Huruglica v. Can. (M.C.I.) (2016), 481 N.R. 207 (FCA)
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Temp. Cite: [2016] N.R. TBEd. AP.003
The Minister of Citizenship and Immigration (appellant) v. Bujar Huruglica, Hanife Huruglica and Sadije Ramadani (respondents) and Canadian Association of Refugee Lawyers and Canadian Council for Refugees (interveners)
(A-470-14; 2016 FCA 93; 2016 CAF 93)
Indexed As: Huruglica et al. v. Canada (Minister of Citizenship and Immigration)
Federal Court of Appeal
Gauthier, Webb and Near, JJ.A.
March 29, 2016.
Summary:
The applicants were Muslim citizens of Kosovo. Two of them worked for either the United States government or United States government contractors in Iraq, Afghanistan and Kosovo. As a result, the applicants were allegedly threatened by an Islamic extremist group who considered them to be traitors to Islam. Their claim for refugee status was dismissed by the Refugee Protection Division (RPD), as was an appeal to the Refugee Appeal Division (RAD). The applicants applied for judicial review.
The Federal Court, in a decision reported at (2014), 461 F.T.R. 241, allowed the application and referred the matter back for redetermination by a differently constituted panel of the RAD. The RAD erred by reviewing the RPD’s decision on the standard of reasonableness, rather than conducting an independent assessment of the applicants’ claim. The Minister of Citizenship and Immigration appealed.
The Federal Court of Appeal dismissed the appeal.
Administrative Law – Topic 9102
Boards and tribunals – Judicial review – Standard of review – [See first
Aliens – Topic 1334
].
Aliens – Topic 1326.1
Admission – Refugee protection, Convention refugees and persons in need of protection – Refugee Protection Division and Refugee Appeal Division – Determination by – The Federal Court of Appeal held that the Refugee Appeal Division (RAD) had to apply the correctness standard of review to the Refugee Protection Division’s (RPD) findings of fact, or mixed fact and law, which involved no issue of credibility – Section 111(2)(b) of the Immigration and Refugee Protection Act provided that the RAD was to refer a matter to the RPD for redetermination if it was of the opinion that the RPD’s decision was “wrong in law, in fact or in mixed law and fact” – The word “wrong” definitively pointed to the standard of correctness – There was no indication in the wording of the Act, read in the context of the legislative scheme and its objectives, that supported the application of the standard of reasonableness or palpable and overriding error – The role of the RAD was to intervene when the RPD was wrong in law, in fact or in fact and law – When the legislative evolution and history was considered, it was apparent that the RAD was essentially viewed as the safety net that would catch all mistakes made by the RPD – See paragraphs 53 to 102.
Aliens – Topic 1326.1
Admission – Refugee protection, Convention refugees and persons in need of protection – Refugee Protection Division and Refugee Appeal Division – Determination by – The Federal Court of Appeal identified the process to be followed by the Refugee Appeal Division (RAD) on an appeal from a decision of the Refugee Protection Division (RPD) – “… [T]he RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination.” – See paragraph 103.
Aliens – Topic 1334
Admission – Refugee protection, Convention refugees and persons in need of protection – Appeals or judicial review – Scope of review – The Refugee Protection Division (RPD) dismissed the applicants’ claim for refugee protection – The Refugee Appeal Division (RAD), in reviewing the RPD’s decision on the standard of reasonableness, dismissed the applicants’ appeal – The application judge, applying the correctness standard of review, allowed the applicants’ application for judicial review, finding that the RAD erred in reviewing the RPD’s decision on the standard of reasonableness – The Federal Court of Appeal held that the application judge erred in applying the correctness standard of review to the RAD’s decision – A question of law involving the interpretation of an administrative body’s home statute so as to determine its appellate role did not have any precedential value outside of the specific administrative regime in question – Defining the scope of its appellate function or its standard of review was within the RAD’s expertise – The issue before the application judge was not a true question of jurisdiction – A question of general importance to the refugee law system did not fall under any of the other exceptions to the reasonableness standard – See paragraphs 30 to 35.
Aliens – Topic 1334
Admission – Refugee protection, Convention refugees and persons in need of protection – Appeals or judicial review – Scope of review – [See first
Aliens – Topic 1326.1
].
Aliens – Topic 4062
Practice – Judicial review and appeals – Powers of review of appellate court (incl. standard of review) – The applicants applied for judicial review of the dismissal of their claim for refugee protection – The application judge allowed the application and certified the following question under s. 74(d) of the Immigration and Refugee Protection Act: “What is the scope of the Refugee Appeal Division’s review when considering an appeal of a decision of the Refugee Protection Division?” – The Minister of Citizenship and Immigration appealed – At issue was the standard of review to be applied by the court in respect of the certified question – An intervener argued that the court should give the correct answer to certified questions – The Federal Court of Appeal disagreed – Following the Supreme Court of Canada’s decision in Kanthasamy (2015), a certified question did not fall within the exceptions to the application of the reasonableness standard, even though it might well be of general importance to the refugee law system – If Parliament wished to continue the system that was in place before Kanthasamy, it would have to amend the Act and clarify its intention that certified questions be reviewed on a correctness standard – See paragraphs 26 to 29.
Aliens – Topic 4069
Practice – Judicial review and appeals – Certification of question of general importance by Federal Court – [See
Aliens – Topic 4062
].
Words and Phrases
Wrong
– The Federal Court of Appeal discussed the meaning of the word “wrong” as used in s. 111(2)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 – See paragraphs 63 to 66.
Cases Noticed:
Newton v. Criminal Trial Lawyers’ Association (Alta.) et al. (2010), 493 A.R. 89; 502 W.A.C. 89; 2010 ABCA 399, consd. [para. 10].
New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 10].
Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 12].
Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 16].
Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 16].
Halifax (Regional Municipality) v. United Gulf Developments Ltd. et al. (2009), 280 N.S.R.(2d) 350; 891 A.P.R. 350; 2009 NSCA 78, refd to. [para. 19].
Alberta Teachers’ Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 19].
Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al., [2013] 2 S.C.R. 559; 446 N.R. 65; 2013 SCC 36, refd to. [para. 26].
Kanthasamy v. Canada (Minister of Citizenship and Immigration), [2015] 1 F.C.R. 335; 459 N.R. 367; 2014 FCA 113, revd. (2015), 479 N.R. 103; 391 D.L.R.(4th) 644; 2015 SCC 61, folld. [para. 27].
McLean v. British Columbia Securities Commission, [2013] 3 S.C.R. 895; 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 30].
Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [para. 30].
Canadian National Railway Co. v. Canada (Attorney General) et al., [2014] 2 S.C.R. 135; 458 N.R. 150; 2014 SCC 40, refd to. [para. 30].
Alvarez et al. v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 296; 2014 FC 702, refd to. [para. 31].
Yetna v. Canada (Minister of Citizenship and Immigration) (2014), 463 F.T.R. 128; 2014 FC 858, refd to. [para. 31].
Spasoja v. Canada (Minister of Citizenship and Immigration) (2014), 464 F.T.R. 160; 2014 FC 913, refd to. [para. 31].
Bahta et al. v. Canada (Minister of Citizenship and Immigration) (2014), 471 F.T.R. 122; 2014 FC 1245, refd to. [para. 31].
Sow v. Canada (Minister of Citizenship and Immigration) (2015), 472 F.T.R. 303; 252 A.C.W.S.(3d) 316; 2015 FC 295, refd to. [para. 31].
Bellingy v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. TBEd. NO.017; 260 A.C.W.S.(3d) 566; 2015 FC 1252, refd to. [para. 31].
Canada (Canadian Human Rights Commission) v. Canada (Attorney General) – see Canada (Attorney General) v. Mowat.
Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 32].
Djossou v. Canada (Minister of Citizenship and Immigration) (2014), 467 F.T.R. 289; 2014 FC 1080, agreed with [para. 33].
Akuffo v. Canada (Minister of Citizenship and Immigration) (2014), 467 F.T.R. 94; 2014 FC 1063, agreed with [para. 33].
Tran v. Canada (Minister of Public Safety and Emergency Preparedness) (2015), 478 N.R. 165; 392 D.L.R.(4th) 351; 2015 FCA 237, refd to. [para. 41].
British Columbia Society for the Prevention of Cruelty to Animals v. Farm Industry Review Board (B.C.), [2013] B.C.T.C. Uned. 2331; 2013 BCSC 2331, refd to. [para. 45].
Cartier v. Canada (Procureur général), [2003] 2 F.C.R. 317; 300 N.R. 362; 2002 FCA 384, refd to. [para. 50].
Singh (Parminder) v. Canada (Minister of Citizenship and Immigration) (2016), 482 N.R. 149; 2016 FCA 96, refd to. [para. 56].
Statutes Noticed:
Immigration and Refugee Protection Act. S.C. 2001, c. 27, sect. 111 [para. 25].
Counsel:
Tamrat Gebeyehu, Nina Chandy and Amy King, for the appellant;
Cheryl Robinson, for the respondents;
Audrey Macklin and Anthony Navaneelan, for the intervenors.
Solicitors of Record:
William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the appellant;
Chantal Desloges Professional Corporation, Toronto, Ontario, for the respondents;
Audrey Macklin, LL.M., LL.B., Prof. of Law and Chair in Human Rights Law, Faculty of Law, University of Toronto, Toronto, Ontario, and Mamann, Sandaluk and Kingwell LLP, Toronto, Ontario, for the intervenors.
This appeal was heard at Toronto, Ontario, on September 29, 2015, before Gauthier, Webb and Near, JJ.A., of the Federal Court of Appeal. Gauthier, J.A., delivered the following judgment for the court at Ottawa, Ontario, on March 29, 2016.
