Judicial Review, Questions of Law of Central Importance and Refugee Appeals.

Over the past year, there has been a lack of comity amongst Federal Court of Canada justices regarding the appropriate standard of review of decisions emerging from the Immigration and Refugee Board of Canada (IRB) and particularly with respect to questions of law relating to or arising from the Immigration and Refugee Protection Act (IRPA).[1]

Since the Supreme Court of Canada's decision in Dunsmuir v New Brunswick, there are currently two standards of review in effect at common law with respect to administrative law decisions - reasonableness and correctness. Reasonableness represents a deferential standard that is concerned "mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law."[2] By contrast, under a correctness standard, a "reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question."[3]

The Dunsmuir Court also highlighted that questions of law will not necessary deserve a correctness standard. The SCC has specifically identified constitutional questions, questions of jurisdiction, questions regarding the jurisdictional lines between two or more competing specialized tribunals, and questions of law that are of central importance to the legal system and outside of the expertise of the decision maker as deserving a correctness standard.[4] However the Court has asserted in post-Dunsmuir decisions that when decision-makers are interpreting or applying their "home" statute, there is a presumption of deference that should be accorded to their decisions.[5] 

All of this brings us back to the decisions of the IRB and in particular the Refugee Protection Division's (RPD) interpretations of law with respect to provisions of the IRPA in connection with s.96 (incorporating article 1A(2) of the Convention Relating to the Status of Refugees and as modified by article 1 of the 1967 Protocol Relating to the Status of Refugees).[6] In order to establish that one is a refugee, it must be established that the individual seeking refugee status is outside of their country of nationality or place of last habitual residence and is unable or unwilling to return on account of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion. Interpreting what constitutes, for example, a particular social group or a political opinion is (and has been interpreted to be) a question of law. However, when the RPD engages with such legal questions rooted in their home statute, should it be accorded deference? Or, because the grounds are derived from the Refugee Convention which is fundamentally about human rights protection, is what is involved a question of law of central importance to the legal system and outside the expertise of the RPD members?

While it may be fair to presume a deferential standard given the home statute presumption, there are nevertheless legitimate reasons for why a correctness standard is appropriate when reviewing the RPD's legal interpretations of s.96 and other related refugee provisions in the IRPA such as s.98. In Pushpanathan v Canada (Minister of Citizenship and Immigration), the Supreme Court of Canada applied a correctness standard when interpreting article 1F(c) of the Refugee Convention as incorporated into the former Immigration Act.[7] The Court concluded that article 1F(c) was primarily about the protection of human rights and the IRB had no relative expertise on such matters.[8]

Although Pushpanathan was a pre-Dunsmuir decision, more recently the Court in Ezokola v Canada (Citizenship and Immigration), interpreted the concept of complicity with respect to article 1F(a) of Convention.[9] In the process of doing so, the Court rather unhelpfully made no attempt to address the standard of review. However, in arriving at its interpretation, the Court appears to have engaged in its own legal interpretation rather than assessing whether the RPD's legal interpretation was reasonable. 

In Canada (Citizenship and Immigration) v B472, Justice Harrington articulated that a correctness standard was appropriate for interpreting the concept of "membership in a particular social group" as part of the definition of the Convention refugee situated within s.96 of the IRPA.[10] He observed that this was fundamentally about human rights and the IRPA imposed no requirements that RPD members have legal expertise in order to hold positions.[11] This was distinct from the conclusions arrived at by other justices of the Federal Court of Canada - see. e.g. Canada (Citizenship and Immigration) v B380; PM v Canada (Citizenship and Immigration); and SK v Canada (Citizenship and Immigration). It is also noteworthy that Justice Shore in Dufour v Canada (Citizenship and Immigration) applied a correctness standard with respect to other portions of the IRPA. 

A recent decision of the Federal Court of Appeal also suggests a correctness standard might be appropriate when dealing with human rights provisions of the IRPA. In Canada (Attorney General) v Johnstone,[12] the Court of Appeal was tasked with determining whether "family status" under the Canadian Human Rights Act [CHRA] incorporated parental obligations such as necessary and immutable childcare obligations that engaged a parent's legal responsibility for the child.[13] The Court concluded that the correctness standard was appropriate. It did so by following the SCC's decision in Mowat which indicated that where broad human rights principles were in play, a correctness standard may well apply.[14] It is useful to remember here that the CHRA is the Canadian Human Rights Tribunal's home statute. Thus, if legal interpretations of the Canadian Human Rights Tribunal with respect to broad human rights principles found within the CHRA are to be accorded no deference, surely it is legitimate to accord no deference to the RPD's legal interpretations of human rights provisions within its own home statute - the IRPA. 

The lack of comity amongst Federal Court justices on the standard of review in such cases may lead to some disparate results. Justice Harrington at the end of his decision in B472 certified the following question of general importance for the Federal Court of Appeal to consider: "Is review by this Court of the meaning of “membership in a particular social group” in section 96 of the Immigration and Refugee Protection Act as determined by a member of the Refugee Protection Division of the Immigration and Refugee Board on the correctness or reasonableness standard?"[15] Answering this question will likely help to resolve the current lack of comity and give parties a better degree of certainty as to what the appropriate standard of review will be.

Notes

1. Immigration and Refugee Protection Act, SC 2001, c 27.

2. Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 SCR 190.

3. Ibid at para 50.

4. Ibid at paras 58-61.

5. Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61, [2011] 3 SCR 654; Smith v Alliance Pipeline Ltd, 2011 SCC 7, [2011] 1 SCR 160.

6.  Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954); Protocol Relating to the Status of Refugees, 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).

7. Pushpanathan v Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982 at para 42, 160 DLR (4th) 193.

8. Ibid at paras 46-50.  

9. Ezokola v Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 SCR 678.

10.  Canada (Citizenship and Immigration) v B472, 2013 FC 151.

11. Ibid.

12. Canada (Attorney General) v Johnstone, 2014 FCA 110.

13. Canadian Human Rights Act, RSC 1985, c H-6, s 3.

14. Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53, [2011] 3 SCR 471.

15. B472, supra note 10 at para 32. 

Welcome

Welcome to the blog space of the Migration Law Research Cluster (MLRC) located at the University of Manitoba’s Faculty of Law. Created in 2013, the MLRC is engaged in research on the intersections between law and migration, including the areas of immigration law and policy, refugee law and policy and migrant settlement and resettlement. The MLRC seeks to build knowledge and understanding in these areas and to foster interdisciplinary collaboration and community engagement.

The MLRC’s founding members are Gerald Heckman, Amar Khoday and Shauna Labman. Through this blog space, members will share, amongst other things, short commentaries or reflections on various matters connected to migration law. This may include posts on legislative and policy developments, judgments by courts and administrative decision-makers, as well as scholarly contributions of academics writing on issues of migration law. While rooted in Canada, our posts may also examine and explore developments taking place internationally and in other countries.