Law Times

Law Times • March 9, 2015 Page 9 www.lawtimesnews.com Judges differ on refugee appeals BY MICHAEL McKIERNAN For Law Times efugee lawyers are look- ing to the Federal Court of Appeal to clear up confusion about how deferential the Immigration and Refugee Board's refugee appeal division should be when review- ing decisions of the refugee pro- tection division. Two Federal Court judges took differing approaches to the issue in recent decisions while both rejected a third standard favoured by the refugee appeal division itself. The refugee appeal division only came into existence in late 2012, and the lack of jurispru- dence makes some initial de- bate over its role inevitable, ac- cording to Cheryl Robinson, a Toronto lawyer at immigration boutique Chantal Desloges PC. She hopes the upcoming appeal will help give everyone a better understanding of what to expect from the appeal division. "The RAD right now has two lines of jurisprudence, which creates a mess for both the RAD and the Federal Court because they are stuck figuring out which should apply," she says. "It would be immense to have some clarity and more judicial comity as opposed to the clash we have right now. I think what- ever the outcome at the Court of Appeal, it will at least give some finality and stability to decision- making at the RAD." In its short history, adjudica- tors on the appeal division panel have largely taken a judicial review approach to challenges of deci- sions from the refugee protection division. As a result, they're apply- ing the standard of reasonable- ness to determine whether or not they should uphold the decisions. Audrey Macklin, a professor who holds the chair in human rights law at the University of Toronto Faculty of Law, says the judicial review model was too restrictive. "This minimal level of scrutiny was a matter of great concern be- cause it undermines, if not evis- cerates, the value of an appeal di- vision. From a legal perspective, it made no sense," says Macklin. In two related decisions re- leased last summer, Alvarez v. Canada (Minister of Citizenship and Immigration) and Eng v. Can- ada (Minister of Citizenship and Immigration), Federal Court Jus- tice Michel Shore agreed that the appeal division's approach was too deferential and ruled it must conduct its own assessment of evidence presented to the refugee protection division. On questions of fact, Shore compared the relationship be- tween the two divisions to that between an appellate and trial court and limited the appeal di- vision's intervention to instanc- es in which there's a "palpable and overriding error." A few weeks later, Federal Court Justice Michael Phelan went even further in Huruglica v. Canada (Minister of Citizen- ship and Immigration), ruling that Parliament's creation of an internal appeal tribunal sug- gested a desire for more scru- tiny of initial decisions than a judicial review would provide. Instead, he suggested the ap- peal division should conduct a "hybrid appeal," reviewing "all aspects of the RPD's decision" and coming "to an independent assessment of whether the claim- ant 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," Phelan added. "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 partic- ular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to inter- vening on facts only where there is a 'palpable and overriding error.'" Robinson, who acted for the refugee claimants in Huruglica, says some decision-makers at the appeal division have already begun applying the hybrid ap- peal model suggested by Phelan, something that could cause problems in the event the Court of Appeal overturns his decision or favours Shore's more restric- tive approach to intervention on questions of fact. "You have the potential for three different models to have been applied by the RAD in its first three years, which is a lot of upheaval," says Robinson. "It could also be significant for claimants who might win under one standard but lose on another." The minister has appealed Phelan's ruling and is sticking to its position that the appeal divi- sion should apply the reasonable- ness standard in its decisions. "Even if you get a positive de- cision, I think there are going to be a lot more decisions and some need for more litigation to fully realize what the scope of the ap- peal division is," says Robinson. "It's exciting to get to be a part of it." Macklin, who represented the Canadian Association of Refu- gee Lawyers as an intervener in Huruglica, says the Court of Ap- peal decision will have signifi- cance beyond the context of the refugee system. "It affects every single appeal conducted at the RAD and, more broadly, any- body who works in an adminis- trative law regime where there is an internal appeal body will also have an interest in how the case is decided," says Macklin. Yannick Landry, an admin- istrative lawyer at the Montreal office of Davis LLP, says the key message from the decisions by both Federal Court judges is that internal appeal bodies must perform more than a judicial review function. Ultimately, he expects the Federal Court of Appeal to adopt Phelan's less deferential standard of review. "If you look at the intent of Par- liament when it created the RAD, I think they wanted a body that could review the RPD decision on the full facts. That's my sense, although I wouldn't stake my bot- tom dollar on it," says Landry. Robinson says the intricacies of the argument sailed over the heads of her clients, Muslim refu- gee claimants from Kosovo who had f led after receiving threats for their work with U.S. government contractors in Iraq. However, she says they were happy with Phel- an's decision that ordered their case back for rehearing by a dif- ferently constituted panel of the appeal division after the initial re- jection of their case by the refugee protection division. LT FOCUS One of the most intuitive document- review tools available, Case Logistix® will help your discovery teams organize, analyze, and produce anything from paper to Electronically Stored information (ESI). And now you can supercharge your speed and accuracy with a new user interface, advanced search, and analytics. 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