Writing for the unanimous panel in Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship) 2020 FCA 196, Justice Yves de Montigny agreed with an application judge who found that JGs with factual elements are sanctioned by powers conferred on the IRB chair under the Immigration and Refugee Protection Act.
However, the Federal Court of Appeal found the lower court judge erred when he ruled parts of three JGs unlawful and inoperable for improperly pressuring board decision makers into adopting as their own factual determinations made in Refugee Appeal Division (RAD) decisions designated as guides.
“I am of the view that the impugned JGs do not unlawfully fetter the Board members’ independence,” reads de Montigny’s Nov. 13 ruling, concurred in by Justices David Near and René LeBlanc. “They simply put claimants on notice that the current existing conditions seem 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.”
Lorne Waldman
Lorne Waldman, who acted for the Canadian Association of Refugee Lawyers (CARL) on the appeal, said the case may not be over yet, since he expects instructions from his client to seek leave to appeal to the Supreme Court of Canada.
“As far as we’re aware, no other case has been decided in which a guideline directing a tribunal with respect to factual issues has been permitted,” he said. “It raises an important issue, and I’m hoping that the Supreme Court will consider granting leave.”
Still, Waldman was encouraged by Justice de Montigny’s acknowledgment that JGs touching on findings of fact are “fraught with risks and difficulties,” given the changeable nature of country conditions. Noting that three of the four guides that were the subject of the application have since been revoked, the appeal panel said the prejudice to refugee claimants whose cases were decided on the basis of faulty JGs should not be minimized.
“This is why the decision to designate a JG should be taken with the utmost caution. It is not for courts to devise a system whereby the risk of mistake will be, if not eliminated, at least reduced to a minimum. Adjudicative decision-makers, however, must always use their discretionary powers wisely, and strive to avoid sacrificing fairness to consistency and expediency,” de Montigny wrote.
According to the decision, CARL objected to four JGs concerning refugee claimants from Pakistan, India, China and Nigeria, enacted by the IRB chair between July 2017 and July 2018 under para 159(1)(h) of IRPA as part of an effort to deal with a significant backlog of cases, while meeting “the twin requirements of fairness and efficiency” in decision making.
A Federal Court judge rejected CARL’s arguments that the chair exceeded his authority with the inclusion of factual determinations, and the appeal panel agreed, finding the chair’s interpretation of the IRPA provision was reasonable.
“Paragraph 159(1)(h) cannot be interpreted in a vacuum. The legislative context in which it is found is consistent with the broad interpretation that the Chairperson has given to that provision, namely to ensure that Board members carry out their duties efficiently and without undue delays,” de Montigny concluded.
Matthew Jeffery
But the Federal Court of Appeal parted with the application judge’s finding that the JGs regarding China, Pakistan and India imposed improper pressure on IRB members thanks to attached policy statements explaining that they were “expected to apply [JGs] in cases with similar facts or provide reasoned justifications for not doing so.”
“I fail to see how any of the impugned JGs improperly encroach upon Board members’ adjudicative independence,” de Montigny wrote, casting doubt on the idea that board members actually felt pressured by the JGs at issue, and questioning the reliability of statistics suggesting a significant proportion of board members were following them.
“Board members remain free to decide cases on the basis of their own assessment of the facts and of the evidence before them,” he added.
Whether or not the Supreme Court hears the case, CARL’s litigation may already have had the desired effect, according to Toronto immigration lawyer Matthew Jeffery, who notes that the single remaining JG — dealing with the persecution of Ahmadis in Pakistan — was the only one favourable to claimants in similar situations.
He said CARL’s challenge deserves at least some of the credit for the revocation of the other three JGs, including a designated RAD decision that concluded it was unlikely a wanted person could leave China using a passport with their own name, date of birth and photograph thanks to Chinese government security measures.
The Chinese JG was repealed in June 2019 over concerns about unsupported findings of fact, several months after the IRB backtracked on a JG regarding viable internal-flight alternatives for Sikh refugee claimants fleeing from the Punjab region India.
Arghavan Gerami
Another JG identifying several large Nigerian cities as internal-flight alternatives for individuals fearing non-state actors was revoked in April 2020.
“In my experience, the guidelines were quite detrimental to people making refugee claims from those specific countries. If they fell within the guidelines, members seemed to feel compelled to follow them, which resulted in a lot of unfair decisions, in my opinion,” Jeffery said. “The Federal Court of Appeal’s clarification that guides can’t be used to fetter the discretion of decision makers is a good result, even if CARL didn’t get everything they wanted.”
Ottawa immigration and refugee lawyer Arghavan Gerami would like to see the association keep pushing back against factual determinations in JGs.
“There should be no shortcuts to the determination of a refugee claim,” said the founder of Gerami Law P.C. “At the end of the day, every single detail counts, and the more decision makers are pulled away from the details of an individual claimant’s situation, the less fairly and independently they’re going to be able to decide a case.”
In an e-mailed statement, IRB spokesperson Line-Alice Guibert-Wolff said the decision “confirms the importance of soft law tools such as guidelines for large tribunals such as the IRB in fostering coherence in decision making.”
“The IRB has been vigilant in its monitoring of jurisprudential guides both before and during the litigation,” she added, promising that the board “will continue to monitor the accuracy and use” of its JGs in the future.
Source: www.thelawyersdaily.ca
