I've commented previously on administrators' interpretations of their own regulations. In a recent Federal Court case, Moya v. Canada (Citizenship and Immigration), 2012 FC 971, the question of how reviewing courts should treat such interpretations arose again.
The applicants were members of a Colombian family, variously born in Colombia, the United States and Canada (having been bounced around the American and Canadian immigration systems). One of the family members had been granted asylum in Canada. The others applied for permanent residence in Canada on humanitarian and compassionate grounds, on the basis that this would be in the "best interests" of their young children.
Their application was refused. The immigration officer concluded that although the children would suffer "hardships" if they had to relocate to Colombia, these difficulties would not be disproportionate, unusual or undeserved.
The problem with this approach, Hughes J. observed, was that the internal guidelines which the immigration officer was applying make no reference to disproportionate, unusual or undeserved hardships. Concluding that the wrong test had been applied, Hughes J. struck down the officer's decision as unreasonable and remitted the file for reconsideration.
The case is a good example, then, of departure from guidelines justifying a conclusion that a decision was unreasonable. Just as well for the family that there was no question of the Federal Court applying a super-deferential standard like the Auer deference favoured by the American federal courts.
