Appeals and Judicial Remedies

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

329

CH AP TER 10

APPEALS A ND

JUDICIAL R EMEDIES

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 resett lement 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 a s for the

overall integrity of the refugee status determination proces s.

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 r ights is not surprisi ng.

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

missioner for Refugees (UNHCR) has adopted the following conclusion

mandating th at rejected refugee claimants be al lowed to seek review of

their refugee status determ ination:

If the applicant is not recog nized, he should be given a rea sonable

time to appeal for a forma l reconsideration of the decis ion, 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 differe nt authority, whether administr ative or judi-

cial, according to t he prevailing s ystem.2

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

subset of rejected refugee claimants, but rather e xtends to even those

refugee claimants whose claims have been determ ined to be “mani-

festly unfounde d.”3

Depending on the statist ics used, about half of all refugee cla imants

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

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

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

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

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

Protection Division Rules and the Refugee Appeal D ivision Rules provides

three major mechanisms by which a rejected claimant may ch allenge a

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

review. In addition, rejected claimants who have exh austed all domestic

remedies may seek redre ss through various intern ational human rights

mechanisms.

With the exception of the international mechanisms, each of t hese

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 thi s chapter, each of the various mechanism s

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

may challenge a negative determin ation will be discu ssed.

B. MOTION OR REQUEST TO REOPEN

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

from revisiting hi s decision. It applies primarily to judici al and quasi-

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

of immigration off‌icers’ decisions. The doctr ine 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

(19 83).”

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 mat ter that is before it in accordance w ith its enabling

statute, that deci sion cannot be revisite d because the tr ibunal 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 authorizat ion 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 form al 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 gre ater elaboration.

It has been described and justif‌ied in the following ter ms:

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

whole proceeding, then the t ribunal must sta rt afresh . . . . [if there

was] a denial of natura l justice which viti ated the whole proceeding.

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

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

circumvented by a simple allegation that new evidence ha s 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 ri sk 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 t he Refugee Protection Division Rules and t he

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 obser ve a principle of natural justice.”8 Thus, the

power to reopen a refugee claim is very l imited:9 if the division f‌ind s

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].