20/07/2017 - Marisa Mastrogiovanni
This Week’s Success Story: Couple Reunites in Canada After Subsequent Refusals/Removal Order
Canadian Immigration Blog
Tightening the Safety Net on Refugee Claim Appeals
Last week, the Federal Court of Appeal clarified how the Refugee Appeal Division (RAD) should review Refugee Protection Division (RPD) decisions.
The RAD has, since the end of 2012, been considering appeals of RPD decisions on refugee claims. While the RAD was set up as the safety net that catches mistakes made by the RPD, be it on the law or the facts, uncertainty grew over the role of the RAD when it came to reviewing issues of fact or mixed law and fact.
At first, the RAD decision-makers operated under the assumption that it would review RPD decisions under a less stringent standard, termed reasonableness (a looser safety net). Since the RAD would only hold in-person hearings under certain circumstances, its members yielded to the RPD’s rulings on issues of fact and mixed law and fact – and particularly on issues of witness credibility. RAD members often felt that the failure to show deference to the RPD would undermine the RPD process.
In the 2014 decision, Huruglica v. Canada (Citizenship and Immigration Canada), the Federal Court determined that this approach was incorrect. The Court noted that the RAD, equipped with members who have equal or greater expertise than those on the RPD, was created to give claimants a full fact-based appeal. It must review all aspects of the RPD decision and conduct an independent assessment of the individual’s claim. If it were to defer to the RPD, the RAD process would mimic judicial review, effectively duplicating the work of the Federal Court (claims begin at the RPD, can be appealed to the RAD, and judicially reviewed by the Federal Court).
However, the Federal Court maintained that deference is still owed to the RPD under certain circumstances, for example, when a witness’s credibility is critical or determinative of the claim. In all other cases, the applicable standard of review for the RAD was correctness (the tighter safety net).
Last week, following an appeal by the Minister of Citizenship and Immigration, the Federal Court of Appeal upheld the Federal Court’s conclusion that the correctness standard applied. The Court of Appeal’s concluding paragraph summarizes the role of the RAD:
“I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable.”
If you would like to learn more about refugee claims and Canada’s asylum system, please click here.