The Federal Court recently rendered three decisions, Alvarez v. Canada (Minister of Citizenship and Immigration) (“Alvarez”)1, Eng v. Canada (Minister of Citizenship and Immigration) (“Eng”)2 and Huruglica v. Canada (Minister of Citizenship and Immigration) (“Huruglica”),3 in which it attempted to clarify the standard of review the Refugee Appeal Division (“RAD”) ought to apply when reviewing the decisions of the Refugee Protection Division (“RPD”).

All three decisions agreed the language of the Immigration and Refugee Protection Act (“IRPA”)4 indicates the RAD was intended to serve as a specialized appellate tribunal and that it was not intended, nor designed, to act merely as a judicial review tribunal5. However, the Alvarez, Eng and Huruglica decisions differed significantly on the extent of the RAD’s power to review the RPD’s decisions on questions of fact. 

As a result, while the RAD and similarly specialized tribunals have been left with a clear answer regarding what not to do, the standard the RAD ought to apply when reviewing the factual determinations of the RPD is uncertain. This ambiguity causes an unwarranted deference that is a current trend amongst administrative tribunals and could impact their role and very existence.

As the RAD was only launched on December 15, 2012 to consider appeals against decisions of the RPD, few cases have been brought before the RAD. The RAD is less than two years old, and there is bound to be some confusion as they work to define their role. This bulletin reviews the three Federal Court decisions and how these decisions may shape the process for future cases before the RAD and other similar tribunals.

The RAD’s Assessment of its Role

Alvarez, Eng and Huruglica all dealt with applications of people seeking recognition as Convention refugees or persons in need of protection under sections 96 and 97 of the IRPA6. In each case, the RPD rejected the applications.

The RPD’s decisions were subsequently appealed to the RAD. On appeal, in all three cases, the RAD conducted an assessment of its role in relation to the RPD and the standard of review it believed it ought to use when reviewing the RPD’s decisions7.

Having determined that its purpose and function was to conduct a judicial review assessment of the RPD’s decision, the RAD concluded that since the issues upon which the decisions were being appealed were questions of fact, it ought to examine them against the judicial review standard of reasonableness. The RAD did not conduct its own assessment of the evidence. Rather, it took a deferential stance towards the RPD’s conclusions.

Based on its analysis, the RAD rejected the appeals and confirmed the RPD’s decisions8.

All three decisions were appealed under subsection 72(1) of the IRPA, which empowers the Federal Court to conduct a judicial review “with respect to any matter — a decision, determination or order made, a measure taken or a question raised…” under the IRPA.

The Federal Court Corrects the RAD

The Alvarez and Eng decisions were both decided by Justice Shore J., released on July 17, 2014, and are very similar with regards to the legal reasoning used and the conclusions reached9.

On August 22, 2014, the Huruglica decision was released. This decision was rendered by Justice Phelan J. and made no reference to the recently released Alvarez and Eng decisions.

The Shore J. and Phelan J. decisions both rejected the RAD’s conclusion that, in reviewing the RPD’s decisions, it was required to apply the judicial review standard of reasonableness and show deference to the RPD’s assessment of the evidence.

The reasonableness standard of review defined by the Supreme Court of Canada in Dunsmuir v. New Brunswick is often used by general courts, such as the Federal Court, when reviewing the determinations made by specialized administrative tribunals for the reason that such tribunals often “will have particular familiarity” and expertise in the law that Parliament has statutorily mandated them to apply10.

Shore J. and Phelan J. both agreed that the justification for imposing a deferential standard of review on a general court performing a judicial review of the decisions of a specialized administrative tribunal did not apply to the relationship between the RAD and the RPD since, unlike a general court, the RAD was also a specialized tribunal11.

In addition, both Shore J. and Phelan J. agreed that the presence of section 111 of the IRPA confirmed that Parliament did not create the RAD to act as a judicial review body. Phelan J. described the RAD as being equipped with “broad remedial powers”12. Similarly, Shore J. reasoned that the presence of subsection 111(1) in the IRPA, a provision which enables the RAD to “set aside the determination [of the RPD] and substitute a determination that, in its opinion, should have been made,” indicates that:

“Parliament seems to have wanted to confer a broad power of intervention on the RAD, thus allowing the RAD to dispose of the merits of appeals and not only to determine whether the RPD's decision was made in a reasonable manner as submitted by the Member in the present matter”13.

Phelan J. and Shore J. further agreed that, while it would be appropriate for the RAD to defer to the RPD’s findings on certain issues given the RPD’s position as a court of first instance (for example, the RPD is better situated than the RAD to decide questions of credibility since the RPD has the opportunity to observe and hear witnesses at hearings)14, in order for the RAD to fulfill its role under the IRPA, the RAD must conduct “its own assessment” of the evidence that was presented before the RPD15.

Justices Disagree on Level of RAD Standard of Review

Despite the many significant points of agreement between Shore J. and Phelan J., the Justices came to different conclusions regarding the standard of review which the RAD ought to apply to questions of fact.

On the one hand, Alvarez and Eng held that the RAD’s powers of intervention on questions of fact are the same as an appellate court. That is, it may intervene in cases where the RPD made a “palpable and overriding error”16.

On the other hand, the Huruglica decision went much further. Phelan J. held that, “the RAD is required to conduct a hybrid appeal”17 and “it is not restricted, as an appellate court is, to intervening on facts only where there is a "palpable and overriding error”18. According to Phelan J., the RAD has been statutorily constituted with powers beyond that of an appellate court such that the RAD must substitute its own judgment whenever it disagrees with the RPD’s decision on the facts, whether or not there is a "palpable and overriding error”.

RAD Jurisdiction Still Unclear: Federal Court of Appeal to Weigh in

While any analysis of the function and powers of a specialized administrative tribunal must begin with its enabling legislation, Alvarez, Eng and Huruglica send a clear message to similar administrative tribunals that Parliament did not intend these tribunals to serve a judicial review function. The tribunals’ responsibility is to ensure the integrity of the proceedings below and to reduce needless applications before the Federal Court (and not to merely undertake a duplicative role to that of the Federal Court)19.

Through its decisions in Alvarez, Eng and Huruglica, the Federal Court made it clear to the RAD that it cannot merely apply the deferential standard of reasonableness and conduct a judicial review of the RPD’s decisions. It must weigh the evidence itself and conduct its own assessment.

Alvarez, Eng and Huruglica are less clear regarding the extent of such tribunals’ power to intervene on questions of fact and the scope of the RAD’s jurisdiction.

Given the lack of jurisprudence on the jurisdiction of the RAD, Phelan J., in his judgment decided to use his power under section 74(d) of the IRPA to certify “a serious question of general importance” to be decided by the Federal Court of Appeal.

The RAD will therefore have to wait for the Federal Court of Appeal to weigh in and address the inconsistencies created by the Alvarez, Eng and Huruglica decisions.

These decisions exemplify the trend amongst administrative tribunals of utter deference for the decision maker. The impact is such that it questions the very existence and raison d’être of these tribunals. We expect this appeal to be heard by mid-year 2015 and will keep you abreast of any developments.

Jennifer Stewart