Immigration Blog

In the case of Vavilov v. Registrar of Citizenship, the Supreme Court of Canada considered the judicial review of an administrative decision regarding the cancellation of Canadian citizenship. The central issue revolved around the interpretation of Section 3(2)(a) of the Citizenship Act, R.S.C. 1985, c. C-29, which outlines exceptions to the general rule that individuals born in Canada acquire Canadian citizenship by birth.

Vavilov, born in Toronto in 1994, was unaware that his parents, who posed as Canadians, were actually Russian spies. He considered himself Canadian, lived as a Canadian, and held a Canadian passport. In 2010, V’s parents were arrested in the United States for espionage, leading to Vavilov’s unsuccessful attempts to renew his Canadian passport. However, in 2013, he was issued a certificate of Canadian citizenship.

In 2014, the Registrar of Citizenship cancelled Vavilov’s certificate, relying on her interpretation of Section 3(2)(a). This section exempts children of foreign government representatives or employees in Canada from acquiring Canadian citizenship by birth. The registrar concluded that since Vavilov’s parents were representatives or employees of Russia at the time of his birth, the exception applied, rendering Vavilov ineligible for citizenship. Vavilov’s application for judicial review was initially dismissed by the Federal Court, but the Court of Appeal overturned this decision, deeming the Registrar’s decision unreasonable.

The Supreme Court, in a unanimous decision by Wagner C.J. and Moldaver, Gascon, Côté, Brown, Rowe, and Martin J.J., upheld the Court of Appeal’s decision, emphasizing that the Registrar’s interpretation of Section 3(2)(a) was unreasonable. Specifically, the Court found it unreasonable for the Registrar to apply the section to children whose parents had not been granted diplomatic privileges and immunities at the time of the child’s birth.

Beyond the specific case, the Court took the opportunity to address broader issues related to the judicial review of administrative decisions, referencing companion cases and acknowledging the need for clarification in the current legal framework. The Court highlighted two aspects requiring attention: the analysis for determining the standard of review and the application of the reasonableness standard.

The Court recognized that the promise of simplicity and predictability in the Dunsmuir v. New Brunswick framework had not been fully realized. It identified the existing contextual analysis as unwieldy and offering limited practical guidance, leading to confusion and debates over the appropriate standard. To address these challenges, the Court proposed a revised framework for determining the standard of review in cases involving administrative decisions.

The revised framework departs from existing jurisprudence in certain respects. It establishes a presumption that reasonableness is the applicable standard for all aspects of administrative decisions. The Court reasoned that when a legislature creates an administrative decision maker for a statutory scheme, it is presumed that the decision maker should interpret the law and fulfill its mandate. This presumption reduces the need for a contextual inquiry to identify the appropriate standard and simplifies the overall framework.

The Court emphasized that the presumption of reasonableness review could be rebutted in two situations: when the legislature indicates a different standard or when a statutory appeal mechanism is provided, signaling the intent for appellate standards to apply. In such cases, the court would apply the standard of correctness for questions of law and palpable and overriding error for questions of fact or mixed fact and law.

In conclusion, the Court dismissed the appeal, affirming that the registrar’s decision to cancel Vavilov’s certificate of citizenship was unreasonable. The decision not only clarified the specific citizenship issue at hand but also provided a revised framework for the standard of review in administrative law, aiming to bring greater coherence and predictability to this area of legal practice.

In the context of immigration cases, this revised framework introduces a more structured approach to judicial review. The presumption of reasonableness allows for deference to administrative decision-makers, acknowledging their expertise and fulfilling the legislative mandate. However, the exceptions ensure that the rule of law prevails in specific circumstances where a more stringent standard is necessary.

For immigration practitioners and applicants, this shift underscores the importance of understanding the nature of the legal questions involved in a case. While reasonableness review remains the general rule, a closer examination of statutory appeal mechanisms and the nature of legal questions is now crucial. Cases involving constitutional issues, fundamental legal principles, or jurisdictional disputes may be subject to a correctness review, emphasizing the need for precise legal arguments and a nuanced understanding of the law.