2016 FCA 93, 2016 FCA 93
Opinion
[2016] 4 F.C.R. 157 A-470-14 2016 FCA 93 The Minister of Citizenship and Immigration ( Appellant ) v. Bujar Huruglica, Hanife Huruglica, Sadije Ramadani ( Respondents ) and Canadian Association of Refugee Lawyers and Canadian Council For Refugees ( Interveners ) Indexed as: Huruglica v. Canada (Citizenship and Immigration) Federal Court of Appeal, Gauthier, Webb and Near JJ.A.—Toronto, September 29, 2015; Ottawa, March 29, 2016.
Citizenship and Immigration — Immigration Practice — Immigration and Refugee Board, Refugee Appeal Division (RAD) — RAD’s role on appeal — Appeal from Federal Court decision allowing respondents’ judicial review of RAD decision dismissing appeal from Refugee Protection Division (RPD) decision rejecting respondents’ refugee claim — RAD determining that reasonableness standard of review applying to appeal from RPD’s decision — On judicial review, Federal Court holding that RAD’s conclusion as to role on appeal reviewable on standard of correctness — Also holding that RAD erring in applying standard of reasonableness to review RPD’s decision — Federal Court certifying question as to scope of RAD’s review when considering appeal of RPD decision — Issues: (1) standard of review to be applied herein, particularly regarding certified question; (2) standard of review Federal Court should have applied to issue before it; (3) whether Federal Court properly applying standard, i.e. whether RAD making reviewable error in defining scope of review when considering appeal of RPD decision — Supreme Court of Canada confirming in Kanthasamy v.
Canada (Citizenship and Immigration) that despite fact question certified under Immigration and Refugee Protection Act, s. 74 (
d) may be of general importance to refugee law system, not a type of question that falls within the exceptions to the application of the standard of reasonableness — For standard applied to certified questions to be changed, necessary for legislator to amend Act — Federal Court Judge choosing wrong standard of review; misconstruing limited exceptions where standard of correctness may be applied — RAD properly finding that neither Act, ss. 110 , 111 nor legislation as whole pointing to need to show deference to RPD’s findings of fact — RAD’s role being to intervene when RPD wrong in law, in fact or in fact, law, i.e. correctness standard of review — RAD required to carry out own analysis of record to determine whether RPD erring — Only when RAD cannot provide final determination without hearing oral evidence presented to RPD that matter can be referred back to RPD for redetermination — In present case, RAD erring by applying standard of reasonableness to RPD’s analysis — Appeal dismissed.
This was an appeal from a decision of the Federal Court allowing the respondents’ application for judicial review wherein the respondents were contesting the validity of the decision of the Refugee Appeal Division (RAD) of the Immigration and Refugee Board. The RAD dismissed the respondents’ appeal from a Refugee Protection Division (RPD) decision rejecting their refugee claim. The respondents, citizens of Kosovo and Muslim, claimed that their lives were threatened by an Islamic extremist group and that the local police were unresponsive to their requests for help.
The RPD rejected their refugee claim on the basis that, among other things, they had not satisfied their burden of providing clear and convincing evidence to rebut the presumption that state protection would be forthcoming to them in Kosovo. As for the RAD, it found that there was no need to deal with the alleged error in the assessment of the respondents’ credibility since in its view the decision of the RPD regarding state protection was reasonably open thereto and was sufficient to dismiss the respondents’ claims.
To reach its conclusion, the RAD determined the standard of review that applied to the appeal from the RPD’s decision, concluding that the appropriate standard of review was that of reasonableness. On judicial review, the Federal Court held that the RAD’s conclusion as to its role on appeal was reviewable on the standard of correctness. It also held that the RAD had erred in applying the standard of reasonableness to its review of the RPD’s decision.
It added that the RAD is required to conduct a hybrid appeal: it must review all aspects of the RPD’s decision and come to an independent assessment as to whether the claimant is a Convention refugee or person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. The Federal Court Judge (Judge) certified the question as to what is the scope of the RAD’s review when considering an appeal of an RPD decision.
The issues were: what was the standard of review to be applied herein, particularly regarding the certified question; what was the proper standard of review to be applied by the Federal Court Judge to the issue before him; and whether the Judge properly applied this standard, that is, whether the RAD made a reviewable error in defining the scope of its review when considering an appeal of an RPD decision. Held , the appeal should be dismissed.
The Court focussed on the RAD’s decision to determine if the Judge chose the appropriate standard of review on judicial review for the issue before him and if he applied it correctly. The Court’s decision in Kanthasamy v. Canada (Citizenship and Immigration) was relied on to argue that the Court should give the correct answer to questions that have been certified under subsection 74 (
d) of the Immigration and Refugee Protection Act ; however, the decision was reversed by the Supreme Court of Canada, which confirmed that despite the fact that a certified question may be of general importance to the refugee law system, it is not a type of question that falls within the exceptions to the application of the standard of reasonableness. While the legislator is empowered to set the standard of review that it wants to see applied to questions certified pursuant to subsection 74(
d) of the Act, this must be done very clearly. Thus, should the legislator wish to continue the system that was in place before Kanthasamy , it would be required to amend the Act and clarify its intention that certified questions be reviewed on a standard of correctness.
The Federal Court Judge chose the wrong standard of review and misconstrued the limited exceptions where the standard of correctnessmay be applied. It could not be concluded that a question of law involving the
interpretation of an administrative body’s home statute soas to determine its appellate role has any precedential value outside of the specific administrative regime in question. Defining the scopeof the RAD’s appellate function (or its standard of review) must be within the RAD’s expertise. The issue before the Federal Court Judgewas not a question of true vires. Moreover, the Supreme Court made it clear in Kanthasamy that a question of general importance to therefugee law system does not fall under any of the other exceptions to the standard of reasonableness set out in Dunsmuir v. NewBrunswick.
Therefore, the Federal Court Judge erred in his selection of the standard of review applicable to the case before him. Theproper standard should have been that of reasonableness. A statutory
interpretation analysis was conducted to determine whether the RAD made a reviewable error in defining the scope of itsreview in this appeal from the RPD’s decision. Sections 110 and 111 of the Act deal with appeals from the RPD to the RAD. The RADproperly found that neither
section 110 or 111 nor the legislation as a whole point to the need to show deference to the RPD’s findings offact. Rather, they evidence the legislator’s intent that the RAD bring finality to the refugee claims’ determination process. Paragraph111(2)(
a) indicates in particular that the RAD does not need to defer for factual findings and it does not distinguish between errors of law,fact or mixed fact and law. It simply requires that the RPD’s decision be “wrong in law, in fact or in mixed law and fact” (in French,“erronée en droit, en fait ou en droit et en fait”). As for paragraph 111(2)(
b) of the Act, it provides that once an error has been identified(paragraph 111(2)(a)), the RAD may refer the matter back for redetermination with the directions it considers appropriate only in certainstipulated situations wherein it is unable to make a determination about the RPD’s decision without hearing the evidence presented to theRPD. This possibility acknowledges the fact that in some cases where oral testimony is critical or determinative in the RAD’s opinion,the RAD may not be in a position to confirm or substitute its own determination to that of the RPD.
There was no indication in thewording of the Act, read in the context of the legislative scheme and its objectives, that supported the application of a standard ofreasonableness or of palpable and overriding error to RPD findings of fact or mixed fact and law. The RAD’s role is to intervene whenthe RPD is wrong in law, in fact or in fact and law. This translates into an application of the correctness standard of review. If there is anerror, the RAD can still confirm the RPD’s decision on another basis.
It can also set it aside, substituting its own determination of theclaim unless it is satisfied that it cannot do either without hearing the evidence presented to the RPD (Act, paragraph 111(2)(b)). Also, anappeal before the RAD is not a true de novo proceeding, wherein the second decision-maker starts anew.
Based on an analysis of the Act’s legislative evolution and history, the RAD was essentially viewed as the safety net that would catch allmistakes made by the RPD, be it on the law or the facts, which confirmed the conclusion that the legislator intended the RAD to reviewthe RPD decisions on the standard of correctness.
In conclusion, on the basis of this statutory analysis, with respect to findings of fact (and mixed fact and law), such as the one involved inthis case, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard.Thus, after carefully considering an RPD’s decision, the RAD carries out its own analysis of the record to determine whether the RPDerred. Having done this, the RAD must then provide a final determination either by confirming the RPD’s decision or setting it aside andsubstituting its own determination of the merits of the refugee claim.
It is only when the RAD is of the opinion that it cannot providesuch a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD forredetermination. No other
interpretation of the relevant statutory provisions is reasonable. Therefore, in this case, the RAD erred byapplying the reasonableness standard to the RPD’s analysis of the objective evidence regarding state protection and to its conclusionthereon. STATUTES AND REGULATIONS CITED Balanced Refugee Reform Act, S.C. 2010, c. 8. Bill C-280,
An Act to Amend the Immigration and Refugee Protection Act (coming into force of sections 110, 111 and 171), 39th Parl.,2nd sess., 2007. Commissioner’s Standing Orders (Grievances and Appeals), SOR/2014-289, ss. 18, 33. Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 147(5). Immigration Act, R.S.C., 1985, c. I-2, ss. 67–69.1. Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(2), 25, 67, 72, 74, 110, 111, 153(4), 162, 165, 170, 171, 175(1). Immigration and Refugee Protection Regulations, SOR/2002-227, art.159.91. Protecting Canada’s Immigration System Act, S.C. 2012, c. 17.
Refugee Appeal Division Rules, SOR/2012-257, r. 3(3)(g). Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10. CASES CITED APPLIED: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909, revg 2014 FCA 113, [2015] 1 F.C.R. 335;Spasoja v. Canada (Citizenship and Immigration), 2014 FC 913, 464 F.T.R. 160. CONSIDERED: Newton v. Criminal Trial Lawyers’ Association, 2010 ABCA 399 , 493 A.R. 89; Canada (Public Safety and Emergency
Preparedness) v. Tran, 2015 FCA 237, [2016] 2 F.C.R. 459; BC Society for the Prevention of Cruelty to Animals v. British Columbia(Farm Industry Review Board), 2013 BCSC 2331, 67 Admin. L.R. (5th) 152; Cartier v. Canada (Attorney General), 2002 FCA 384,[2003] 2 F.C.R. 317. REFERRED TO: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1S.C.R. 339; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3S.C.R. 708; Housen v.
Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Halifax (Regional Municipality) v. United Gulf DevelopmentsLtd., 2009 NSCA 78, 280 N.S.R. (2d) 350; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011SCC 61, [2011] 3 S.C.R. 654; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559;McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; Smith v. Alliance Pipeline Ltd., 2011 SCC 7,[2011] 1 S.C.R. 160; Canadian National Railway Co. v.
Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135; Alvarez v.Canada (Citizenship and Immigration), 2014 CF 702 , 2014 FC 702; Yetna v. Canada (Citizenship and Immigration), 2014 FC858, 463 F.T.R. 128; Bahta v. Canada (Citizenship and Immigration), 2014 FC 1245, 32 Imm. L.R. (4th) 173; Sow v. Canada(Citizenship and Immigration), 2015 FC 295, 472 F.T.R. 303; Bellingy v. Canada (Citizenship and Immigration), 2015 FC 1252; Canada(Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; Djossou v.
Canada(Citizenship and Immigration), 2014 FC 1080, [2015] 3 F.C.R. 664; Akuffo v. Canada (Citizenship and Immigration), 2014 FC 1063, 86Admin. L.R. (5th) 112; Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, [2016] 4 F.C.R. 230. AUTHORS CITED Atkinson, Ken. The Refugee Appeal Division: Presentation to the Toronto Regional Consultative Committee, February 5, 2014[unpublished]. Canada. Parliament. House of Commons Debates, 39th Parl., 1st Sess., Vol. 141, No. 122 (March 2, 2007). Canada. Parliament. House of Commons Debates, 40th Parl., 3rd Sess., Vol. 145, No. 033 (April 26, 2010). Canada. Parliament.
House of Commons Debates, 41st Parl., 1st Sess., Vol. 146, No. 090 (March 6, 2012). Canada. Parliament. House of Commons Debates, 41st Parl., 1st Sess., Vol. 146, No. 094 (March 12, 2012). Canada. Parliament. House of Commons. Standing Committee on Citizenship and Immigration. Evidence, 37th Parl., 1st Sess., No. 5(March 20, 2001), online: <http://www.parl.gc.ca/HousePublications/Publication.aspx?Mode=1&Parl=37&Ses=1&DocId=1040609&Language=E>. Canada. Parliament. House of Commons. Standing Committee on Citizenship and Immigration.
Evidence, 37th Parl., 1st Sess., No. 22(May 8, 2001), online: <http://www.parl.gc.ca/HousePublications/Publication.aspx?Mode=1&Parl=37&Ses=1&DocId=696136&Language=E>. Canada. Parliament. House of Commons. Standing Committee on Citizenship and Immigration. Evidence, 37th Parl., 1st Sess., No. 27(May 17, 2001), online: <http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=e&Mode=1&Parl=37&Ses=1&DocId=1040838&File=0=>. Canada. Parliament. House of Commons. Standing Committee on Citizenship and Immigration.
Evidence, 40th Parl., 3rd Sess., No. 012(May 4, 2010), online: <http://www.parl.gc.ca/HousePublications/Publication.aspx?Mode=1&Parl=40&Ses=3&DocId=4495456&Language=E>. Canada. Parliament. Senate. Proceedings of the Standing Senate Committee on Social Affairs, Science and Technology, 37th Parl., 1stSess., No. 29 (October 4, 2001), online: <http://www.parl.gc.ca/Content/SEN/Committee/371/soci/29ev-e.htm?Language=E&Parl=37&Ses=1&comm_id=47>. Canada. Parliament. Senate.
Proceedings of the Standing Senate Committee on Social Affairs, Science and Technology, 40th Parl., 3rdSess., No. 11 (June 22, 2010), online: <http://www.parl.gc.ca/Content/SEN/Committee/403/soci/11cv-e.htm?Language=E&Parl=40&Ses=3&comm_id=47>. Daly, Paul. “Les appels administratifs au Canada” (2015), 93 Can. Bar Rev. 71. Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983. Nouveau Petit Robert: Dictionnaire alphabétique et analogique de la langue française. Paris: Dictionnaires Le Robert, 2006, “erroné”. Oxford English Dictionary, 3d ed. Oxford University Press, “wrong”.
Thomas, Robert. Administrative Justice and Asylum Appeals: A Study of Tribunal Adjudication. Oxford: Hart Publishing, 2011. United Nations High Commission for Refugees. UNHCR Submission on Bill C-31: Protecting Canada’s Immigration System Act, May2012, online: <http://www.unhcr.ca/newsroom/publications/>.
APPEAL from a decision of the Federal Court (2014 FC 799, [2014] 4 F.C.R. 811) allowing the respondents’ application for judicialreview of a decision of the Refugee Appeal Division (X (Re), ) of the Immigration and Refugee Board dismissingtheir appeal from a decision of the Refugee Protection Division rejecting their refugee claim. Appeal dismissed.
APPEARANCES Tamrat Gebeyehu, Nina Chandy and Amy King for appellant. Cheryl Robinson for respondents. Audrey Macklin and Anthony Navaneelan for intervenors. SOLICITORS OF RECORD Deputy Attorney General of Canada for appellant. Chantal Desloges Professional Corporation, Toronto, for respondents. Audrey Macklin, LL.M., LL.B., Faculty of Law, University of Toronto, and Mamann, Sandaluk & Kingwell LLP, Toronto, forintervenors.
The following are the reasons for judgment rendered in English by [1] Gauthier J.A.: The Minister of Citizenship and Immigration (the appellant or the Minister) appeals from the decision of JusticeMichael L. Phelan of the Federal Court allowing the three respondents’ application for judicial review: 2014 FC 799, [2014] 4 F.C.R.811. In their application, the respondents were contesting the validity of the decision of the Refugee Appeal Division (RAD) of theImmigration and Refugee Board (I.R.B.) [X (Re), ], which dismissed their appeal from the Refugee ProtectionDivision (RPD). [2] Pursuant to paragraph 74(
d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA or the Act), the Judgecertified the following question: What is the scope of the Refugee Appeal Division’s review when considering an appeal of a decision of the Refugee ProtectionDivision? [3] The respondents, who are citizens of Kosovo and Muslim, claim that their lives were threatened by an Islamic extremist group,the Wahhabis, and that the local police were unresponsive to their requests for help.
The RPD rejected their claim on the basis that,among other things, they had not satisfied their burden of providing clear and convincing evidence to rebut the presumption that stateprotection would be forthcoming to them in Kosovo. The Canadian Association of Refugee Lawyers and the Canadian Council forRefugees were granted intervener status to support the respondents’ position. [4] For the reasons that follow, I would dismiss the appeal. I. Background [5] Mr. Bujar Huruglica is married to Ms. Hanife Huruglica. Sadije Ramadani is Ms. Huruglica’s mother.
As mentioned, therespondents are all citizens of Kosovo and Muslim. Following Mr. Huruglica’s and Ms. Ramadani’s employment by U.S. governmentcontractors, they and their families were allegedly threatened in Kosovo by Islamic extremists. They testified that the Kosovar policewere not responsive to their concerns and that their attempts to complain about the threats they received were not taken seriously. Therespondents fled Kosovo in January 2013.
They traveled through the U.S., where they stayed on a visitor’s visa, and subsequentlyentered Canada, where they made their refugee claims in March 2013. [6] Although the respondents testified in a straightforward manner, and the RPD did not note any significant inconsistencies oromissions in their testimony, the RPD rejected their claims on the basis that the respondents’ failure to make asylum claims while in theU.S. diminished the credibility that they had subjective fear.
The country conditions documentary evidence before the RPD was foundnot to support the respondents’ allegation that they could not get adequate state protection in Kosovo. The RPD also noted that thisdocumentation did not support the presence and power of Islamic extremists in Kosovo. As such, there was no persuasive evidence toestablish that extremist Wahhabis—or any other extremists—had any significant influence over the police or other state institutions inKosovo. [7] Before the RAD, the respondents did not submit new evidence or seek an oral hearing.
The respondents argued that the RPD’scredibility assessment was flawed, in that the RPD had failed to consider their explanation for not seeking protection in the U.S., and thatit had ignored objective evidence of Islamic extremism in Kosovo.
They further submitted that the RPD’s state protection analysis wasdeficient, as it ignored evidence of widespread corruption at all levels of government and of police inadequacy and misconduct. [8] The RAD indicated that there was no need to deal with the alleged error in the assessment of the respondents’ credibility, since inits view, the decision of the RPD in respect of state protection was reasonably open to the RPD and was sufficient to dismiss therespondents’ claims. [9] To reach its conclusion, the RAD determined the standard of review that applied to the appeal from the RPD’s decision.
Therespondents had made no submissions in that respect. [10] The RAD used the framework developed in Newton v. Criminal Trial Lawyers’ Association, 2010 ABCA 399 , 493A.R. 89 (Newton) in its standard of review analysis. It found that the so-called Newton factors were better suited to the task than those setout in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir), given that the RAD is an administrative appeal bodyrather than a reviewing court. The Newton factors are the following [at paragraph 43]: (
a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation;
(
b) the nature of the question in issue; (
c) the
interpretation of the statute as a whole; (
d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; (
e) the need to limit the number, length and cost of appeals; (
f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and (
g) other factors that are relevant in the particular context. [ 11 ] First, after a brief
summary of some of the provisions dealing with the RPD and the RAD, the RAD concluded that (RAD reasons, at paragraph 13): … these respective roles suggest deference is owed to findings of fact, or findings of mixed fact and law, that can be traced back to evidence given at the RPD hearing.
Where the RAD has new evidence before it, either through documents or from an oral hearing, less deference may be owed, as the RPD will not have considered this evidence. [ 12 ] Second, the RAD noted that the issues before it were factual, and that these questions were generally reviewed on a deferential standard in both appellate courts and judicial review contexts: Canada (Citizenship and Immigration) v.
Khosa , 2009 SCC 12 , [2009] 1 S.C.R. 339, at paragraph 89 . [ 13 ] Third, the RAD held that the purpose and provisions of the IRPA suggest that the RAD is empowered to bring finality to the refugee protection process, and that it may be entitled to show less deference to the RPD in order to do so. In particular, the RAD drew from paragraph 111(1) (
b) and subsection 111(2) , paragraph 171 (
c) and subsection 162(2) of the IRPA. [ 14 ] Turning to the expertise and advantageous position of the RPD versus that of the RAD, the RAD underlined that the RPD always has the advantage of seeing and questioning refugee claimants, while the RAD will unfrequently have this opportunity.
This “suggests that the RAD show deference to the RPD on findings of fact and particularly in respect to credibility, other than in situations where the RAD holds an oral hearing and therefore has opportunity to consider evidence first hand” [footnote omitted]: RAD reasons, at paragraph 20. [ 15 ] The last factor considered by the RAD was the need to limit the number, length and cost of appeals and preserve the economy and integrity of RPD proceedings.
This, in the RAD’s view, was the factor that outweighed the others and suggested a deferential approach to questions of fact, especially when added to the fact that the RPD has the advantage of hearing witnesses. In this respect, the RAD adopted the Alberta Court of Appeal’s conclusion in Newton “that it is ‘singularly inefficient’ for a first-level hearing to be repeated at the appellate tribunal”: RAD reasons, at paragraph 21. The RAD so held despite the fact that its
interpretation of the legislation as a whole would lead to the conclusion that little or no deference was to be shown to the RPD findings: RAD reasons, at paragraph 22. [ 16 ] Having so concluded, the RAD therefore determined that the appropriate standard of review in this appeal was that of reasonableness, as defined in Dunsmuir and Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , [2011] 3 S.C.R. 708 ( Newfoundland Nurses ). The RAD did not consider other alternatives, including the standard of palpable and overriding error set out in Housen v.
Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 ( Housen ). [ 17 ] In its decision on the merits of the appeal, the RAD closely examined the reasoning offered by the RPD, as well as the arguments presented by the respondents. The RAD noted that in addition to the objective evidence cited by the RPD, there was further objective evidence supporting the RPD’s conclusion on the adequacy of state protection.
It noted that the objective evidence before the RPD was “mixed”, in that it set out deficiencies in the functioning of government institutions, but also reported on steps taken to improve the quality of law enforcement which had concrete results.
This documentation also showed that the Kosovar population trusted its national police service and was largely satisfied with the police’s work. [ 18 ] Having noted that local failures to provide effective policing do not amount to a lack of state protection unless such failures are situated by documentary evidence within a broader pattern of state inability or refusal to extend protection, the RAD reviewed the actual efforts made by the respondents with their local police and concluded that it was not unreasonable for the RPD to expect the respondents to do more than make an initial approach like they had done. [ 19 ] In his reasons for granting the application for judicial review, the Judge held that the RAD’s conclusion as to its role on appeal was reviewable on the standard of correctness.
He justified this choice based on the fact that this question of law is one of general interest to the legal system as a whole that had particular significance outside the refugee law context. He noted that “[s]etting the standard of review is a legitimate aspect of the superior court’s supervisory role”, and that both the Alberta Court of Appeal and the Nova Scotia Court of Appeal applied the standard of correctness to review a similar issue: Newton [at paragraph 39] ; Halifax (Regional Municipality) v. United Gulf Developments Ltd. , 2009 NSCA 78 , 280 N.S.R. (2d) 350 ( United Gulf ).
The Judge also mentioned that determining its standard of review fell outside the scope of the RAD’s expertise and experience, even if it involved the
interpretation of the IRPA , the RAD’s home statute. For these reasons, the Judge distinguished the case before him from that of Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 S.C.R. 654. [ 20 ] The Judge then held that the RAD had erred in applying the standard of reasonableness to its review of the RPD decision.
He noted that this standard was adopted to recognize the division of powers between the executive and the judiciary, a concept that is of “lesser importance and applicability” in this case, which involves an administrative appeal body: Federal Court reasons, at paragraph 43. In the Judge’s view, the relationship between the RAD and the RPD “is more akin to that between a trial court and an appellate court but further influenced by the much greater remedial powers given to the appellate tribunal”: Federal Court reasons, at paragraph 44.
[ 21 ] The Judge held that it may be appropriate to give deference to the RPD’s findings of fact when they turn on a witness’ credibility, but that this was not the case in the application before him.
In respect of country conditions documentary evidence, the Judge found that the RAD had equal or greater expertise than the RPD. [ 22 ] Having reviewed the relevant legislation and its purpose, and having compared the role of the RAD to that of the Immigration Appeal Division (IAD), the Judge concluded as follows (at paragraphs 54 and 55): Having concluded that the RAD erred in reviewing the RPD’s decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal.
It must review all aspects of the RPD’s decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a “palpable and overriding error”. II.
Issues [ 23 ] The questions to be determined are: (
a) What is the standard of review to be applied by this Court, particularly in respect of the certified question? (
b) What was the proper standard of review to be applied by the Judge to the issue before him? (
c) Did the Judge properly apply this standard, that is, did the RAD make a reviewable error in defining the “scope of [its] review when considering an appeal of a decision of the RPD”? I note that this issue is narrower than the question certified by the Judge, as the RAD’s assessment in the present case did not involve a question of law, nor raise an issue relating to the credibility of oral evidence heard by the RPD. [ 24 ] With respect to the certified question, which is set out at paragraph 2, I will simply answer the question that is determinative of this appeal, for this is the only question that should have been properly certified under paragraph 74 (
d) of the IRPA . III. Legislation [ 25 ] The most relevant provisions of the IRPA are reproduced here, while other provisions referred to in these reasons are included in Appendix A: Objectives and Application 3 … Objectives — refugees
(2) The objectives of this Act with respect to refugees are (
a) to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted ; (
b) to fulfil Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement; (
c) to grant, as a fundamental expression of Canada’s humanitarian ideals, fair consideration to those who come to Canada claiming persecution; (
d) to offer safe haven to persons with a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group, as well as those at risk of torture or cruel and unusual treatment or punishment ; (
e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings ; (
f) to support the self-sufficiency and the social and economic well-being of refugees by facilitating reunification with their family members in Canada; (
g) to protect the health and safety of Canadians and to maintain the security of Canadian society; and (
h) to promote international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals. Appeal to Refugee Appeal Division Appeal 110
(1) Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact , to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person’s claim for refugee protection.
… Restriction on appeals
(2) No appeal may be made in respect of any of the following: (
a) a decision of the Refugee Protection Division allowing or rejecting the claim for refugee protection of a designated foreign national; (
b) a determination that a refugee protection claim has been withdrawn or abandoned; (
c) a decision of the Refugee Protection Division rejecting a claim for refugee protection that states that the claim has no credible basis or is manifestly unfounded; (
d) subject to the regulations, a decision of the Refugee Protection Division in respect of a claim for refugee protection if (
i) the foreign national who makes the claim came directly or indirectly to Canada from a country that is, on the day on which their claim is made, designated by regulations made under subsection 102(1) and that is a party to an agreement referred to in paragraph 102(2)(d), and (ii) the claim — by virtue of regulations made under paragraph 102(1)(c) — is not ineligible under paragraph 101(1)(
e) to be referred to the Refugee Protection Division; (d.1) a decision of the Refugee Protection Division allowing or rejecting a claim for refugee protection made by a foreign national who is a national of a country that was, on the day on which the decision was made, a country designated under subsection 109.1(1); (
e) a decision of the Refugee Protection Division allowing or rejecting an application by the Minister for a determination that refugee protection has ceased; (
f) a decision of the Refugee Protection Division allowing or rejecting an application by the Minister to vacate a decision to allow a claim for refugee protection. … Procedure
(3) Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division , and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal and, in the case of a matter that is conducted before a panel of three members, written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board. Time limits
(3.1) Unless a hearing is held under subsection (6), the Refugee Appeal Division must make a decision within the time limits set out in the regulations. Evidence that may be presented
(4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. Exception (5) Subsection (4) does not apply in respect of evidence that is presented in response to evidence presented by the Minister. Hearing
(6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (
a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (
b) that is central to the decision with respect to the refugee protection claim; and (
c) that, if accepted, would justify allowing or rejecting the refugee protection claim. Decision 111
(1) After considering the appeal, the Refugee Appeal Division shall make one of the following decisions: (
a) confirm the determination of the Refugee Protection Division; (
b) set aside the determination and substitute a determination that, in its opinion, should have been made ; or (
c) refer the matter to the Refugee Protection Division for re-determination, giving the directions to the Refugee Protection Division that it considers appropriate.
(1.1) [Repealed, 2012, c. 17, s. 37 ] Referrals
(2) The Refugee Appeal Division may make the referral described in paragraph (1)(
c) only if it is of the opinion that (
a) the decision of the Refugee Protection Division is wrong in law, in fact or in mixed law and fact; and (
b) it cannot make a decision under paragraph 111(1)(
a) or (
b) without hearing evidence that was presented to the Refugee Protection Division . … Provisions that Apply to All Divisions Sole and exclusive jurisdiction 162
(1) Each Division of the Board has, in respect of proceedings brought before it under this Act , sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction. Procedure
(2) Each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit. … Refugee Appeal Division Proceedings 171 In the case of a proceeding of the Refugee Appeal Division, (
a) the Division must give notice of any hearing to the Minister and to the person who is the subject of the appeal; (a.1) subject to subsection 110(4), if a hearing is held, the Division must give the person who is the subject of the appeal and the Minister the opportunity to present evidence, question witnesses and make submissions ; (a.2) the Division is not bound by any legal or technical rules of evidence; (a.3) the Division may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances; (a.4) the Minister may, at any time before the Division makes a decision, after giving notice to the Division and to the person who is the subject of the appeal, intervene in the appeal; (a.5) the Minister may, at any time before the Division makes a decision, submit documentary evidence and make written submissions in support of the Minister’s appeal or intervention in the appeal; (
b) the Division may take notice of any facts that may be judicially noticed and of any other generally recognized facts and any information or opinion that is within its specialized knowledge ; and (
c) a decision of a panel of three members of the Refugee Appeal Division has, for the Refugee Protection Division and for a panel of one member of the Refugee Appeal Division, the same precedential value as a decision of an appeal court has for a trial court . [Emphasis added.] IV. Analysis A. What is the standard of review to be applied by this Court, particularly in respect of the certified question? [ 26 ] When reviewing a decision of the Federal Court on a judicial review application, this Court must determine if the Judge chose the appropriate standard(
s) of review for the issue(
s) before him and if he applied it (them) correctly: Agraira v. Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 , [2013] 2 S.C.R. 559 ( Agraira ), at paragraphs 45–47 . The latter involves “step[ping] into the shoes” of the Judge. This Court’s focus will thus be on the decision of the RAD. [ 27 ] That said, the interveners particularly insisted that this Court should give the correct answer to questions that have been certified pursuant to paragraph 74 (
d) of the IRPA . In their written and oral submissions, they relied on this Court’s decision in Kanthasamy v. Canada (Citizenship and Immigration) , 2014 FCA 113 , [2015] 1 F.C.R. 335, at paragraphs 30–37 . However, since then, the Supreme Court has reversed this decision: Kanthasamy v. Canada (Citizenship and Immigration) , 2015 SCC 61 , [2015] 3 S.C.R. 909 ( Kanthasamy ).
The Supreme Court confirmed that despite the fact that a certified question may well be of general importance to the refugee law system, it is not a type of question that falls within the exceptions to the application of the standard of reasonableness: Kanthasamy , at paragraph 44. [ 28 ] Kanthasamy will obviously have a tremendous impact, given that for many years, the Federal Court resorted to the certification process under paragraph 74 (
d) to settle divergent
interpretations or disagreements on legal issues of general importance. This Court’s
providing the correct answer to certified questions appears to have been welcomed, particularly by the IAD and the RPD, who saw it ashelpful in carrying out their functions. [29] The legislator is obviously empowered to set the standard of review that it wants to see applied to questions certified pursuant toparagraph 74(
d) of the IRPA. However, this must be done very clearly. Should the legislator wish to continue the system that was inplace before Kanthasamy, it would be required to amend the IRPA and clarify its intention that certified questions be reviewed on acorrectness standard. B. What was the proper standard of review to be applied by the Judge to the issue before him? [30] The appellant strongly argues that the Judge chose the wrong standard of review.
The Judge’s conclusion in that respect, as wellas the precedents on which he relied (Newton and United Gulf), did not take into consideration all of the relevant Supreme Court ofCanada decisions—especially those issued since 2011. Neither the Judge nor the other two provincial courts of appeal turned their mindto the presumption that reasonableness applies to all questions of law arising from the
interpretation of an administrative body’s homestatute: see, for example, McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895 (McLean); Smith v.Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; and Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC40, [2014] 2 S.C.R. 135 (CN v. Canada). The Minister submits that the Judge misconstrued the limited exceptions where the standard ofcorrectness may be applied. I agree with these submissions. [31] With all due respect to the Judge and his colleagues in the Federal Court who have agreed with his selection of standard ofreview, I simply cannot conclude that a question of law involving the
interpretation of an administrative body’s home statute so as todetermine its appellate role has any precedential value outside of the specific administrative regime in question: see, among others,Alvarez v. Canada (Citizenship and Immigration), 2014 CF 702 , 2014 FC 702; Yetna v. Canada (Citizenship and Immigration),2014 FC 858, 463 F.T.R. 128; Spasoja v. Canada (Citizenship and Immigration), 2014 FC 913, 464 F.T.R. 160 (Spasoja); Bahta v.Canada (Citizenship and Immigration), 2014 FC 1245, 32 Imm. L.R. (4th) 173; Sow v. Canada (Citizenship and Immigration), 2015 FC295, 472 F.T.R. 303; Bellingy v.
Canada (Citizenship and Immigration), 2015 FC 1252. In fact, this logically relates to the argument putforth by the respondents and the interveners that it is not useful to look at decisions regarding the role of administrative appeal bodiesother than those created under the IRPA: see also the Federal Court reasons, at paragraph 53. [32] Just as legal principles applicable to cost awards and to time limitations have been found to fall within the expertise of theadministrative bodies involved in Canada (Canadian Human Rights Commission) v.
Canada (Attorney General), 2011 SCC 53, [2011] 3S.C.R. 471, at paragraph 25 and McLean, at paragraph 21, defining the scope of its appellate function (or its standard of review) must bewithin the RAD’s expertise. [33] I cannot agree with the respondents’ position that the issue before the Judge was a true jurisdictional question. The respondentsframed the issue as involving the overlapping ability of both the RPD and the RAD to exercise their sole and exclusive jurisdictions inmaking findings of fact, law and mixed fact and law on the same set of evidence. However, the Supreme Court has warned against anexpansive
interpretation of what it deems to be “true questions of jurisdiction”, as well as questions of overlapping or competingjurisdiction between two administrative bodies. In my view, there is no question here that falls under the scope of such exceptions. Iagree with the position taken by other judges of the Federal Court, such as Justice Luc Martineau in Djossou v. Canada (Citizenship andImmigration), 2014 FC 1080, [2015] 3 F.C.R. 664 (Djossou) and Justice Jocelyne Gagné in Akuffo v. Canada (Citizenship andImmigration), 2014 FC 1063, 86 Admin.
L.R. (5th) 112, that this is not a question of true vires. [34] Lastly, the Supreme Court made it clear in Kanthasamy that a question of general importance to the refugee law system does notfall under any of the other exceptions to the standard of reasonableness set out in Dunsmuir. [35] I thus conclude that the Judge erred in his selection of the standard of review applicable to the case before him, and that theproper standard ought to be that of reasonableness. C. Did the RAD make a reviewable error in defining the scope of its review in this appeal from the RPD decision? [36] Before embarking on a statutory
interpretation analysis, it is important to delineate what is in dispute before us from what is not. [37] It is not disputed that the role of the RAD is not to review RPD decisions in the manner of a judicial review. All the parties agreethat the process before the RAD is a “hybrid appeal”. The parties have also agreed that in respect of questions of law, the RAD shouldintervene if the RPD erred. That is, it must apply the correctness standard.
In fact, and as explained below, one of the roles of the RAD isto develop a coherent national jurisprudence. [38] What the parties disagree on is what a “hybrid appeal” means here, and what the RAD’s role is in respect of questions of fact andmixed fact and law. [39] According to the Minister, the Judge was wrong to the extent that his reasons can be interpreted as describing an appeal to theRAD as a de novo appeal.
Indeed, the Minister submits that when the RAD does not hold a hearing and decides the issues raised by aclaimant or the Minister on the basis of the record before the RPD (subsection 110(3) of the IRPA), the RAD is truly acting as anappellate court. Therefore, it should not carry out an independent assessment of the claim. Rather, the Minister says that the RAD shouldrestrict its intervention to cases where the RPD made an unreasonable finding or, in the alternative, a palpable and overriding error:appellant’s memorandum of fact and law (MFL), at paragraphs 78–81.
The Minister argues that the reasoning of the Court in Spasojaand its conclusion as to the role of the RAD should be followed, because it preserves the integrity of the RPD process: appellant’s MFL,at paragraph 30. The Minister does not dispute that less deference, if any, would be owed in the relatively rare cases where the RADholds a hearing pursuant to subsection 110(6) of the IRPA (see paragraph 110(6)(
c) in particular). It is in that sense only that the appealis a hybrid appeal in the Minister’s view. [40] On the other hand, the respondents and the interveners support the Judge’s findings at paragraphs 54 and 55 of his reasons. Infact, in their view, a finding of error should not be a pre-condition for all appellate intervention by the RAD: respondents’ MFL, at
paragraph 51. [ 41 ] A few comments as to how I approached my task and what I consider necessary to include in my reasons are also warranted. In Canada (Public Safety and Emergency Preparedness) v. Tran , 2015 FCA 237 , [2016] 2 F.C.R. 459, at paragraph 45 , I indicated that it is sometimes difficult to apply the standard of reasonableness to pure questions of statutory
interpretation, and that further guidance from the Supreme Court would be welcomed as to the type of analysis that courts should perform in such cases. [ 42 ] The parties referred to the conflicting approaches and conclusions reached by Federal Court Judges on the issue before us.
Thus, to ensure that I understood the various approaches to interpreting the relevant provisions that were adopted below, I reviewed all such Federal Court decisions, as well as a good sample of RAD decisions dealing with the issue (especially following the Judge’s decision in the present case). [ 43 ] However, I gather from the Supreme Court decision in Kanthasamy that there is no real need for me to engage in a comparative analysis to explain whether or not an alternative statutory
interpretation is reasonable.
Section 25 of the IRPA was construed for many years by many administrative and judicial decision makers differently from how it was ultimately construed by our highest Court in Kanthasamy . Despite this, the Supreme Court felt no need to refer to these alternative constructions before concluding that
section 25 of the IRPA bore only one reasonable
interpretation, and that the decision under review was therefore unreasonable. [ 44 ] This approach appears to be particularly well suited to the question before us in the present appeal. I agree with the position advanced by Dr. Paul Daly that the very nature of the question (that is, what role did the legislator intend the RAD to play) implies that it cannot have many answers: Paul Daly, “Les appels administratifs au Canada” (2015), 93 Can. Bar Rev. 71 (Les appels administratifs au Canada), at page 105. Accordingly, the range of legally acceptable outcomes will necessarily be narrow.
In fact, as will be explained, it is my view that the legislative intent is not ambiguous.
The controversy in RAD and Federal Court decisions can be more accurately described as a disagreement over whether to import either the standard from a judicial review of an administrative action ( Dunsmuir ) or an appellate court’s review of a lower court decision ( Housen ) into the RAD’s review of an RPD decision. [ 45 ] I also note that in this particular case, the RAD did not have the benefit of any submissions in respect of its appellate role, nor of a record which included the legislative evolution and history of the relevant IRPA provisions.
Further, it appears that the RAD was one of the first, if not the first, administrative appeal bodies outside of Alberta to rely on the Newton factors. This was mentioned by the British Columbia Supreme Court in BC Society for the Prevention of Cruelty to Animals v. British Columbia (Farm Industry Review Board) , 2013 BCSC 2331 , 67 Admin. L.R. (5th) 152, at paragraph 31 , where the B.C. Supreme Court declined to follow Newton . [ 46 ] I do not find the decision in Newton particularly useful.
I believe that the determination of the role of a specialized administrative appeal body is purely and essentially a question of statutory
interpretation, because the legislator can design any type of multilevel administrative framework to fit any particular context. An exercise of statutory
interpretation requires an analysis of the words of the IRPA read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the IRPA and its object (Elmer A. Driedger, Construction of Statutes , 2nd ed. (Toronto: Butterworths, 1983)). The textual, contextual and purposive approach mandated by modern statutory
interpretation principles provides us with all the necessary tools to determine the legislative intent in respect of the relevant provisions of the IRPA and the role of the RAD. [ 47 ] The principles which guided and shaped the role of courts on judicial review of decisions made by administrative decision makers (as set out in Dunsmuir , at paragraphs 27–33 ) have no application here.
Indeed, the role and organization of various levels of administrative decision-makers do not put into play the tension between the legislative intent to confer jurisdiction on administrative decision-makers and the constitutional imperative of preserving the rule of law. [ 48 ] With all due respect to the contrary view, it would also be inappropriate to import the considerations set out in Housen , since the adoption of the high level of deference afforded by appellate courts of law to lower courts of law on questions of fact and mixed fact and law was mainly guided by judicial policy: Housen , at paragraphs 16 and 17 . [ 49 ] When the legislator designs a multilevel administrative framework, it is for the legislator to account for considerations such as how to best use the resources of the executive and whether it is necessary to limit the number, length and cost of administrative appeals.
As will be discussed, the legislative evolution and history of the IRPA shed light on the policy reasons that guided the creation of the RAD and the role it was intended to fulfil. These policy considerations are unique to the RPD and the RAD. Thus, one should not simply assume that what was deemed to be the best policy for appellate courts also applies to specific administrative appeal bodies. [ 50 ] To be clear, I am not saying that the standard of reasonableness will never apply in appeals to administrative appeal bodies.
In fact, there are examples where the legislator clearly expresses an intention that such a standard be applied: see, for example, subsection 18(2) and
section 33 of the Commissioner’s Standing Orders (Grievances and Appeals) , SOR/2014-289, adopted pursuant to the Royal Canadian Mounted Police Act , R.S.C., 1985, c. R-10; subsection 147(5) of the Corrections and Conditional Release Act , S.C. 1992, c. 20 (see Appendix A). This last provision was reviewed and construed by this Court in Cartier v. Canada (Attorney General) , 2002 FCA 384 , [2003] 2 F.C.R. 317, at paragraphs 6–9 . [ 51 ] Rather, what I am saying is that one cannot simply decide that this standard will apply on the basis of one’s own assessment of factors (
e) and (
f) listed in Newton (see paragraphs 10, 15 and 16 above). One must seek instead to give effect to the legislator’s intent. [ 52 ] With this in mind, I will now proceed with my statutory analysis, looking first at the relevant purpose and object of the IRPA .
(1) Purpose and Object of the IRPA [ 53 ] The many objectives of the IRPA are expressly set out in subsection 3(2) of the IRPA (see paragraph 25 above). The Minister focuses particularly on paragraph 3(2) (e), which refers to the establishment of fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system. This is obviously very relevant when one considers the functions of the RPD and the RAD. That said, one should always keep in mind that the very first objective of the IRPA (paragraph 3(2)(a)) is to recognize that the refugee program is about saving lives and offering protection to the displaced and persecuted. This may be what prompted Robert
Thomas to write that decision-making in respect of refugee claims is “perhaps the most problematic adjudicatory function in the modern state”: Robert Thomas, Administrative Justice and Asylum Appeals: A Study of Tribunal Adjudication (Oxford: Hart Publishing, 2011), at page 48, cited in Les appels administratifs au Canada, at page 95, footnote 103.
(2) The Legislative Scheme and sections 110 and 111 of the IRPA [ 54 ] The IRPA creates two distinct divisions of the I.R.B. to deal with refugee claims. The RPD plays a primary role in the refugee claims determination process, for it must hold a hearing in respect of every refugee claim: subsection 170 (
b) of the IRPA. It must also determine in advance the issues that will need to be addressed at its hearing. At the hearing, the member of the RPD plays a crucial role, quite distinct from that of a judge. Most of the time, he or she questions the claimant before he or she is examined by his or her own counsel, or cross-examined by counsel for the Minister, if any. [ 55 ] The RPD is the final decision maker in respect of all claims listed in subsection 110(2) of the IRPA .
The respondents further point out that the RPD was in fact the final decision maker in about 80 percent of the refugee claims assessed in 2013: respondents’ MFL, at paragraph 53; The Refugee Appeal Division: Presentation to the Toronto Regional Consultative Committee by Ken Atkinson (February 5, 2014), appellant’s appeal book, Vol. 1, Tab 7, at page 68. [ 56 ] When dealing with an appeal, the RAD has essentially the same powers as the RPD: see sections 162 and 171 of the IRPA .
For example, the RAD has the same ability as the RPD to take judicial “notice of any facts that may be judicially noticed and of any other generally recognized facts, and any information or opinion that is within its specialized knowledge”: subsection 171(
b) of the IRPA. Nevertheless, there are a few important distinctions between the RAD and the RPD. First, the RAD will rarely hold a hearing: subsection 110(6) of the IRPA. Although it may consider any new documentary evidence submitted by the Minister, it can only accept new evidence as defined in subsection 110(4) from a refugee claimant: See Canada (Citizenship and Immigration) v. Singh , 2016 FCA 96 , [2016] 4 F.C.R. 230. Moreover, 10 percent of its members, as well as its vice-president, must be lawyers or notaries: subsection 153(4) of the IRPA.
When an appeal is heard by three members of the RAD, their decision has the same precedential value that an appellate court decision has for a trial court. Such a decision binds all RPD members, as well as any one-member panel of the RAD: subsection 171(
c) of the IRPA. [ 57 ] The IRPA also provides for a similar two-level process in respect of other immigration matters. In particular, appeals from a number of first-level decision makers are made to another I.R.B. division: the IAD. The wording of paragraph 67(1) (
a) of the IRPA, which describes when the IAD can intervene, is similar to that of paragraph 111(2) (a) (see Appendix A). However, I do not find it useful to say more about the IAD, because the cases discussing the IAD raised by the Minister are outdated: they are either old cases that were released before the IRPA came into force; or they are cases which were released after the IRPA came into force but which rely on the old cases.
Both interpret language on when the IAD can intervene that is not current, and provide no analysis of the words “wrong in law or fact or mixed law and fact” found at subsection 67(1) (a). [ 58 ] Sections 110 and 111, reproduced above, deal with appeals from the RPD to the RAD. Subject to my comments with respect to paragraph 111(2) (b), I generally agree with the RAD’s finding that neither
section 110 nor 111, nor the legislation as a whole, point to the need to show deference to the RPD’s findings of fact. As acknowledged by the RAD in this case, these provisions evidence the legislator’s intent that the RAD bring finality to the refugee claims’ determination process. [ 59 ] In particular, paragraph 111(2) (
a) indicates that the RAD does not need to defer for factual findings. Paragraph 111(2) (
a) does not distinguish between errors of law, fact or mixed fact and law. It simply requires that the decision of the RPD be “wrong in law, in fact or in mixed law and fact” (in French: “ erronée en droit, en fait ou en droit et en fait ”). [ 60 ] At the hearing, the Minister argued that the wording of paragraph 111(2) (
a) was such that it applied only to paragraph 111(1) (c), and not to paragraph 111(1) (
a) or (b). Thus, paragraph 111(2)(
a) provides little guidance as to the role of the RAD when it confirms a RPD decision under paragraph 111(1) (
a) or sets it aside by substituting “the determination that, in its opinion, should have been made” under paragraph 111(1) (b). I cannot agree. The effect of this argument is that the RAD would be forced to reach the appropriate outcome for the case (under one of paragraphs 111(1) (a), (
b) or (c)) before it could choose the proper standard of review to apply to that case: it would be forced to put the cart before the horse. [ 61 ] Albeit in a different context, a similar approach was rejected by this Court in Cartier , at paragraph 9 . In that case, this Court noted that despite the awkward way the provision at issue was drafted, the applicable standard of review remained the same regardless of whether the appellate body confirmed or reversed the decision under appeal, thereby resulting in the release of an offender. I cannot see how this could be otherwise in the present case.
Indeed, on appeal, the RAD must necessarily consider the RPD decision and the record available before determining how it should dispose of the matter, including whether it is preferable to dispose of the appeal in accordance with paragraph 111(1) (
c) and subsection 111(2). The extent or nature of its review of the decision and its assessment of the record cannot depend on the ultimate conclusion that it will reach in this regard. [ 62 ] In my view, subsection 111(2) is part of the context that must be examined as a whole to determine the legislative intent regarding the role of the RAD in all cases mentioned under subsection 111(1) . This is especially so because paragraph 111(2)(
b) expressly refers to paragraphs 111(1) (
a) and (b). [ 63 ] I also note that the Minister appears to suggest that the word “wrong” is synonymous or the equivalent to the word “unreasonable”: appellant’s MFL, at paragraph 80. Again, I cannot accept this argument. This is not the ordinary meaning of the word “wrong”, nor is it its customary meaning in a legal context. [ 64 ] The ordinary meaning of the word “wrong” is “not correct or true”, “incorrect”, “mistaken”: The Oxford English Dictionary , 3d ed., s.v. “wrong”.
The French version “ erronée ” has the exact same ordinary meaning, that is, “ fausse ”, “ incorrecte ”, “ inexacte ”, “ mal fondée ”: Le Nouveau Petit Robert [ Dictionnaire alphabétique et analogique de la langue française , Paris: Dictionnaires Le Robert], 2006, s.v. “ erroné ”. This wording definitively points to the standard of correctness. In addition, the legislator’s intent to use the word “wrong” in its ordinary meaning is, in my view, supported by the legislative history, to which I will refer later.
[ 65 ] In my view, the Minister’s position can only be based on the assumption that the legislator meant to apply one of the deferential standards of review applicable to findings of fact, be it in the context of a judicial review or of an appeal from a trial court. No such presumption applies here, as the legislator made it clear that the RPD is not entitled to err, be it in law, in fact or in mixed and fact and law. As mentioned earlier, it would make little sense to give the word “wrong” a different meaning depending on whether it relates to the words “in law”, “in fact” or “in mixed law and fact” used in paragraph 111(2)(a). This would be contrary to the most basic rule of statutory
interpretation. [ 66 ] Furthermore, it appears from a search of the federal legislation and regulations that the word “wrong”, as used in paragraphs 111(2) (
a) and 67(1) (
a) of the IRPA , has not been used in any other federal statute or regulation. By contrast, there are many examples of statutes and regulations that capture the standard of reasonableness through the use of words such as “reasonable” or “reasonably”. I gave an example of each at paragraph 50 above.
Thus, the IRPA’s unique provisions were expressly crafted to give effect to the legislator’s particular intent in respect of this sui generis scheme. [ 67 ] At the hearing, the Minister submitted that the most telling characteristic of the RAD’s appeal process is that in the vast majority of cases (including the matter before us), the RAD determines the appeal on the basis of the record of the RPD proceedings: subsection 110(3) of the IRPA .
This, he submits, leads to the conclusion that the legislator intended that all findings of fact (and not only those involving the assessment of oral evidence) be reviewed on the standard of reasonableness or of palpable and overriding error. I need only use one example to illustrate why I disagree that this is not the only inference that can be drawn from subsection 110(3). The present appeal is based solely on the record available before the Judge.
Still, as mentioned earlier, once it has been ascertained that the Judge chose the appropriate standard of review for the question before him, the Court “steps into the shoes” of the Judge to assess if he correctly applied that standard. No deference is owed in that respect, although the Court will carefully consider the decision under appeal. [ 68 ] Admittedly, inasmuch as paragraph 111(2) (
a) is relevant to the analysis, subsection 110(3) is also part of the context that must be considered. However, subsection 110(3) is simply not as determinative as the Minister’s argument above suggests. [ 69 ] I now turn to paragraph 111(2)(b). It provides that once an error has been identified ( paragraph 111(2) (a)), the RAD may refer the matter back for redetermination with the directions that it considers appropriate only if it is “of the opinion” that it cannot make a decision confirming or setting aside the RPD decision without hearing the evidence presented before the RPD.
This possibility acknowledges the fact that in some cases where oral testimony is critical or determinative in the opinion of the RAD, the RAD may not be in a position to confirm or substitute its own determination to that of the RPD. [ 70 ] This also recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears.
It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim. [ 71 ] One can imagine many possible scenarios. For example, when the RPD finds a witness straightforward and credible, there is no issue of credibility per se .
This will also be the case when the RAD is able to reach a conclusion on the claim, relying on the RPD’s findings of fact regarding the relative weight of testimonies and their credibility or lack thereof. [ 72 ] Problems will occur when the credibility findings themselves are disputed on appeal, and the RAD has no way to reach a conclusion without endorsing or rejecting those findings.
If the RAD can identify an error in situations where, for example, a claimant was not found credible because his story was not plausible based on common sense, the RPD may have no real advantage over the RAD. [ 73 ] Similarly, there may also be cases where a finding that a witness is not credible was based on discrepancies that could not justify such a conclusion or that simply did not exist.
If the assessment of the oral evidence contains an error which the RAD can easily identify, but the weight to be given to this testimony is essential to determine whether the RPD decision should be confirmed or set aside, the RAD may conclude that it is a proper case to refer back to the RPD with specific directions in respect of the error identified in the credibility findings. [ 74 ] That said, it is not appropriate to say more about the various scenarios that may arise, for they are not before us.
The RAD should be given the opportunity to develop its own jurisprudence in that respect; there is thus no need for me to pigeon-hole the RAD to the level of deference owed in each case. [ 75 ] Before concluding my analysis of the wording and scheme of the IRPA , I will say a few words about another argument raised by the Minister that could in theory fit in this analysis, given that it may address the objective set out in paragraph 3(2) (
a) of the IRPA. Without providing any evidence to support his argument, the Minister states that unless the RAD applies a standard involving a high level of deference to the RPD findings of fact, it would be impossible for the RAD to fulfill its mandate because it would be required to peruse an enormous amount of documentation. [ 76 ] As mentioned earlier, I reviewed a large sample of decisions of the RAD that applied the approach suggested by the Judge in this case.
The RAD members in question had chosen to do so even after other Federal Court decisions indicated that the standard of palpable and overriding error could be used to review the RPD’s findings of facts. I note in passing that I was impressed by the general quality of those decisions; this certainly bodes well for the future. That said, I saw no indication that the RAD has any difficulty fulfilling its mandate when conducting substantive reviews of appealed RPD decisions. Certainly, there is no mention of this in any of the decisions that followed the approach described by the Judge in this matter.
A few members of the RAD have decided to follow the approach suggested in Spasoja . I understand that this is mostly because they felt that it was easier to apply a standard that was already well defined, not because they did not have the time or the resources to conduct the substantive review of the documents on file that would be mandated if a less deferential standard were applied. [ 77 ] In any event, and as indicated above at paragraphs 49 and 51, the number of appeals and the time and effort required on each
appeal is for the legislator to consider. I find no indication in the wording of the IRPA , read in the context of the legislative scheme and its objectives, that supports the application of a standard of reasonableness or of palpable and overriding error to RPD findings of fact or mixed fact and law. [ 78 ] At this stage of my analysis, I find that the role of the RAD is to intervene when the RPD is wrong in law, in fact or in fact and law. This translates into an application of the correctness standard of review. If there is an error, the RAD can still confirm the decision of the RPD on another basis.
It can also set it aside, substituting its own determination of the claim, unless it is satisfied that it cannot do either without hearing the evidence presented to the RPD: paragraph 111(2) (
b) of the IRPA . [ 79 ] I also conclude that an appeal before the RAD is not a true de novo proceeding. Recognizing that there may be different views and
definitions, I need to clarify what I mean by “true de novo proceeding”. It is a proceeding where the second decision maker starts anew: the record below is not before the appeal body and the original decision is ignored in all respects. When the appeal is a true de novo proceeding, standard of review is not an issue. This is clearly not what is contemplated where the RAD proceeds without a hearing. [ 80 ] I will now look at the IRPA ’s legislative evolution and history.
Despite the relatively low weight generally given to legislative history, I agree with the Federal Court in Spasoja that on the issue before us, it is particularly instructive and simply impossible to ignore. As mentioned, I believe that both the legislative evolution and its history confirm the conclusion that I have reached at this stage of my analysis.
(3) Legislative evolution and history [ 81 ] Although much of what I will say here has been discussed in various decisions of the Federal Court (see, for example, Djossou , at paragraphs 74–85 and Spasoja , at paragraphs 32–38 ), it is worthwhile to set it out again, as it provides useful indications as to how the legislator envisioned the role of the RAD and how the two-tier administrative decision-making process was understood to provide a fair and more efficient process. [ 82 ] From 1985 until the enactment of the IRPA , the determination of refugee claims was governed by sections 67–69.1 of the Immigration Act , R.S.C., 1985, c.
I-2 [repealed by S.C. 2001, c. 27, s. 274 ]. Refugee claims were decided by a quorum of two members of the Convention Refugee Determination Division, unless claimants consented to have their case determined by a single member. There was no appeal, and the only recourse was judicial review. [ 83 ] Bill C-11 (now the IRPA ), which received Royal Assent on November 1, 2001, provided for the creation of a Refugee Appeal Division (the RAD) within the Immigration and Refugee Board (I.R.B.). In 2007, a private Member’s bill (Bill C-280 [
An Act to Amend the Immigration and Refugee Protection Act (coming into force of sections 110, 111 and 171) , 39th Parl., 2nd Sess., 2007]) was introduced to implement the provisions relating to the RAD (sections 110 and 111 particularly), but it never received Royal Assent. [ 84 ] Another Bill C-11, entitled the Balanced Refugee Reform Act [S.C. 2010, c. 8], was introduced in March 2010. It proposed to bring the unproclaimed RAD provisions of the IRPA into force within two years of its Royal Assent.
It also proposed changes to the existing RAD provisions, such that the RAD would have the power to accept new evidence in certain circumstances and the ability to hold a hearing in specified situations (subsections 110(4) and (6) ). It received Royal Assent on June 29, 2010. [ 85 ] In February 2012, Bill C-31, entitled Protecting Canada’s Immigration System Act [S.C. 2012, c. 17], was introduced.
It proposed further changes to the RAD provisions; in particular, it proposed limitations on access to the appeal provided for in the IRPA by several categories of refugee claimants, and barred appeals on cessation and vacation decisions (see subsection 110(2) of the IRPA). It received Royal Assent on June 28, 2012. [ 86 ] On December 15, 2012, the 2010 and 2012 amendments came into force and the RAD was formally launched. As mentioned, although the legislative history is not in any way determinative and should not to be given undue weight as to the legislative intent ( CN v.
Canada , at paragraph 47), it remains useful to consider statements of the Minister responsible for the legislation, as well as those of others directly involved in its development. [ 87 ] When Bill C-11 was tabled, Joan Atkinson, Assistant Deputy Minister, noted that the introduction of single-member RPD panels was to be offset by the introduction of the claimants’ right of appeal before the RAD: Standing Committee on Citizenship and Immigration, Evidence , 37th Parl., 1st Sess., No. 27 (May 17, 2001), at page 1140 in joint book of authorities (JBA),
Part II, Vol. 1, Tab 10. Similarly, the Honourable Elinor Caplan, who was the Minister responsible for the bill, underlined that ( Proceedings of the Standing Senate Committee on Social Affairs, Science and Technology , 37th Parl., 1st Sess., No. 29 (October 4, 2001) in JBA,
Part II, Vol. 1, Tab 11): The whole purpose [of the RAD] is to ensure that the correct decision is made .... Our expectation is that … the ability of the RAD to fix mistakes will give greater assurance to the Federal Court in the decision making at the IRB. In that way, we will see fewer cases actually given review at the Federal Court. [Emphasis added.] [ 88 ] Peter Showler, former Chairman of the I.R.B., stated the following as to why it would be appropriate to reduce the number of members dealing with refugee claims from two to one (Standing Committee on Citizenship and Immigration, Evidence , 37th Parl., 1st Sess., No. 5 (March 20, 2001), at pages 0915–0920 and 0925 in JBA,
Part II, Vol. 1, Tab 6): In contrast to the present model, where claims are normally heard by two-member panels, the vast majority of protection decisions will be made by a single member. Single-member panels are a far more efficient means of determining claims. It is true that claimants will no longer enjoy the benefit of the doubt currently accorded them with two-member panels, and I think that should be noted. However, any perceived disadvantage is more than offset by the creation of the refugee appeal division, the RAD, where all refused claimants and the minister have a right of appeal on RPD decisions.
Appeals to the RAD will be in writing only and will be reviewed by experienced RPD decision-makers with the power to affirm the RPD decision, to set it aside and substitute their own decision, or to refer the matter back to the RPD for a rehearing on particular issues in
exceptional cases where it might be necessary to hear additional evidence. We estimate the workload of the RAD will be about 8,000 to 9,000 cases per year, and we intend to equip the division with a corresponding level of staff and resources . It is expected that the RAD will produce two different but complementary results. By reviewing individual RPD decisions on the merits, the RAD can efficiently remedy errors made by the RPD. That, if you will, is the safety net for the RPD .
However, in addition the divisions will ensure consistency in refugee decision-making by developing coherent national jurisprudence in refugee law issues. As I said to this committee before, we don’t see that as a benefit simply in that it will improve the quality of our decision-making. If there is more coherent, consistent jurisprudence, we think RPD decision-makers can actually make their decisions more quickly as well. … So there’s a significant difference between them. We think the total result will end up the same as before.
But as I’ve already indicated, we think we will have a better-quality decision—because we’ll have had two goes, two kicks, at the can. There’s not only been the original decision, but also a clear, authoritative, experienced review of that decision . [Emphasis added.] [ 89 ] Minister Elinor Caplan further stated that (Standing Committee on Citizenship and Immigration, Evidence , 37th Parl., 1st Sess., No. 22 (May 8, 2001), at pages 0845, 0935 in JBA,
Part II, Vol. 1, Tab 8): Bill C-11 will create a new Refugee Appeal Division at the IRB to hear appeals on merit for decisions on refugee claims, rendering the system both faster and fairer by providing a mechanism to correct error in the first instance. … … Also I want to clarify that the RAD, the Refugee Appeal Division is not a second hearing.
It is a review on merit of the hearing that took place at the Refugee Protection Division. [ 90 ] At the second reading of the private Member’s bill presented in 2007, Member of Parliament Richard Nadeau referred to a number of systemic considerations justifying the establishment of the RAD, including the need for more efficiency. This particular need had been described as follows by the Canadian Council for Refugees: “[a] specialized appeal division for refugee matters can deal much more efficiently with unsuccessful claimants than the Federal Court ….
The refugee appeals division can do a better job of correcting errors of law and fact”: House of Commo
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