Date of Award
Canadian immigration law has traditionally relied upon broad grants of discretionary authority as a tool for immigrant application processing. Such authority has had two facets--a procedural aspect allowing for flexibility in methods and processes for handling applications, and a substantive aspect relating to actual decision making. This thesis examines such discretion in the particular context of the Independent category of migration that is provided for under the current Immigration Act and Regulations. This thesis argues that discretionary power has recently been significantly affected by two evolving trends. Hampered by fiscal constraints, the bureaucracy has sought to reduce usage of positive substantive discretion which, by its very nature, is a resource intensive processing tool. Conversely, since negative substantive discretion retains some functional benefits, not much official disdain has been focused upon it. Meanwhile, procedural discretion has been enhanced because of the resource savings it has delivered up. The courts, on the other hand, have worked to restrict negative substantive discretion while simultaneously guarding the fullness of its positive variant. These dual purposes are rooted in a traditional mistrust of discretionary authority and a modern trend to favour rights.
Philip Lupul, Use of Discretion in Independent Migrant Selection: A Study of Canadian Immigration Law, Policy and Practice (LLM Thesis, Dalhousie University, 1998) [unpublished].