Understanding Judicial Review

Where a visa application has been refused and an applicant is convinced that the decision is unreasonable then it may be advisable to file an Application for Leave to Commence Judicial Review with the Federal Court of Canada (the “Federal Court” or the “Court”).

 

The Federal Court has the jurisdiction to review the decisions of visa officers. The Court will determine whether an immigration officer committed any reviewable errors that should result in the decision being set aside.  Reviewable errors include errors of fact, law, or breaches of procedural fairness.  If an applicant succeeds in Federal Court, then the Court will order that the immigration officer’s decision be set aside, and typically that the application be reconsidered by a different officer.

Usually, a successful judicial review will ultimately result in a positive decision from the second visa officer.  However, this is not always the case. Furthermore, as the Federal Court of Appeal determined in Lee v. Canada (Minister of Citizenship and Immigration), there is no obligation on the second immigration to specifically refer to the order of the Court and provide reasons as to how and why the second decision differs from the first.

In deciding whether to submit a judicial review application it is important to note that the Federal Court will not review or accept new evidence, but, rather, determine if an officer made an error based on the information that was before them.


Standard of Review in Refugee Appeal Division Hearings

On December 15, 2012, the Refugee Appeal Division (the “RAD“) began considering appeals against decisions from the Refugee Projection Division (the “RPD“) to allow or reject refugee claims.  According to the Immigration and Refugee Board of Canada’s website, the steps to a RAD appeal are:

  • Once you receive the written reasons for the decision from the Refugee Protection Division, you have 15 days to file a Notice of Appeal.
  • You have 30 days from the day you received your written reasons for the RPD decision to perfect your appeal by filing an Appellants Record.
  • The Minister may choose to intervene at any point in the appeal.
  • The RAD Member makes a decision on your appeal. In most cases, this decision will be provided to you no later than 90 days after you have perfected your appeal, unless an oral hearing is held.

Almost immediately there was uncertainty over what the role of the RAD was.  The RAD began operating under the assumption that it would review RPD decisions using the reasonableness standard, and its members began stating that the following principles governed its appeals:

  • that deference is owed to RPD findings of fact and questions of mixed law and fact;
  • that deference is owed to the RPD where the issue in a claim is factual;
  • that the role of the RAD was to ensure a fair and efficient adjudication and that refugee protection be granted where appropriate. As such, the RAD can substitute the RPD’s determination with its own;
  • that in some cases the RAD, in order to bring finality to the refugee process, may be entitled to show less deference to the RPD;
  • that while both the RPD and the RAD are specialized tribunals, the RPD had advantages in fact finding (particularly on credibility) which suggests deference; and
  • that the failure to show deference to the RPD would undermine the RPD’s process.

In Huruglica v. Canada (Citizenship and Immigration Canada), 2014 FC 799 the Federal Court determined that this was an incorrect approach.

Continue reading “Standard of Review in Refugee Appeal Division Hearings”


Court Certifies Question on Judicial Review of 117(9)(d) Refusals – [Updated August 6]

The Federal Court (the “Court“) in Habtenkiel v. Canada (Citizenship and Immigration), has certified a question that if answered in the affirmative would seem to pretty much shut the door on humanitarian & compassionate (“H&C“) appeals of s. 117(9)(d) refusals.  The certified question is:

In light of sections 72(2)(a), 63(1) and 65 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and the case of Somodi v. Canada (Minister of Citizenship and Immigration)2009 FCA 288 (CanLII), [2010] 4 F.C.R. 26 (F.C.A.), where the applicant has made a family class sponsorship application and requested humanitarian and compassionate considerations within the application, is the applicant precluded from seeking judicial review by the Federal Court before exhausting their right of appeal to the Immigration Appeal Division where the right of appeal is limited pursuant to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227?

That question is long and confusing, but lets break it down.

Continue reading “Court Certifies Question on Judicial Review of 117(9)(d) Refusals – [Updated August 6]”


PSLRB Rules CIC Bargaining with PAFSO in Bad Faith

As the Professional Association of Foreign Service Officers (“PAFSO”) strike enters its fifth month, the Public Service Labour Relations Board (“PSLRB”) has ruled that Citizenship and Immigration Canada (“CIC”) is bargaining with PAFSO in bad faith.  The PSLRB decision can be found here.

CIC has filed a judicial review application of the PSLRB decision.

There appears to be no end in sight to the PAFSO strike.  However, by now most individuals who frequently interact with CIC have likely realized that many applications are continuing to be processed, and that there are certain steps that can be taken to minimize the impact of the PAFSO job action.  Indeed, as the University of Toronto’s Varsity Newspaper reported:

For students, the PAFSO strike practically seems to have caused, at most, a limited problem. Visas, while sometimes delayed, are not being withheld with any significant regularity, and in fact seem to be getting processed more efficiently than ever.


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)

 



Federal Court Rules on Galloway Inadmissibility

The Federal Court has released its decision on the legality of the “decision” to prohibit former British MP George Galloway from entering Canada for having committed terrorism or been a member of a terrorist organization.
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Skilled Worker Non-Processing Letters Going Out

And so it begins.  Citizenship and Immigration Canada has begun sending letters to Federal Skilled Worker Applicants who applied prior to February 27, 2008, that their applications will not be processed, and that they will soon be contacted regarding a refund.

Regardless of what one thinks of the merits of cancelling the backlog (I am sympathetic to both sides’ arguments), the way in which the Government of Canada is executing its decision to cancel the applications is problematic.  Indeed, I believe that the government is acting in a way that will lead to court intervention.

In brief, the government is cancelling these applications without having yet passed any legislative changes permitting them to do.  The Immigration and Refugee Protection Act and its Regulations still state that the affected applicants are eligible to immigrate to Canada.

From what I can tell, the Minister is currently governing through press release.  Ironically, the press release notes that the cancellation and refund of the above applications will occur as a result of “proposed legislation”.

http://www.cic.gc.ca/english/department/media/releases/2012/2012-03-30a.asp

The proposed legislation has not yet been introduced either in the House of Commons or in the Canada Gazette. Despite that, Citizenship and Immigration Canada is already cancelling applications.

Press releases cannot trump statute, and I predict an upcoming wave of successful litigation.