Appeals and Judicial Remedies

• Author: Martin Jones - Sasha Baglay
• Profession: Centre for Refugee Studies, York University - Centre for Refugee Studies, York University. Faculty of Criminology, Justice and Policy Studies, University of Ontario Institute of Technology
• Pages: 266-296

CHAP TER 10

APPEALS AND

JUDICIAL R EMEDIES

A. OVERVIEW

The rendering of a negative decision in a refugee matter can h ave a pro-

found impact on an individual. For those seeki ng protection in Canada,

a negative decision can lead to the loss of st atus and, ultim ately, remov-

al from Canada. For those seek ing protection from abroad, a negative

decision effectively bars them from resettlement in Canada and may

impede their ability to gain resettlement elsewhere. The ability to ch al-

lenge negative decisions through appea ls and other judicial remedies is

important for those affected by t he decisions as well as for the overal l

integrity of the refugee status determination proces s.

As discus sed previously, the Refuge e Conven tion i s largely silent on

matters of procedure.1 That it fails to delineate the scope of a failed refugee

claimant’s appeal rights is not surprising. However, the Executive Com-

mittee of the United Nations High Commissioner for Refugees (UNHCR)

has adopted the following conclusion mandat ing that failed refugee claim-

ants be allowed to seek review of their refugee status determination:

If the applicant i s not recognized, he shou ld be given a reason able

time to appeal for a forma l reconsideration of the dec ision, either to

1 The exception to thi s proposition is found in art. 32 which r equires, generally,

that the ex pulsion of a recognized ref ugee occur only “in accordance w ith due

process of law.”

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Appeals and Judicial Remedies 267

the same or to a dif ferent authority, whether admin istrative or jud i-

cial, according to the prevailing system.2

Furthermore, access to such a r ight of review is not limited to a sub-

set of failed refugee claimants, but rather extends to even those refugee

claimants whose cl aims have been determi ned to be “manifestly un-

founded” (or, in the Canadian context, “ with no credible basi s”).3

Depending on the stati stics used, about hal f of all refugee claim ants

have their claim denied by the Refugee Protection Division (RPD).4 Some

overseas refugee applicant s are also refused, although for practical rea sons

these individua ls are much less likely to challenge their negative deci-

sions. The RPD Rules and the Immigration and Refugee Protection Act (IRPA)

provide two major mechani sms by which a failed claimant ma y challenge

a negative decision: a motion to reopen and a judicial review. There is also

a formal right of statutory app eal to an appellate d ivision of the Immig ra-

tion and Refugee Board (IRB) provided for in t he IRPA; however, this pro-

vision has not yet come into force. Failed refugee claima nts may also seek

redress through var ious international human rights mechani sms.

With the exception of the international mechanisms, each of these

avenues of redress may als o be invoked by the government of Canada to

challenge a decision of the Board to g rant protection. Not infrequently,

decisions to grant refugee protection by the RPD are challenged by the

Minister either through a motion to reopen or, more likely, through

judicial review. For obvious reasons, t he decisions of immigration of-

f‌icers concerning protection may not be similarly challenged.

In the remainder of thi s chapter, each of the various mechanisms

through which a failed ref ugee claimant and /or an overseas applicant

may challenge a negative determination will be discussed.

B. MOTIONORREQUESTTOREOPEN

In general, the doctri ne of functus off‌icio prevents a decision maker

from revisiting h is or her decision. It is a doctrine which applies pri-

2 UNHCR Executive C ommittee, Conclusion No. 8 (XXVIII) – 1977 – Determ ina-

tion of Refugee Stat us.

3 UNHCR Executiv e Committee Conclusion No. 30 (XXXIV) – 1983 – The P roblem

of Manifest ly Unfounded or Abusive Application s for Refugee Status or Asylum.

4 The most recent stati stics (for 2005) of the Board indicate t hat the number of

substantive p ositive (12,061) and negative decis ions (11,846) were almost equ al.

However, if the number of cl aims abandoned (1,634) is added to the number

of substanti ve negative decisions then the tot al number of negative decision s

slightly outweig hs the positive decision s.