Judicial Review of Refugee Decisions

There are few things more devastating for a refugee claimant than when the Refugee Protection Division rejects your claim.  At that point, you essentially have two main options: make a pre-removal risk assessment application or seek judicial review.

The objective of a judicial review is to convince a judge that the Refugee Protection Division’s rejection of your claim was either unreasonable or incorrect in law.  Applicants cannot introduce new evidence, and are limited to the evidence that was before the Refugee Protection Division Member that heard your case.

In this post, I outline some possible grounds that you may use to successfully obtain a judicial review.  While I strongly recommend that you hire a lawyer to conduct your judicial review, I hope that this post will provide you with some initial ideas to discuss with your counsel.

Did the RPD misapply credibility during the section 97 analysis?

Under section 96 of IRPA, a claimant must establish the existence of a well-founded fear of persecution tied to a 1951 Convention ground.  However, under section 97 of IRPA, a claimant must show on a balance of probabilities that removal from Canada would subject them personally to specified dangers and risks.

The evidence necessary to establish a refugee claim under section 96 of the Act is different from that required to establish a claim under section 97 of the Act.  Section 97 requires that the Board consider the generally known country conditions of the claimant’s country of origin.  The Board is required to analyze how these conditions might establish a section 97 claim.  It is a wholly objective analysis, and must be evaluated in light of all relevant considerations and with a view to the country’s human rights record.

A negative credibility determination in respect of a refugee claim under section 96 is not necessarily dispositive of the consideration under section 97.

There have been instances of the court overturning a Refugee Protection Division claim where the Board relied on credibility to dismiss a s. 97 issue.  For example, if you provided evidence that people in a similar situation to yourself face persecution, and the Refugee Protection Division relied on certain credibility issues to reject your claim, then you should consider seeking judicial review. (Dunka v. Canada, 2010 FC 1322)

Did the RPD fail to consider a document?

RPD members are required to consider all the evidence that is presented.  If the RPD determines that an applicant was not credible, then it is important that a failed claimant look at whether the member considered corroborating evidence.  In Khalil Ibrahim v. Canada (2011 FC 20), for example, the Board found that a Sudanese refugee claimant was not credible.  However, it failed to consider a statutory declaration signed by the claimant’s priest which supported her story.  Accordingly, the decision was overturned.

Did the Board fail to consider evidence?

The RPD is generally presumed to have considered all of the evidence and need not specifically mention any specific piece of evidence. However, as the Court noted in Cruz Penida (2011 FC 81), where the Board fails to mention particularly probative evidence, or fails to refer to contrary evidence while considering evidence that supports its position, the Court may infer that the Board overlooked the contrary and probative evidence.

As the Court noted in Cepeda-Gutierrez (1998), the more important the more important the evidence that is not mentioned specifically and analyzed in the agency’s reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact “without regard to the evidence”. The agency’s burden of explanation increases with the relevance of the evidence in question to the disputed facts.

A blanket statement that the Board has considered all the evidence will therefore not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the Board’s finding of fact. Moreover, when the RPD refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the it overlooked the contradictory evidence when making its finding of fact.

Did the Board place undue emphasis on what was said at the Port of Entry?

Refugee claimants often do not reveal many facts when they first arrive in Canada that they later seek to rely on in their refugee claim.  Occasionally, the Refugee Protection Division unreasonably finds that these facts are unreliable solely because the claimant did not raise them when he first arrived in Canada.

This may be an error of law.

The courts have held that the Board should be careful not to place undue reliance on Port of Entry statements because the circumstances surrounding the taking of those statements is far from ideal and questions about their reliability will often arise.  (Wu v. Canada, FC 2010).  This is especially the case given that most refugees have lived experienced in their countries of origin which give them good reason to distrust persons in authority. (RKL v. Canada, FCT 2003)

 


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