Sorting out Refugee Appeals
Canadian decisions on internal appellate review are coming thick and fast. Another one arrived last week, with some media fanfare: Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799. Here, Phelan J. gave the Refugee Appeal Division a very broad role indeed. Rebuking the Division for applying judicial review standards to an internal appeal, he gave the following guidance:
 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”.
This chimes with my preferred approach and goes further than his colleague, Shore J. (in a decision which was already an improvement on the Division’s conception of its mandate).
But there is a problem. In deciding to adopt a ‘judicial review’ approach to refugee appeals, the Division was interpreting its home statute. Under Canadian law, its interpretation of its mandate is presumptively entitled to deference. Phelan J. held that setting the standard of review was a question of central importance to the legal system falling outside the Division’s expertise and therefore applied a standard of correctness:
 The selection of the appropriate standard of review is a legal question well beyond the scope of the RAD’s expertise, even though it depends on the interpretation of the IRPA, the RAD’s home statute…
 The determination of the RAD’s standard of review for an appeal of a RPD decision is outside its expertise and experience. Similarly, the determination of what is or what distinguishes an issue of fact from an issue of mixed law and fact and further, the determination of distinguishing what is an issue of law are likewise outside the expertise and experience of the RAD.
 The determination of the standard of review that an appellate tribunal must apply to a lower decision maker and the process by which that determination is reached has significance outside the refugee context.
This seems like the sort of question apt for resolution by a court, but I am not persuaded that it is one for the central question category. Resolving the standard of review question is certainly of precedential value outside the refugee context, but it is nonetheless specific to a particular regulatory regime. It seems to me quite similar to McLean, a case involving a BC limitation period — a concept well known to judges — that had many equivalents across the country. Yet the Supreme Court of Canada held that applying the general principles of limitation periods to a specific regulatory scheme calls for deference. In my view, the central question argument here runs into the same objection.
There is some room, however, to argue that this sort of question is jurisdictional based on the definition of jurisdictional questions recently provided by the Court in Canadian National (para. 61). This is a situation in which the Division has to expressly determine the “scope” of its powers. That its determination is made by reference to the powers of another body (the Refugee Protection Division) underscores this conclusion. It is not the usual case of an individual spuriously claiming that a court is better placed to determine whether a regulator has the power to do (or abstain from doing) X; correctness review on this type of question is (at least in Canada) inappropriate for well-known reasons relating to administrative autonomy and expertise. Rather, it is a decision-maker deciding — before it even opens a file! — what the extent of its mandate is. And, by extension, the mandate of the first-instance decision maker. Indeed, in Canadian National the Court resolved a question of the respective appellate jurisdictions of the cabinet and Federal Court of Appeal without discussing standard of review: this situation is analogous.
It may also fall into the overlapping jurisdiction category. It is not, I admit, your typical situation of overlap, where both regulator A and regulator B can plausibly claim competence. Nonetheless, internal appellate review cases also involve drawing lines between distinct tribunals or decision-makers. The scope of two regulators’ authority is at issue. Here, the first-instance decision-maker is assigned a role by the Division but has no say in the matter. It would be desirable to have a reviewing court act as an independent arbiter to draw the lines between the bodies.
If reasonableness is the standard of review, all is not necessarily lost. Here, the Division’s “range” of reasonable outcomes is constrained by statutory language giving the Division virtually plenary authority; constitutional considerations (a reviewing court cannot perform a judicial review of a ‘judicial review’ conducted by the Division, thereby undermining its constitutionally guaranteed role); the fact that calibrating the standard of review is a matter of legal principle; and the importance of accurate decision making to refugee claimants (see para. 91 here).
Phelan J. has agreed to certify a question or questions to the Federal Court of Appeal. I expect that the standard of review issue will be amongst them.
UPDATES, November 24:
(1) Huruglica is being appealed to the Federal Court of Appeal. This is unsurprising, as there are now many Federal Court decisions on this issue and the Division needs clear guidance on how to do its work.
(2) There will be no deference to the Division on the certified question: Kanthasamy v. Canada (Citizenship and Immigration), 2014 FCA 113 so the matter will be considered de novo (see my note on Kanthasamy).
(3) Martineau J. provides an excellent overview of the issues, and a critique of Phelan J.’s standard of review analysis, in Djossou c. Canada (Citoyenneté et Immigration), 2014 CF 1080 (only in French for the moment).
(4) Readers will also be interested in Craig Forcese’s take on this general issue.
This content has been updated on November 24, 2014 at 10:02.