Could you provide the text or link or analysis to what you're referring to in the Vavilov case?
I'm not a lawyer and haven't read the entire decision. But the parts of it I have read emphasise that the standard of review is reasonableness, i.e. is the decision of the administrative decision-maker (visa officer) reasonable.
As I understand the point, 'reasonable' here is distinct from 'correct' under the law; reasonable is a far harder bar to meet when challenging, as - restating somewhat in my own language - the burden then changes to demonstrating that the decision was arbitrary, entirely illogical, etc.
You also state in somewhat strong terms that dual intent provisions do not 'preclude' entering with the intent to stay. But your own quote of the relevant text is
"Does not preclude" when combined with "if the officer is satisfied..." - if interpreted under a standard of reasonableness - would make this very hard to challenge. I.e. the officer has to be "satisfied" (with an implied burden of proof shift to the applicant to demonstrate they will leave Canada at the end of the authorized period of stay).
At any rate, this dime-store lawyering (referring to myself here) is probably irrelevant for the vast majority of those applying and getting refusals. Realistically, the timeframes in which to potentially appeal are long, costly, and with low chances of success - compared to the alternative of getting one's family sponsorship approved or improving one's "proof" of likelihood of leaving. (The Vavilov case was quite different as a refusal of citizenship and hence not really time-bound)
So for practical purposes, I think suggesting to applicants they have some realistic recourse when applying for a TRV risks misleading them and giving false hope.
"You also state in somewhat strong terms" I did not state: I simply quoted the law. IRCC clarifies the application of this provision on their website:
"The existence of 2 different intents is not, in itself, reason to refuse a temporary residence application. If the officer is satisfied that the applicant would leave Canada after their authorized stay, regardless of the outcome of any future potential permanent residence application, the temporary residence application may be approved.
The possibility that an applicant for temporary residence may, at some point in the future, be approved for permanent residence does not absolve the individual from
meeting the requirements of a temporary resident, specifically, to leave Canada at the end of the period authorized for their stay, in accordance with section R179."
Basically, the officer wants to know, if your PR application were to be refused or the final decision would come after the expiry of your legal stay, would you respect your visa conditions outlined in section R179? And of course, the burden of the proof always falls on the applicant. This is valid for all immigration applications.
"Could you provide the text or link or analysis to what you're referring to in the Vavilov case?"
I shared several links to give pointers on where to start researching. I think I've also mentioned that the decision has been cited more than 1,100 times, even in cases that have nothing to do with immigration. How it may apply to TRV refusals: a person who has applied and given substantial proof to the officer but this one does not provide a reasonable and clear answer for the refusal. They just use a refusal template and the applicant has to order notes and wait to know what may have been the reason. If this applicant had provided sufficient supporting documents and the refusal reasons clearly show that all proof was not properly evaluated by the officer, this is when the question of data analytics and the automation in the decision making is raised. In most cases, applicants do not know they can challenge a decision or do not know how to.*
You stated: "So for practical purposes, I think suggesting to applicants they have some realistic recourse when applying for a TRV risks misleading them and giving false hope."
I understand your point but this is not what this is about. Though an applicant may seek an appeal, it does not mean that it will be approved or that approval would definitively result in a change of decision which is what I wrote above.
I didn't ask the question to spark a debate. I thought the subject was interesting and worth acknowledging, thus why I asked if anyone had experience with such a case. Perhaps, some would be more receptive to hear or read the opinion of a lawyer on the application of the Vavilov framework to immigration applications. I found this article that aligns with my thoughts on the subject. An appeal or litigation does not mean that one will necessarily get the decision they want. See text quoted below.
The Vavilov decision mandates the IRCC Visa Officer to write decisions of refusal that are rational, intelligible and capable of review by a court. What this means on a practical level is that the Visa Officer can no longer simply tick a box on a standard form. They must now provide reasons that are rational and intelligible. From an administrative perspective this means that IRCC will have to update its computer system to allow a Visa Officer to provide more written reasons. IRCC will also have to re-train their employees on how to use the new system. This may take anywhere from a few months to a year. The current covid-19 crisis may very well delay implementation even further. Currently IRCC relies heavily on artificial intelligence to process visa applications. Canada has pioneered a highly efficient and advanced form of artificial intelligence system to process immigration applications.
Artificial intelligence in immigration processing does not mean that computers will refuse applications. What it means is that artificial intelligence programs will assist in granting more visas. A human still makes the final decision to approve a visa. However, flagged files and subsequent refusals will still have to processed by an IRCC Visa Officer. Currently when an officer refuses an application, they simply choose a paragraph from a drop-down menu on their computer and tick a box indicating the reason for the refusal. Vavilov changes this by stating that this method of existing refusal decisions is no longer legally defensible. The negative decision is susceptible to a successful challenge in Federal Court.
[...]
Please note that a successful litigation does not necessarily mean a visa will issue. There is never a guarantee that a visa will issue. Canadian immigration law and policy may change at any time with no notice and with retroactive effect. The Applicant takes this risk at all times. A successful litigation means the refusal is cancelled, and a new IRCC visa officer takes over the case, but the new officer may find a new reason to refuse the application. That is always a risk, in every case.
https://lawyer4u.ca/new-window-of-opportunity-for-challenging-immigration-decisions/
In summary, the Vavilov framework can be used when it comes to refusal reasons given by IRCC. As many refusals were directly or indirectly the result of automation in the process, the Vavilov decision gives an additional tool to applicants who were impacted.
I hope it's clear that I am not saying that all refusals are without merit.
* Here's a great podcast that goes into more detail about the impact of the decision on the standard of review (reasonableness). At the 23:06 mark, the lawyer (Deana Okun-Nachoff) talks about the impact of persisting discords happening in parallel cases where the applicant doesn't have the ability to demonstrate how it may affect his application because it's not in their file's notes. "It's an unfortunate thing because it does sometimes, in my view, mean that the decision-makers are kind of immunized against a more holistic look at the decision-making that they are doing on an ongoing basis and it [often] means that a lot of the costs of trying to get these incorrect decisions rectified is being born by the applicant, even though there might be a systemic issue that's underlying it all." Suffice to say there's more to this whole issue than just blaming the applicant for each refusal.
https://soundcloud.com/borderlinespodcast%2F35-the-implications-of-the-supreme-court-of-canada-decision-in-vavilov
