Summary: Raj Sharma is discussing the difficulties in explaining the contradictions in Federal Court decisions. The decisions made by the Federal Court Judges can be inconsistent, and clients come to lawyers looking for certainty and strategies to win their case. However, the approach of various judges can be different, making it challenging to advise clients on their chances of winning. This is also a problem in explaining the discrepancies in approach between various Judges at the Federal Court. Federal Court practice is complex and even winning at the Court does not mean that the application will be ultimately granted.
How do you explain Federal Court decisions that seem to contradict one another? It's not easy. Clients retain our services given our litigation experience and record. A decision is made to challenge an overseas TRV refusal. We know from the case law that Officers in this regard have greater margin or deference than other decisions. That being said, an Officer must act reasonably and fairly. Getting leave is not easy and while we do win more than our fair share at the Federal Court, it's not always easy explaining the discrepancy in approach between various Judges at the Federal Court. Here's an excerpt of my discussion on this topic with Deanna and Steven in last months Borderlines podcast:
Steven: ...How do you advise clients on divergent case law? So if you see cases on, I don't know, proof of funds requirements for a study permit, whether the Bangladesh National Party is a terrorist organization and you see judges-
Deanna: 100%, yes.
Steven Meurrens: Yeah, exactly. You see judges going in different directions. How do you advise clients on this?
Raj Sharma: Well, I guess I can refer them to our firm's most recent reported federal court decision where we ran those same... For example, the salutary or positive jurisprudence on study permit refusals, Justice Sadrehashemi or Justice Ahmed or Justice [inaudible 00:02:17], for example, but I think it was Justice Bell, I believe. Basically, he put in two lengthy paragraphs notwithstanding able submissions of counsel, which is always... This is our new [inaudible 00:02:34]
Deanna: That's when you pat yourself on the back.
Steven Meurrens: Yeah, aside with the able submissions typically in this.
Raj Sharma: ... the justice went on ... It was Shahrukh Ali Khan is the name of the case, but he commented that the respondent pointed to these cases, the applicant pointed to these cases. Then basically he gave a summary of the federal court approach, which is the federal court, one decision does not necessarily bind another. So that's why you had the divergence in the case before.
Let's jump to citizenship. Before the two feet on the ground test of 1,095 days, we had this metaphysical test like, where's your soul?
Deanna: Where's your spirit? Yeah.
Raj Sharma: Where does your soul lie? You had a divergence in the case law, for example, of citizenship, which is a centralized mode of existence could qualify for the 1095 days or strict physical presence. So very odd situation that continued for many years with the federal court.
So yes, that is very true. That's a little bit disheartening because lawyers love precedent and people love certainty. So they come to us, they pay us many thousands of dollars and they want some sort of certainty, which is like what is the percent chances of winning, which I hate, which of course we always get probably three times a day. You can say that, look, I think we're okay, we've got the IELTS score. Let's talk about a study permit. We've got the IELTS score, we've got proof of finances, we've got a statement of purpose, and then all of a sudden the officer says, "Well, the statement of purpose is vague." Or "Why would someone come to Canada when there's locally available courses at a lower cost?"
Now this last is very problematic because for example, India has a far more developed post-secondary, postgraduate education system than Canada. Anything would be cheaper and available in India. Based on that, we should deny all study permanent applications from India. So you have these problematic decisions, you take it up and then all of a sudden you have standard review. Now notwithstanding Vavilov, [inaudible 00:04:58] and all of the cases from before, for a lot of judges, it's a smell test. For a lot of judges, they try to be a little bit more principle about it.
So you may not get leave even though you've got something that appears to be on all corners with another case. Even if you get leave, you might have some sort of justice that has a certain take on it, which is, and we've seen this, that overseas visa offices, given the volume of applications before them, should be given greater margin. So these are complex, it's tough for some lawyers to figure out. It's very tough to advise to a client that we think you have a decent chance of winning, but then it might go sideways and then even if you win, it goes back and it might be refused again. We get into some sort of ping pong match. So these are the vagaries of federal court practice. That's just the way the cookie crumbles.
Deanna: Yeah, I mean, I think that everything you're saying really resonates very much with me. I think for me, there's been clearly a great wave to bring in new faces on the bench, but the result has been that there is quite a divided bench.
Raj Sharma: There's a schism. Let's use the Orthodox and Latin church and whatever. There's a schism.
Deanna: Yes, please. While we have so much welcomed the addition of members of the bench who were once practicing immigration lawyers, I mean, you mentioned Madame Justice Saderhashemi, and I can't think of any major issue that is being litigated ad nauseum at federal court right now where there aren't two pretty divergent lines of jurisprudence developing.
Raj Sharma: This is why I welcome our AI overlords. I believe that question [inaudible 00:07:03] This is why I welcome our AI...
Deanna: It depends who's programming them, Raj. Which side of this schism are they going to be programming?
Raj Sharma: No, I'm thinking visa offices. So you have such discretion on a TRV application that honestly a little bit of AI intervention might be good because you are now seeing, for example, I don't know how many JRs I've done of truck drivers being refused [inaudible 00:07:35] states from massive trucking companies in Canada. We have divergence in terms of this language is not good enough. Well, it's good enough for PR, but it's apparently not good enough for a work member. Okay, let's deal with that. Oh, you know what...
Deanna: Similarly for cooks.
Raj Sharma: You've been driving a Qatar for 15 years, but you know what, you're unfamiliar with the weather trade and climate of Canada. Borderline racist and, based on that reasoning, I guess we're only going to get truckers from [inaudible 00:08:08]
Steven Meurrens: On that weather point, I remember in 2021, I think November, there were two federal court decisions released the same day, both involving applicants named Sin, where one judge said it's reasonable for a visa officer to determine essentially that someone who knows how to drive in a desert in a small country won't know how to drive in a bigger country that's a cold country. The other judge ruling that it's unreasonable for the visa officer to make that determination.
Raj Sharma: It almost harkens back to the guy that we've got on the $50 bill who said that Punjabis or Indians are unsuited for the climate in Canada.
teven Meurrens: There's multiple avenues where different personalities can impact the outcome of a judicial review. We just tell clients a lot can depend on who the judge is.
Deanna: Yeah, for sure.
Raj Sharma: The problem with judicial review, justice needs to be obtained at the first instance.
Deanna: For sure.
Raj Sharma: Judicial review is an exogenous ex post facto, after the fact forensic exercise, which attempts to determine whether the relationship or that decision can be upheld or not. Now, judicial review for an inside Canada decision from a tribunal such as the IRB, any of the tribunals of the IRB is a far different beast than judicial review of a decision made with respect to a foreign national who had either no expectation to come to Canada or very little expectations to remain in Canada. So even within judicial review or immigration litigation, one must make this sort of understand how these things work and how these things are looked at by a judge or a justice.
So now of course, practicing for 20 years and being at the federal court many times, I do have this sort of feeling of not disengagement, not disillusionment either. I don't want to give that impression, but judicial review is not really about justice. Judicial review is not really about getting things right. Judicial review is getting another crack at it. Then it depends on the visa office. Many times, I've now gone, I believe, maybe this is the record, I'm not sure. I've gone three or four times to federal court and succeeding every time on a refused visitor visa application. The visa office comes back with a refusal every other time. So it gets a little bit dispiriting at times.