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REFUGEE PROTECTION - Practice and procedure

Wednesday, December 16, 2020 @ 6:44 AM  


Appeal by the Canadian Association of Refugee Lawyers and cross-appeal by the Minister of Citizenship and Immigration from a decision granting in part two applications for judicial review challenging the designation of four Jurisprudential Guides by the Chairperson of the Immigration and Refugee Board. The Chairperson identified four decisions of the Appeal Division as Guides under s. 159(1)(h) of the Immigration and Refugee Protection Act. The Guides concerned refugee claimants from Pakistan, China, India and Nigeria. The Guides were meant to facilitate decision making in a manner that met the twin requirements of fairness and efficiency. Board members were expected to apply the Guides in cases with similar facts or provide reasoned justifications for not doing so. The appellant disputed the Federal Court’s finding that the Chairperson had the authority under s. 159(1)(h) to issue jurisprudential guidelines that included factual determinations. The Minister cross-appealed from the court’s finding that the Guides unlawfully fettered the discretion of Board members to make their own factual findings or improperly encroached upon their adjudicative independence. 

HELD: Appeal dismissed. Cross-appeal allowed. The Chairperson had the authority to issue Guides on issues of fact in accordance with the plain words of s. 159(1)(h). This authority was conferred in the broadest terms, if their purposes were to assist members in carrying out their duties, and with the only requirement that their issuance be preceded by consultation with the Deputy Chairperson. The impugned Guides did not unlawfully fetter the Board members’ independence. They simply put claimants on notice that the current existing conditions seemed to suggest certain conditions in a given country, without providing a definitive assessment of the facts and without preventing claimants and their counsel from distinguishing their particular circumstances. The accuracy of the review of a specific country condition with respect to Internal Flight alternatives, state protection or objective fear was not dependent upon a claimant’s specific circumstances and was not meant to be. Board members were always free to accept or reject the reasoning used in a Guide when applying it to the unique personal narrative of the claimant before them. The Guides were meant to apply to all claimants originating from the same country to which they were directed and whose situation broadly raised the same issues. Board members remained free to decide cases based on their own assessment of the facts and of the evidence before them. The evidence did not establish that Board members felt pressured as to how they should conduct themselves. The cumulative effect of the facts and context surrounding the promulgation of the Nigeria Guide did not give rise to a reasonable apprehension of bias. There was no evidence to suggest that the Chairperson made any attempt to identify the decision as a Guide before it was finalized or to interfere with the Board member’s discretion in coming to her own conclusions. There was no evidence that the Board was looking for quick dismissals of refugee claims by persons of Nigerian origin, as opposed to streamlining the process by reducing the length of hearing time and the time spent writing or rendering oral reasons.

Canadian Assn. of Refugee Lawyers v. Canada (Minister of Immigration, Refugees and Citizenship), [2020] F.C.J. No. 1093, Federal Court of Appeal, D.G. Near, Y. de Montigny and R. LeBlanc JJ.A., November 13, 2020. Digest No. TLD-December142020005