

The summary of facts and analysis should include

• the context of the issues
• the requirements and a brief overview of applicable legislation and any relevant policies or guidelines
• a list of all documents provided or consulted
• the facts taken into consideration (or discarded), and why
• a summary of the allegations and evidence, including extrinsic evidence
• a discussion of why one interpretation is favoured over another
• a reference to specific documents and important evidence
• text that highlights any contradictions, implausibilities and omissions

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