Chapter CP 2 - Decision Making

Section 1 - General policy on decision-making

1.1 This section is about

This section is about decision-making procedures and rules of natural justice.

1.2 Authorities

1.3 Concepts

When citizenship judges make a decision they must be sure that:

• they have the legal authority to make the decision
• the decision follows the administrative law principles of natural justice and procedural fairness

1.4 Administrative law

Administrative law is:

• the legal principles relating to the government's powers and organization
• the legal control of the government's actions and decisions.

1.5 Administrative law:

Ensures there is a legal basis for any action by a government representative, such as a Citizenship judge. It sets standards that government officials must meet in making decisions about individuals.

The Citizenship Act

1.6 Powers granted by the Citizenship Act

The Citizenship Act gives many powers, such as the powers to grant citizenship and issue certificates of citizenship.

Section 23 of the Citizenship Act says the Minister can delegate those powers to those responsible for applying the law. The delegation of authority must be in writing.

As a matter of policy, the power to determine citizenship status and to grant, retain, renounce, or resume citizenship, is only delegated to Canadian citizens.

1.7 Appeal

The Act authorizes an appeal of the decision of a citizenship judge to the Federal Court of Canada - Trial Division. Appeals are generally trial de novo. This means that the Federal court judge decides if the decision was correct on the basis of the evidence. This may include completely new evidence not seen by the citizenship judge. The Federal Court of Canada amended its Rules in 1998. These new rules treat citizenship appeals in a similar manner to applications filed under Judicial Review. Under the new rules, the Federal Court judge may review the citizenship judge’s decision without allowing the citizenship applicant to submit new evidence. In other words, under the new rules, a citizenship appeal is not necessarily treated as a trial de novo. When the Federal Court hears an appeal, it:

• examines the merits of the decision;
• determines whether it was the correct decision.

See chapter 8, Appeals

Applying the Act and examining the facts

1.8 Steps in making a decision

Section 14 of the Act gives the judge authority to consider certain citizenship applications.

There are three steps in making a decision on a citizenship application:

• the judge must determine whether the applicant meets the requirements of the Act;
• if not, the judge must decide whether to recommend an exercise of the Minister's discretion under Sub-section 5(3) or to recommend a grant pursuant to Section 5(4);
• if the judge decides not to make a recommendation, he or she must not approve the application.

The judge must bear in mind not only the Act's provisions, but also the Federal Courts' interpretations of those provisions.

1.9 Period of time

A citizenship judge has 60 days to make a decision.

1.10 Burden of proof

Unlike the criminal law standard of proof "beyond a doubt," citizenship proof is the civil law standard-"balance of probabilities."

It is up to applicants to demonstrate that the balance of probabilities indicates that they meet the requirements of the Act.

Natural justice and procedural fairness

1.11 Decision-maker

It is an administrative law principle that, in the absence of a legislative provision to the contrary, the decision-maker is master of the decision-making process.

Depending on the nature of the decision, a fairly high degree of procedural fairness is required. A decision likely to affect the rights of an individual (for example, deportation), requires more procedural guarantees than a decision that does not affect an individual's status.

1.12 Method can be more important than decision

In administrative law, the way a decision is made is often more important than the decision itself. Consequently, the decision-maker (the Citizenship judge) always has a duty to act fairly and in accordance with the principles of natural justice.

1.13 Basic elements of natural justice

The duty to act fairly includes rights and obligations that must be observed.

The two basic elements of natural justice are

• the right to be heard, and
• impartiality.

1.14 The right to be heard

The first principle of natural justice is the right to be heard.

If a decision might affect an individual, the individual must have a chance to be heard.

While the right to be heard implies a hearing, it does not always mean an oral hearing. Submissions can be made in writing. This procedure is known as a file hearing.

1.15 Rules must be observed

In both oral and file hearings, certain rules must be observed before making a decision.

1.16 "Whoever hears the parties makes the decision."

It is up to whoever examines the evidence and documents submitted to make the decision..

1.17 Exception

There is one exception that is frequent in government: one person reads, hears and evaluates all the pertinent information and then submits a report to another official who makes the decision. This exception is allowed as long as the decision-maker takes all the information into account. An example of this is found in the citizenship process. Officers gather information, administer citizenship tests and then provide the material evidence to a citizenship judge.

1.18 Key Duties of Citizenship Officer

A. The officer evaluates the documentation and information gathered and recorded by him or herself and by others (CPC Sydney, Immigration, etc.)

B. The officer must ensure the evidence is satisfactory to him or herself before submitting the file to a judge. In other words, the evidence necessary to grant citizenship must be available to the officer

C. An officer submits the file to the judge only when there is enough evidence on file to allow the judge to make a decision. The officer may request more information or evidence from the client when it is not clear that the subject has complied with regulatory requirements

D. The officer ensures all evidence is available to the judge. The file must contain any relevant information gathered by CIC in its investigations such as records of conversations with port of entry officials regarding a client’s immigration status or residence in Canada

E. The Officer must make a decision about the grant of citizenship based on the judge’s determination. The citizenship officer refers the file to Case Management Branch (Litigation Management) if the officer believes the Minister may wish to exercise her right of appeal.

1.19 All the evidence must be heard

The judge must take all pertinent information and evidence into account, no matter how extensive.

The judge must assess the applicant's credibility and may require additional documentation to support certain statements, such as a claim of residence in Canada during the four years preceding the application

If the evidence is rejected because of a lack of credibility, the decision must give the reasons.

1.20 Applicant submits evidence

The decision must be based on the evidence submitted by the applicant. Citizenship judges have the authority to request more evidence.

Keep in mind, it may be considered unfair to base a decision on information that the applicant has not had an opportunity to comment on.

1.21 Must give reasons for decision

The decision-maker must justify the decision.

This means that the parties should receive a clear explanation of the reasons for the decision, how it was reached, and the evidence that was taken into account.

Section 15 of the Citizenship Act says there is an obligation to give reasons for a decision when a Citizenship judge non-approves an application.

Failure to give reasons for a decision when the law requires reasons for a decision may result in reversal of the decision.

Properly justifying a decision makes it possible to inform the applicant of the reasons for the decision. It also makes it possible for the applicant to consider whether or not to appeal the decision.

1.22 Giving reasons cannot be delegated

The judge who makes the decision must give the reasons for the decision.

This cannot be delegated.

1.23 Bias

An applicant has the right to a fair and impartial hearing and a fair and impartial decision-maker.

The applicant does not have to prove that the decision-maker was biased. The mere possibility of bias may be enough to show bias.

1.24 Personal bias

Decision-makers must not allow personal beliefs or interests influence their decisions.

1.25 Types of bias

The following are examples of situations that may show bias.

• commenting on a question before the hearing;
• attitudes revealing prejudices; the application must be studied impartially and without regard to what the decision-maker considers to be a good citizen;
• prior involvement in the case;
• a relationship between the decision-maker and one of the parties;
• marked hostility toward one of the parties;
• possibility of financial benefit from the outcome of the proceedings.

1.26 Deal with each case on individual basis

Examine each case on an individual basis. Circumstances that are bias in one case may not be bias in another case.

Content of the decision

1.27 Give reasons for decision

When the judge not approves an application, the judgment:

• tell the applicant that the application is not approved
• give full reasons for the decision
• present the reasons for the decision so the applicant or the Minister of Citizenship and Immigration can decide whether to appeal the decision.

1.28 What to include in justifying the decision

The decision must include:

• the facts
• an analysis of the facts
• the deductions from the analysis

1.29 Conclusion not enough

Giving a conclusion and repeating the criteria set out in the Citizenship Act is not enough.

The arguments and the evidence must be discussed.

The judge must then show why the decision was made, and state the evidence supporting the decision.

1.30 Elements of a decision to refuse citizenship

The following are the elements of a decision to refuse citizenship:

• a summary of the evidence considered;
• the evidence rejected (if applicable), and reasons for rejecting the evidence;
• findings of fact (evidence);
• an explanation of the findings and how they relate to the requirements of the Act;
• show that the applicant has been given the two options open to him or her:
  • submit a new application when the applicant believes that he or she meets the requirements of the Act
  • appeal the decision to the Federal Court-Trial Division within 60 days of being notified of the decision