Back

In a rare decision, Alsaloussi v. Canada (Attorney General)[1], the Federal Court recently quashed a decision of the Passport Division of Immigration, Refugees and Citizenship Canada revoking the applicant’s passport services for a period of three years on the basis that such decision was unreasonable.

In 2018, the Applicant completed a passport application in which the Passport Division alleged that he made a false or misleading representation. The Passport Division found this to be a violation of the Canadian Passport Order, ordered the revocation of the Applicant’s passport and issued a 3-year suspension of passport services.

The Applicant sought judicial review of the Decision on several grounds.  The court agreed that the decision to revoke passport services for a period of 3 years did not meet the standard of reasonableness. Specifically, the court did not see how this decision could be justified in light of the evidence and how it could further the objectives of the Passport Program.

The judge based this conclusion on two grounds:

• Firstly, the decision maker ignored the substantial evidence before him that the Applicant needed his passport for his work and for health reasons:

I cannot find in the Decision’s reasons an indication that the Passport Division engaged in a meaningful way with the evidence showing the adverse impact of the suspension on Mr. Alsaloussi’s work.

While the decision maker’s written reasons must not be assessed against a standard of perfection, certain omissions may lead the reviewing court to infer that the decision maker disregarded certain facts:

The failure to consider specific evidence must be viewed in context and may be sufficient to a decision being overturned when the non-mentioned evidence is critical, contradicts the decision maker’s conclusion and reviewing court determines that its omission means that the tribunal disregarded the material fact before it.

…

[The written reasons] need to be comprehensible and justified. And the failure to meaningfully grapple with key issues or central arguments raised by a party may call into question whether the decision maker was actually alert and sensitive to matters before it and whether the decision exhibits the required  degree of justification, transparency and intelligibility . A reviewing court must also be satisfied that any alleged shortcomings or flaws relied on by the party challenging a decision are sufficiently central or significant to render the decision unreasonable … Here, I find that this is a situation where, on a determinative issue, there is a flawed logical process by which the facts were drawn from the evidence, as the Decision-Maker failed to account for relevant evidence and made a finding that ignored the overwhelming weight of the evidence .

• Secondly, the judge concluded that the decision maker had not sufficiently balanced the objectives of the passport program and the hardship caused by a refusal of passport services in the Applicant’s personal circumstances. The Court held that the decision maker:

failed to balance [the Applicant’s] particular situation against the objectives of Canada’s Passport Program, and the reasons do not allow me to understand the causal link between the choice of the three-year suspension and the need to preserve the integrity of the Canadian passport system and other elements of the Passport Division’s mandate.

For the court, “matters where suspensions of three and a half to five years of passport ineligibility have been imposed involved some form of misconduct that was far more serious than Mr. Alsaloussi’s case … the required causal link between the three-year suspension and the objectives of protecting the integrity of Canada’s Passport Program and the good reputation of Canada’s passports had to be more explicitly explained for me to conclude that the Decision was reasonable”.

The fact that the Applicant had been able to obtain limited passport services for urgent, compelling and compassionate reasons did not mitigate the severity and the impact of the sentence on the Applicant’s mobility right.

Conclusion

The court, applying Vavilov, held that the omitted aspect of the analysis caused it to “lose confidence in the outcome reached” and, for this reason, the application for judicial review was granted.

This judgment is amongst the first decisions of the Federal Court to apply the analytical framework elaborated by the Supreme Court of Canada in Vavilov in the context of an application for judicial review. It is also one of a handful of cases where a passport holder was successful in challenging an order of the Passport Division. It confirms that while a decision-maker’s written reasons are not to be judged on a standard of correctness, they must demonstrate consideration of key evidence and a rational link between the evidence, the decision-maker’s reasoning and the decision reached. Failure to do so can lead to a conclusion that the decision maker’s decision was unreasonable[2].

[1] Alsaloussi v. Canada (Attorney General), 2020 FC 364.

[2] The author is counsel to the applicant. The decision is still subject to a right of appeal.