Appeals and Judicial Remedies

• Author: Sasha Baglay/Martin Jones
• Pages: 329-369

329

CHAPTER 10

APPEALS AND

JUDICIAL REMEDIES

A. INTRODUCTION

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

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

a negative decision can lead to the loss of status and, ultimately, re-

moval from Canada. For those seeking protection from abroad, a nega-

tive decision not only bars them from resettlement in Canada, but also

leaves them residing i n potentially dangerous conditions. The ability to

challenge negative decisions through appeals and other judicial rem-

edies is important for those affected by the decisions as well as for the

overall integrity of the refugee status determination process.

As discus sed previously, the Convention Relating to the Status of Refu-

gees is largely silent on matters of procedure.1 That it fails to delineate

the scope of a rejected refugee claimant’s appeal rights is not surprising.

However, the Executive Committee of the United Nations High Com-

missioner for Refugees (UNHCR) has adopted the following conclusion

mandating that rejected refugee claimants be allowed to seek review of

their refugee status determination:

If the applicant is not recognized, he should be given a reasonable

time to appeal for a formal reconsideration of the decision, either to

1 28 July 1951, 189 UNTS 150 [Refugee Conve ntion].The exception to thi s

proposition is found in a rt 32 which requires, generall y, that the expul sion of a

recognize d refugee occur only “in accorda nce with due process of law.”

REFUGEE L AW330

the same or to a different authority, whether administrative or judi-

cial, according to t he prevailing system.2

Furthermore, access to such a right of review is not limited to a

subset of rejected refugee claimants, but rather extends to even those

refugee claimants whose claims have been determined to be “mani-

festly unfounded.”3

Depending on the statistics used, about half of all refugee claimants

have their claim denied by the Refugee Protection Division (RPD) of the

Immigration and Refugee Board (IRB) (see Appendix D, Table 1). Some

overseas refugee applicants are a lso refused, although for practical reasons

these individuals are much less likely to challenge their negative deci-

sions. The Immigration and Refugee Protection Act along with the Refugee

Protection Division Rules and the Refugee Appeal Division Rules provides

three major mechanisms by which a rejected claimant may challenge a

negative decision: (1) a motion to reopen, (2) an appeal, and (3) a judicial

review. In addition, rejected claimants who have exhausted all domestic

remedies may seek redress through various international human rights

mechanisms.

With the exception of the international mechanisms, each of these

avenues of redress may also be invoked by the government of Canada

to challenge a decision of the Board to gr ant protection. Not infrequent-

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

the Minister either t hrough a motion to reopen or, more likely, through

appeal or judicial review. For obvious reasons, the decisions of immi-

gration off‌icers concerning protection may not be similarly challenged.

In the remainder of this chapter, each of the various mechanisms

through which a rejected refugee claima nt and/or an overseas applicant

may challenge a negative determination will be discussed.

B. MOTION OR REQUEST TO REOPEN

In general, the doctrine of functus off‌icio prevents a decision maker

from revisiting his decision. It applies primarily to judicial and quasi-

judicial decision makers; hence, there is g reater f‌lexibility with respect

of immigration off‌icers’ decisions. The doctrine was described in the

2 UNHCR Executive Com mittee, “Conclusion No 8 (XXVIII) Determ ination of

Refugee Statu s (1977),” 8(e)(vi).

3 UNHCR Executive Com mittee, “Conclusion No 30 (XXXIV) The Problem of

Manifest ly Unfounded or Abusive Applications for Ref ugee Status or Asylum

(1983).”

Appeals and Jud icial Remedies 331

following terms by the Supreme Court in Cha ndler v Alberta Association

of Architects:

As a general rule, once such a t ribunal has reached a f‌in al decision in

respect to the matter that is before it in accordance w ith its enabling

statute, that decision cannot be revisited because the tribunal has

changed its min d, made an error within jur isdiction or because there

has been a cha nge of circumsta nces.4

Absent statutory authorization to the contrary, the only situations

in which a decision can be rev isited are (1) where there has been a “slip

in drawing up the formal judgment,” (2) “where there was an error in

expressing the manifest intention of the Court,” and (3) where there

has been a breach of natural justice.5 As the third situation is typically

invoked in a request to reopen a decision, it bears greater elaboration.

It has been described and justif‌ied in the following terms:

If the error which render s the decision a nullity is one that tai nts the

whole proceeding, then the tribunal must start afresh . . . . [if there

was] a denial of natural justice which vitiated the whole proceeding.

The tribunal wa s bound to start afresh in order to cure the defect.6

Based upon the foregoing, the doctrine of funct us off‌icio will not be

circumvented by a simple allegation that new evidence has arisen or

that not all possible evidence was before the decision maker.7 Nor will

functus off‌icio be circumvented by proof of a substantive error in the

decision. In such cases, a pre-removal risk assessment (PRRA) applica-

tion and an application for judicial review are the appropriate remedie s.

The reopening of a case is seen as the means to uphold natural justice.

This is made explicit in the Refugee Protection Division Rules and the

Refugee Appeal Division Rules,which contain identical wording: “The

Division must not allow the application unless it is established that

there was a failure to observe a principle of natural justice.”8 Thus, the

power to reopen a refugee claim is very limited:9 if the division f‌inds

that an applicant has be en afforded a fair hearing, there are no grounds

4 [1989] SCJ No 102 at para 20, Sopinka J [Chandler].

5 Ibid.

6 Ibid.

7 Longia v Canad a (Minister of Employment and Immigration), [1990] 3 FC 288

(CA); and, inter alia, Iqbal v Canada(Minister of Citizenship an d Immigration)

(1996), 33 Imm LR (2d) 179 (FCTD).

8 Refugee Protection Division Rules, SOR/2012-256, r 62(6) [RPD Rules]; Refugee

Appeal Division Rules, SOR/ 2012-257, r 49(6) [RAD Rules].

9 Huseen v Canada (Minister of Citizen ship and Immigration), 2015 FC 845 [Huseen].