Clarifying the Role of the Refugee Appeal Division: Huruglica v Canada

In Huruglica v Canada (Minister of Citizenship and Immigration), [2014] FCJ No 845, a decision released on August 22, 2014, the Federal Court clarified that the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB) serves an appellate, rather than a judicial review, function.

Background

The applicants—Bujar Huruglica, Hanife Huruglica, and Sadije Ramadani—are citizens of Kosovo that applied for refugee status in Canada in 2012 on the basis that their families were considered to be traitors to Islam by an Islamic extremist group, the Wahhabi. Bujar, Sadije, and Sadije’s son, Halit (whose refugee claim was joined to the applicants but was not part of the RAD proceeding) had all worked for the US government or US government contractors at some point in Iraq, Afghanistan, and Kosovo.

In 2011, Halit’s wife received calls threatening death unless Halit stopped working with the US military in Iraq. The police provided little assistance and Halit and his wife subsequently travelled to the US and then to Canada, where they claimed refugee protection. In 2012, members of Wahhabi visited Sadije in her home and threatened to kill her and her family because they were traitors to Islam. The police did nothing and Sadije fled to the US. In 2013, Hanife received a call threatening her husband, Bujar. Also unable to get an adequate response from the police, the two left for the US and later travelled to Canada with Hanife’s mother, Sadije.

On June 19, 2013, the Refugee Protection Division (RPD) found that the applicants were not convention refugees. Although the RPD decision found the evidence to have been given in a straightforward manner, the RPD stated that the time the applicants had spent in the US on visitors’ visas without making a refugee claim in the US undermined their credibility. The RPD also found that the documentary evidence did not support the power and presence of Islamic extremists in Kosovo put forward by the applicants.

The subsequent appeal to the RAD was heard on September 5, 2013 and the decision was issued on the same day. The presiding board member, without further oral or additional evidence, confirmed the RPD’s decision. In its decision, the RAD dealt with the standard of review to be applied by an administrative tribunal and concluded that it was appropriate to apply a reasonableness standard to the RPD’s decision.

Issues

The issues that were identified by the Court in this judicial review were what standard of review to apply to the RAD’s determination that a reasonableness standard was appropriate with respect to the RPD’s decision, whether the RAD erred in determining that the RPD’s decision was reviewable on a standard of reasonableness, and whether the RPD’s state protection determination as adopted by the RAD is legally sustainable.

Note that the state protection issue will not be a focus of this piece because it was not extensively commented on in the Court’s decision.

Analysis

The Court found that correctness was the appropriate standard of review to be applied by the Court to the RAD’s determination of the standard of review to apply to the RPD decision. This finding was based on three reasons: (1) no clear determination had been made by the Federal Court of the standard of review to be applied in these kinds of cases; (2) selecting an appropriate standard of review is a legal question outside of the RAD’s expertise; and (3) a determination of the standard of review to be applied by appellate tribunals has significance beyond the refugee context.

Given the particulars of the circumstances, the Court determined that the RAD had indeed erred in applying a reasonableness standard to the RPD’s decision. In coming to this conclusion, the Court emphasized that the RAD possesses a distinct role from that of the Federal Court, stating that reviewing RPD decisions simply for reasonableness would only duplicate the role of judicial review. While there are circumstances where applying a reasonableness standard to the RPD may be appropriate—for example, in instances where credibility is a determinative issue—a broadly deferential approach is not justified.

The creation of an appellate tribunal indicates that Parliament intended to achieve something other than what is available upon judicial review, a principle summarized in British Columbia Society for the Prevention of Cruelty to Animals v British Columbia (Farm Industry Review Board), 2013 BCSC 2331. The Court thus stated that:

in creating an appellate body, within the executive branch of government, the principle standard of review, a function of the division of powers between the executive and the judiciary, is of lesser importance and applicability.

The relationship between the RPD and the RAD, therefore, resembles the relationship between a trial and appellate court. Furthermore, the RAD possesses broad remedial powers which include the ability to substitute its own determination, unlike judicial review as well as expertise that is, at the very least, equal to that of the RPD.

In concluding that the RAD erred in applying a reasonableness standard to the RPD decision, the Court further concluded that the RAD is required to review every aspect of an RPD decision and conduct its own independent assessment. The RAD “is not restricted, as an appellate court is, to intervening on facts only where there is a ‘palpable and overriding error’” (para 55).

The Court gave the involved parties 30 days to make their submissions on how the question(s) to be certified should be worded. While the RAD has existed in the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA) for some time, it did not become operational until December 15, 2012. It will be interesting to see what further guidance the RAD receives from the Federal Courts with respect to the RAD’s function in the IRB.

Because the RAD did not become operational until somewhat recently, it is not surprising that issues have arisen regarding its proper function in the adjudication of refugee matters. As the decision in Huruglica indicates, it is imperative that the RAD does not simply duplicate the role of the RPD. Distinguishing the RPD’s role from that of the Federal Court is especially important given the limited options possessed by those whose claims fail at the RPD stage and the current government’s restrictive attitude towards refugee matters. Considering the fact that many claimants do not have access to the RAD simply because of their countries of origin or issues of credibility, it is imperative that the RAD play a meaningful and distinct role in the refugee determination process.