Djossou v. Canada (Citizenship and Immigration)

Djossou v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2014-11-14
Neutral citation
2014 FC 1080
File numbers
IMM-7980-13
Notes
A correction was made on May 26, 2015
Reported Decision
Decision Content
Date: 20141114
Docket: IMM-7980-13
Citation: 2014 FC 1080
[ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, November 14, 2014
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
MONIA PATRICIA DJOSSOU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
[1] The applicant is challenging the legality of a decision of the Refugee Appeal Division [RAD] of the Immigration and Refugee Board [IRB] upholding a previous decision by the Refugee Protection Division [RPD] finding that the applicant was neither a “Convention refugee” nor a “person in need of protection” within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA or Act].
[2] The applicant is a citizen of Benin who had claimed refugee protection following the persecution she purports to have suffered in Togo after the death of her Togolese husband. Her in-laws want to force her into a polygamous marriage with her brother-in-law; this is in addition to a rape and harassment she was subject to in that country. The applicant does not want to seek refuge in Benin, because she claims her family would force her to return to live with her brother-in-law, given that her father had already received payment for the dowry from her in-laws.
[3] The RPD refused the refugee protection claim based on issues of credibility and because it determined the applicant’s conduct to be inconsistent with that of a person who alleges a fear of being persecuted in their country. In her appeal before the RAD, the applicant contended that the RPD erred in fact and in law: (1) in its assessment of the applicant’s credibility, by failing to take into account all of the evidence in the record; (2) in the manner in which if justified its negative determination, as insufficient reasons were provided for the decision.
[4] The applicant asked the RAD to hold an oral hearing, but her request was denied by Member Bissonnette, who found that no new admissible evidence, meeting the requirements of subsection 110(4) of the Act, had been presented to the RAD. In this case, the applicant’s appeal was dismissed on the basis of the evidence in the record because the RPD’s decision “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”, while the RPD’s reasons for dismissing the claim “were sufficiently justified, transparent and intelligible”, hence this application for judicial review.
Systemic approach [5] Neither the interpretation of the RAD’s authority to admit new evidence nor the Member’s refusal to hold an oral hearing are at issue here (for an interesting study of the matter, I would recommend reading the judgment issued by Justice Gagné in Singh v Canada (Minister of Citizenship and Immigration), 2014 FC 1022 [Singh]). Thus, the only issue in this matter is determining whether the RAD committed a reviewable error in applying, to the RPD’s findings of fact or of mixed fact and law, the standard of “reasonableness” used by courts sitting in judicial review (Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]). One may, in this regard, speak of a systemic approach on the part of the RAD.
[6] Indeed, this is not the first time the legality of decisions founded on the same legal reasoning as that employed by this and other members of the RAD has been examined on judicial review by judges of this Court. I refer you to the judgments below:
1. Iyamuremye v Canada (Citizenship and Immigration), 2014 FC 494 [Iyamuremye] (Justice Shore), setting aside a decision dated July 25, 2013, by Member Bissonnette (Docket IMM-5282-13);
2. Triastcin v Canada (Citizenship and Immigration), 2014 FC 975 [Triastcin] (Justice Shore), setting aside a decision dated August 26, 2013, by Member Bissonnette (Docket IMM-5981-13);
3. Akuffo v Canada (Citizenship and Immigration), 2014 FC 1063 [Akuffo] (Justice Gagné), upholding a decision dated September 18, 2013, by Member Gallagher (Docket IMM-6640-13);
4. Alvarez v Canada (Citizenship and Immigration), 2014 FC 702 [Alvarez] (Justice Shore), setting aside a decision dated October 18, 2013, by Member Bissonnette (Docket IMM‑7218-13);
5. Eng v Canada (Citizenship and Immigration), 2014 FC 711 [Eng] (Justice Shore), setting aside a decision dated October 22, 2013, by Member Bissonnette (Docket IMM‑7281-13);
6. Njeukam v Canada (Citizenship and Immigration), 2014 FC 859 [Njeukam] (Justice Locke), upholding a decision dated October 22, 2013, by Member Bissonnette (Docket IMM-7280-13);
7. Yetna v Canada (Citizenship and Immigration), 2014 FC 858 [Yetna] (Justice Locke), setting aside a decision dated November 5, 2013, by Member Leduc (Docket IMM‑7567‑13);
8. Spasoja v Canada (Citizenship and Immigration), 2014 FC 913 [Spasoja] (Justice Roy), setting aside a decision dated November 8, 2013, Member Bissonnette (Docket IMM‑7630-13);
9. Huruglica v Canada (Citizenship and Immigration), 2014 FC 799 [Huruglica] (Justice Phelan), setting aside a decision dated September 5, 2013, by Member Bosveld (IMM‑6362-13);
10. Diarra v Canada (Citizenship and Immigration), 2014 FC 1009 [Diarra] (Justice Beaudry), setting aside a decision dated January 23, 2014, by Member Leduc (Docket IMM-1217-14);
11. Guardado v Canada (Citizenship and Immigration), 2014 FC 953 [Guardado] (Justice Martineau), setting aside a decision dated 24, 2014, by Member Bissonnette (Docket IMM-882-14);
12. Alyafi v Canada (Citizenship and Immigration), 2014 FC 952 [Alyafi] (Justice Martineau), setting aside a decision dated January 30, 2014, by Member Gallagher (Docket IMM-1091-14).
[7] As can be seen from a review of the reasons provided by the Court in the various matters noted above, a number of colleagues and I are of the unanimous view that the RAD is committing a reviewable error when it adopts a reasonableness standard of review, even if there are varying opinions as to the nature or scope of an appeal before the RAD. All of these RAD decisions share the same common characteristic; they were all issued between July 24, 2013, and January 30, 2014, some four months before this Court was first asked to examine the legality of a RAD decision in which this same reasoning was applied (Iyamuremye, above, dated May 26, 2014). In all but two instances in which it was determined that the results were reasonable despite faulty reasoning by the Member (Njeukam and Akuffo, above), the Court decided to set aside the RAD’s decision and return the appeal to the RAD for redetermination.
General position of the parties [8] Unsurprisingly, the applicant is arguing that the decision dated November 7, 2013, by Member Bissonnette should meet the same fate as the other RAD decisions set aside by the Court. In the present case, correctness is the applicable standard of review. Indeed, sections 110 and 111 of the IRPA make to reference to any standard of review or to any concept of deference whatsoever. If the decision of the RPD is wrong in law, in fact or in mixed law and fact, the RAD may set it aside and substitute the determination that should have been made. Parliament in fact intended to create a “full appeal” before the RAD. In this case, it was not enough for Member Bissonnette to simply examine the reasonableness of the RPD decision to reject the claim and inquire only whether it fell “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir, above at para 47). In particular, to determine whether the RPD had erred in its assessment of the applicant’s credibility—by disregarding explanations or documents produced— the RAD would necessarily have to reassess the evidence as a whole and reach its own conclusions as to the merits of the claim.
[9] Reprising arguments that so far have yet to be accepted by this Court, the respondent reiterates that, on the contrary, Member Bissonnette committed no reviewable error by not reassessing all of the evidence in the record and by applying a standard of review of reasonableness; that a reasonableness standard should be applied to the review of the decision by the RAD. At any rate, the applicant’s proposition that the RAD must proceed with an “independent review of the evidence” and which is supported by a certain amount of the case law of this Court is not consistent in law and disregards the scheme of the new statutory provisions. The wording of section 110 of the IRPA requires a refugee protection claimant to identify any error of fact, of law or of mixed law and fact, made by the RPD at first instance. There is no mention of having a trial de novo or of reassessing all of the evidence in the record. Lastly, the respondent adds that even if the standard of review to be applied to the RPD’s findings of fact or of mixed fact and law was that of palpable and overriding error, as certain colleagues of this Court assert, the end result should be the same, which would justify the dismissal of this application for judicial review.
[10] At the hearing, in response to the Court’s questions regarding the case law, the applicant’s learned counsel argued that if the Court would not decide, the issue of the scope of the appeal before the RAD on a correctness standard, it could at least include, in its reasons for judgment, some clarification with regard to the scope of sections 110 and 111 of the IRPA. The Court’s opinion could be of great assistance to the parties and to the panel when the issue comes up again for redetermination, given that the statements in the case law with respect to the applicable standard can be obscure and contradictory at times. In particular, counsel for the applicant questioned the scope of the test proposed by Justice Phelan in Huruglica, above, according to which “the RAD is required to conduct a hybrid appeal”; on the one hand, the Court indicates that the RAD “must review all aspects of the RPD’s decision and come to an independent assessment” (at para 54) while on the other, the Court states that the RAD “can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion” (at para 55). These statements appear to be contradictory. The applicant’s counsel further opined that the automatic application of the palpable and overriding error standard, which is what Justices Shore and Roy appear to favour (Alvares, Eng and Spasoja, above) is likely to lead to serious problems of application and create injustices in the future because one cannot compare the RAD to a traditional court of appeal that hears thousands of different cases.
[11] At first glance, both parties agree that it its current wording the standard of palpable and overriding error set out by the Supreme Court in Housen v Nikolaisen, 2002 SCC 33 [Housen] and HL v Canada (Attorney General), 2005 SCC 25 [HL] seems more demanding than the reasonableness standard set out in Dunsmuir, above. It should be recalled that in the latter case the Supreme Court decided to meld the two previous standards (reasonableness simpliciter and patent unreasonableness) into a single standard of review. If a greater degree of deference (patent and overriding error) poses no problem for the respondent, it makes no practical sense for the applicant. The applicant points out that under the new scheme thousands of refugee claimants rejected by the RPD are now denied an opportunity to have a pre-removal risk assessment [PRRA]. And cases that are appealed before the RAD are already restricted to certain countries in which peoples’ lives are often at stake. For the applicant, these latter factors make a strong case for the RAD adopting a standard of review for RPD decisions that affords precious little room for deference, and one that is certainly less deferential than the reasonableness standard, no matter which qualifiers are used (reasonableness or palpable and overriding error).
[12] For the reasons that follow, this application for judicial review should be allowed.
Standard of review [13] Let us begin this analysis by determining which standard of review this Court, as a superior court sitting in judicial review of any decision made under the IRPA (sections 3, 18 and 18.1 of the Federal Courts Act, RSC 1985, c F-7; section 72 of the IRPA), must apply to various determinations of the RAD (Dunsmuir at paras 27 et seq.). Any deference the RAD may or may not give to the RPD raises a question of law. There are two competing standards: correctness and reasonableness.
[14] It is well known in legal circles that the application of a correctness standard by a court on judicial review to a question of law determined by an administrative tribunal is more stringent than applying a standard of reasonableness. Indeed, “[u]nlike a review for correctness, there will often be no single right answer to the questions that are under review against the standard of reasonableness” (Law Society of New Brunswick v Ryan, 2003 SCC 20 at para 51). In contrast, on a correctness standard there can only be one right answer. It goes without saying that in certain cases this could be determinative of the outcome of an application for judicial review (as was the case, for example, in Singh, above at para 65; see also King v Canada (Attorney General), 2012 FC 488 at paras 94, 144-145 [King], affirmed by 2013 FCA 131).
[15] But why speak of deference?
[16] It is because, as a general rule, the more deferential standard of reasonableness will usually apply where a decision maker is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity (Dunsmuir, above at paras 54 and 55; Smith v Alliance Pipeline Ltd, 2011 SCC 7, [2011] 1 SCR 160 at para 28; Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 SCR 654 at para 30 [Alberta Teachers’ Association]; Canadian Artists’ Representation v National Gallery of Canada, 2014 SCC 42 at para 13). As the Supreme Court of Canada aptly summarizes in Canadian National Railway Co v Canada (Attorney General), 2014 SCC 40 at para 55 [Canadian National Railway Co.]:
In such cases, there is a presumption of deferential review, unless the question at issue falls into one of the categories to which the correctness standard applies: constitutional questions, questions of law that are of central importance to the legal system as a whole and that are outside of the adjudicator’s expertise, questions regarding the jurisdictional lines between two or more competing specialized tribunals, and the exceptional category of true questions of jurisdiction (Dunsmuir, at paras. 58-61, and Alberta Teachers’ Association, at para. 30, citing Canada (Canadian Human Rights Commission), at para. 18, and Dunsmuir, at paras. 58-61).
[17] In Dunsmuir, above, the Supreme Court notes that when a full analysis of the applicable standard of review must be carried out, the analysis must be contextual, and it must take into consideration the factors relevant to the determination of the applicable standard (at para 64):
As mentioned above, it is dependent on the application of a number of relevant factors, including: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue, and; (4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of the factors, as some of them may be determinative in the application of the reasonableness standard in a specific case.
[18] One must begin by asking whether the level of deference to be accorded to a particular type of question has been “established satisfactorily” in the case law (Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras 48-49). Despite the fact that some of my colleagues have heretofore opted for a correctness standard (Iyamuremye, above at para 20; Alvarez, above at para 17; Eng, above at para 18; Huruglica, above at paras 25-34; Yetna, above at para 14; Spasoja, above at paras 7 to 9), there is nothing approaching unanimity on the issue (contra, Akuffo, above at paras 16 to 26). I myself am of the view, although I may be mistaken, that a reasonableness standard applies to this review of the legality of the decision in question.
[19] In the first place, it is by no means evident to me that the issue here falls under one of the categories of questions that are subject to a correctness standard (Dunsmuir, above at paras 58-61; Canadian National Railway Co., above at para 55). To begin with, in this case, no constitutional question has been raised by the parties. In addition, I would doubt that any veritable “question of jurisdiction” in its narrow sense is at play here, which is the case “where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter” (Dunsmuir, above at para 59). It should be recalled that the Supreme Court of Canada warned that federal courts “should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so” (Dunsmuir, above at para 35, citing Canadian Union of Public Employees, Local 963 v New Brunswick Liquor Corp.,, [1979] 2 SCR 227 at p. 233).
[20] According to subsections 110(1) and (2) of the IRPA, an appeal before the RAD involves “a question of law, of fact or mixed law and fact” raised by the refugee claimant or by the Minister in his or her notice of appeal. In this case, the parties agree that the RAD was properly seized with the applicant’s appeal. The RAD has the express power to overturn any RPD decision that is “wrong in law, in fact, or in mixed law and fact” (paragraph 111(2)(a) of the IRPA). The scope of the appeal is therefore not in issue. Nor is it a matter of interpreting the scope of the exclusions set out in subsection 110(2)—which restrict the RAD’s capacity to hear certain types of appeal. Rather, the issue is to determine whether the member committed a reviewable error in choosing to apply a reasonableness standard when considering questions of fact or of mixed law and fact raised by the applicant in her notice of appeal (Dunsmuir, above), and did so on the basis of a questionable interpretation or application of the judgment issued by the Alberta Court of Appeal in Newton v Criminal Trial Lawyers’ Association, 2010 ABCA 399, 493 AR 89 [Newton].
[21] Indeed, for Member Bissonnette, only a pure question of law or a breach of natural justice are reviewable on a correctness standard on appeal before the RAD (impugned decision at para 38). Otherwise, the appellant has the onus of demonstrating to the RAD the “unreasonableness” of the RPD’s findings of fact or of mixed law and fact that she is challenging (impugned decision at paras 39 to 41). But can one consider the issue of “standards of review” before the RAD as being a “question of jurisdiction”, in the broad sense, because it would be incidental to the delineation of the “respective jurisdictions” of the RAD and the RPD?
[22] At least this is what my colleague, Justice Roy, suggests in Spasoja (above at para 8). With respect, I am not convinced that we need to go down that road. Indeed, unlike an adjudicator or a human rights tribunal—which can both be seized with, at first instance, an issue related to employment discrimination—the RPD and the RAD do not have competing jurisdiction in determining refugee status—other than where the RAD, on appeal, decides to set aside the decision of the RPD and substitute the decision that should have been made, without referring the matter back to the RPD, as is permitted under section 111 of the IRPA.
[23] Questions of statutory interpretation are indubitably questions of law (Canadian National Railway Co., above at para 33). Such is therefore the case where the RAD is interpreting its enabling statute, in this case the IRPA. In practice, deference is largely an incidental issue to the RAD’s perception of its appellate role. In the absence of an explicit statutory provision, one might say it is a question of “judicial or institutional policy”—for lack of a better description. It must be noted here that neither section 110 nor section 111 of the IRPA make any specific reference to the “degree of deference” the RAD may or may not afford to a finding of fact, of law, or of mixed law and fact made by the RPD. In passing, the concept of deference that we associate with “standards of review” should not be confused with the particular grounds for appeal or for review of an appealable or reviewable decision (Alyafi, above at paras 14-15). Therefore, if it is not a true question of jurisdiction, does the issue fall under another category to which a correctness standard applies?
[24] Up to this point, the Supreme Court has given a very narrow reading of the last exception, that of a question of law of central importance. In fact it was on the basis of this narrow reading that my colleague, Justice Gagné, recently concluded that a standard of reasonableness should be applied when determining which standard the RAD must apply when reviewing findings of fact made by the RPD (Akuffo, above at paras 17-26). Justice Gagné noted that a correctness standard would apply solely to questions of law that were both of central importance to the legal system as a whole and outside the expertise of the administrative tribunal (at para 20). Citing Alberta Teachers’ Association, above, Justice Gagné indicated that a question of general importance is one whose resolution has repercussions outside the statutory scheme under consideration (Akuffo, above at para 21). Moreover, since its decision in Alberta Teachers, above, the Supreme Court has not encountered any situation that would fall under this exception to the reasonableness standard (Akuffo, above at para 21), since questions whose resolution would have no precedential value outside of a specific context are not questions of central importance to the legal system as a whole.
[25] In Nor-Man Regional Health Authority Inc v Manitoba Association of Health Care Professionals, 2011 SCC 59 [Nor-Man] and Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd., 2013 SCC 34 [Irving], the Court reaffirmed that arbitration decisions issued under collective agreements were subject to a reasonableness standard, even if the arbitrator applied the equitable doctrine of estoppel (Nor-Man, above at para 38) and even if the conflict was of interest to the public (Irving, above at para 66). In Irving, Justices Rothstein and Moldaver, for the minority (dissenting on another issue), pointed out that even if the dispute was of wider importance to the public, the applicable standard was reasonableness because the application of collective agreements is part of labour arbitrators’ expertise and that “[t]his dispute has little legal consequence outside the sphere of labour law and that, not its potential real-world consequences, determines the applicable standard of review” (at para 66). The Supreme Court arrived at a similar conclusion in Canadian National Railway Co., above, in which it pointed out the issue as to whether certain parties could avail themselves of the complaint mechanism under the Transportation Act, SC 1996, c 10, was not a true question of jurisdiction or a question of central importance because the question at issue does not have any precedential value outside of its statutory regime (at paras 60-62).
[26] In McLean v British Columbia (Securities Commission), 2013 SCC 67, the Supreme Court reaffirmed the presumption that a reasonableness standard should be applied to an administrative decision maker’s interpretation of its home statute (at para 21). Justice Moldaver, on behalf of the majority, noted that an administrative decision maker’s interpretation of a limitation period contained in its enabling statute did not automatically attract a standard of correctness:
First, although I agree that limitation periods, as a conceptual matter, are generally of central importance to the fair administration of justice, it does not follow that the Commission’s interpretation of this limitation period must be reviewed for its correctness. (at para 28)
[27] The Supreme Court also refuted the appellant’s argument that limitation periods were not part of the substantial securities regulation in which the Commission had a specialized expertise (at para 30). According to the Court:
. . . [T]he resolution of unclear language in an administrative decision maker’s home statute is usually best left to the decision maker. That is so because the choice between multiple reasonable interpretations will often involve policy considerations that we presume the legislature desired the administrative decision maker — not the courts — to make. Indeed, the exercise of that interpretative discretion is part of an administrative decision maker’s “expertise”. (at para 33)
[28] This conclusion is similar to that found in Canada (Human Rights Commission) v Canada (Attorney General), 2011 SCC 53 [Canada (Human Rights Commission)], wherein the Supreme Court indicated that the standard of reasonableness applied to the Canadian Human Rights Commission’s decision that it could award costs under its enabling statute because this was a question of law that was within the core expertise of the Tribunal in the interpretation and application of its enabling statute (at para 25). The Court further stated:
In addition, a decision as to whether a particular tribunal will grant a particular type of compensation — in this case, legal costs — can hardly be said to be a question of central importance for the Canadian legal system and outside the specialized expertise of the adjudicator. Compensation is frequently awarded in various circumstances and under many schemes. It cannot be said that a decision on whether to grant legal costs as an element of that compensation and about their amount would subvert the legal system, even if a reviewing court found it to be in error. (at para 25)
[29] The jurisprudence of the Supreme Court shows that where a response to a question has no precedential value outside of a particular statutory scheme, it is not a question of central importance to the legal system as a whole. These decisions also demonstrate that a broad interpretation must be given to an administrative tribunal’s expertise in applying its enabling statute or a statute closely connected to its functions, in particular, that a tribunal’s expertise is not limited to substantive provisions, but extends to procedural provisions.
[30] With respect, I am not as convinced as my colleague, Justice Phelan, that “[t]he selection of the appropriate standard of review is a legal question well beyond the scope of the RAD’s expertise, even though it depends on the interpretation of the IRPA, the RAD’s home statute” (Huruglica, above at para 30). At first glance, given the experience of its members and institutional expertise, the RAD is very well placed to determine whether the new statutory provisions create a “true appeal”, an “appeal de novo”, or another type of administrative appeal. Moreover, the RAD’s need for expert members was one of the reasons cited by M.P. Nina Grewal to explain why the government was not in favour of establishing the RAD in 2007:
It should also be noted that in order to implement the RAD, the IRB itself has said that the skill set of members of the RAD would need to be different from other IRB members. The IRB stated that the selection would have to reflect the tasks of an appellate decision-maker, require a stronger legal and analytical capacity, and some prior adjudicative experience. (House of Commons Debates, 39th Parliament, 1st Session, No. 122 (March 2, 2007) at pp. 1330 et seq.))
[31] Furthermore, comments by Peter Showler, Chairperson of the IRB at the time, before the Standing Committee on Citizenship and Immigration during its 2001 review of Bill C-11, which went on to become the IRPA, show that the purpose for creating the RAD was not to simply add an intermediate stage between the RPD’s determination of a refugee claim and judicial review by the Federal Court:
It is expected that the RAD will produce two different but complementary results. By reviewing individual RPD decisions on the merits, the RAD can efficiently remedy errors made by the RPD. That, if you will, is the safety net for the RPD. However, in addition the divisions will ensure consistency in refugee decision-making by developing coherent national jurisprudence in refugee law issues. As I said to this committee before, we don't see that as a benefit simply in that it will improve the quality of our decision-making. If there is more coherent, consistent jurisprudence, we think RPD decision-makers can actually make their decisions more quickly as well. (Standing Committee on Citizenship and Immigration, Evidence, 37th Parliament, 1st Session, meeting No. 5 (March 20, 2001) at pp. 0915-20, 0945; Emphasis added.)
[32] In addition, the IRPA sets out the following at subsection 162(1):
162. (1) Each Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction.
162. (1) Chacune des sections a compétence exclusive pour connaître des questions de droit et de fait — y compris en matière de compétence — dans le cadre des affaires dont elle est saisie.
[33] It is therefore apparent that RAD has jurisdiction over any question of law that is presented to it, including the standard of review it should apply. The RAD’s specialization, and the expertise of its members, as demonstrated by its function of standardization of law and the precedential value of decisions of three members pursuant to paragraph 171(c) of the IRPA, indicates that the Federal Court must defer to the RAD. Further, although there are differences in the manner in which the Immigration Appeal Division [IAD] and the RAD hear or decide appeals that may be before them, their respective decisions are protected by the same privative clause (section 162 of the IRPA); the members of both divisions have considerable expertise in determining appeals under the IRPA; and both divisions have the authority to render the decision that should have been rendered by the original decision maker. Or, in the case of the IAD, the Supreme Court decided that, taken together, those factors clearly point to the application of a reasonableness standard of review to decisions issued under section 67 of the IRPA (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339 at para 58 [Khosa]). Why would it be otherwise for RAD decisions issued under section 111 of the IRPA?
[34] Accordingly, unless one is convinced that “[s]etting the standard of review [applicable to a specialized appellate tribunal’s review of a lower administrative tribunal’s decision] is a legitimate aspect of the superior court’s supervisory role” (Newton, above at para 39, cited in Huruglica, above at para 27), and that one considers, moreover, that it is a question of law “of central importance for the legal system as a whole”, the Court should now avoid unilaterally proclaiming which standards of deference are to be applied to RPD decisions in an appeal before the RAD.
[35] Nevertheless, the Court in Huruglica, above, did certify the following question of law: “What is the scope of the Refugee Appeal Division’s review when considering an appeal of a decision of the Refugee Protection Division?” The respondent has since filed a notice of appeal with the Federal Court of Appeal [A-470-14].
[36] A Federal Court judge does not have the luxury of being wrong about the applicable standard of review for RAD decisions. At this stage, one cannot therefore assume that the Federal Court of Appeal—if it agrees to answer a question as general as that of the Court—will answer the question certified by Justice Phelan by reviewing the RAD’s decision on a correctness standard. For example, in B010 v Canada (Citizenship and Immigration), 2013 FCA 87, the Federal Court of Appeal applied a reasonableness standard to the Immigration Division’s interpretation of paragraph 37(1)(b) of the IRPA and responded to the certified question by stating that “it is reasonable to define inadmissibility under paragraph 37(1)(b) by relying upon subsection 117(1) of the Immigration and Refugee Protection Act …”. If the Federal Court of Appeal finds, in Huruglica, that a reasonableness standard applies instead, it could rephrase the question certified by Justice Phelan in such a manner so as to ask whether the option selected by the RAD (the reasonableness approach borrowed from Dunsmuir, above) was an acceptable outcome in respect of sections 110 and 111 of the IRPA. Moreover, it could also choose to respond instead to the questions that were certified by Justice Gagné (Akuffo, above at para 53), in the event an applicant whose claim for refugee protection has been rejected were to appeal a negative Federal Court judgment to the Federal Court of Appeal.
[37] Hence, this is why it seemed to me to be more prudent, in this case, as long as the issue has not been finally resolved on appeal, to adopt a pragmatic approach. Also, for the very reasons that were put forth in Alyafi, above, I do not think there is any need, at this particular moment, for me to make any sort of final ruling on the interpretation of sections 110 and 111 of the IRPA to determine this application for judicial review. For the time being, there appear to be a number of possible approaches, but what is clear, however, is that the option chosen by the RAD (a judicial review-based approach) is not an acceptable outcome in law. Even applying the lesser standard of reasonableness, I still arrive at the same end result as my colleagues who applied the more stringent correctness standard. Intervention is warranted in this case. In this way, the choice of appropriate standard of review will not be determinative of the matter (which might not have been the case had I adopted a correctness standard or had I dismissed the applicant’s application by applying a standard of reasonableness).
An appeal is not a judicial review [38] First, it is important to remember that the reasonableness standard should not be seen as a plenary dispensation for decisions of expert decision-makers. Even if an interpretation of the law made by a specialized tribunal has to be reviewed on a reasonableness standard, it remains that the interpretation of the law is always contextual. The law does not operate in a vacuum and the tribunal is always required to take into account the legal context in which it is called to apply the law (see King, above at para 60; Dunsmuir, above at para 74).
[39] The fundamental problem in this case is that the legal reasoning by Member Bissonnette (see paragraphs 30 to 31 of the decision under review), appears to me to be unreasonable on its face because the RAD cannot, in practice, conduct itself in an appeal as a judicial court sitting in judicial review (Alyafi, above at paras 10-18 and 53; Spasoja, above at paras 3, 9, 11 and 47; Huruglica, above at paras 39-54). Otherwise, the creation of a specialized appeal tribunal for refugee determination would serve no purpose (Alyafi, above para 12).
[40] In the present case, subsections 110(1) and 111(1) and (2) of the IRPA state:
110. (1) Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person’s claim for refugee protection.
110. (1) Sous réserve des paragraphes (1.1) et (2), la personne en cause et le ministre peuvent, conformément aux règles de la Commission, porter en appel — relativement à une question de droit, de fait ou mixte — auprès de la Section d’appel des réfugiés la décision de la Section de la protection des réfugiés accordant ou rejetant la demande d’asile.
[…]
[…]
111. (1) After considering the appeal, the Refugee Appeal Division shall make one of the following decisions:
(a) confirm the determination of the Refugee Protection Division;
(b) set aside the determination and substitute a determination that, in its opinion, should have been made; or
(c) refer the matter to the Refugee Protection Division for re-determination, giving the directions to the Refugee Protection Division that it considers appropriate.
111. (1) La Section d’appel des réfugiés confirme la décision attaquée, casse la décision et y substitue la décision qui aurait dû être rendue ou renvoie, conformément à ses instructions, l’affaire à la Section de la protection des réfugiés.
[…]
[…]
(2) The Refugee Appeal Division may make the referral described in paragraph (1)(c) only if it is of the opinion that
(2) Elle ne peut procéder au renvoi que si elle estime, à la fois :
(a) the decision of the Refugee Protection Division is wrong in law, in fact or in mixed law and fact; and
a) que la décision attaquée de la Section de la protection des réfugiés est erronée en droit, en fait ou en droit et en fait;
(b) it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the Refugee Protection Division.
b) qu’elle ne peut confirmer la décision attaquée ou casser la décision et y substituer la décision qui aurait dû être rendue sans tenir une nouvelle audience en vue du réexamen des éléments de preuve qui ont été présentés à la Section de la protection des réfugiés.
[41] It is clear from reading the aforementioned provisions that the RAD can set aside the RPD’s decision and substitute the decision that, in its opinion, should have been made, which means that the RAD has much broader powers on appeal that those of a traditional court of law sitting in judicial review. Not only that, the RAD may, among other things, admit new evidence and decide to hold an oral hearing in specific circumstances set out by Parliament (subsections 110(3) to (6) of the IRPA). Further, the RAD exercises exclusive jurisdiction on appeal that is at least equal to that of the RPD at first instance (subsection 162(1) of the IRPA) and can itself render the decision that ought to have been rendered by the RPD (section 111 of the IRPA). Such is not the case with the Federal Court, whose jurisdiction is limited by sections 72 to 75 of the IRPA, as well as by sections 18 and 18.1 of the Federal Courts Act. In addition, the remedies available to the Federal Court are limited in principle to setting aside the decision and remitting the matter for redetermination, which is not the case with the RAD vis-à-vis the RPD.
[42] Reasonableness is a well-known standard in judicial review, which follows a different line of reasoning than that of an appeal (Alyafi, above at paras 17 and 18). A reviewing court applying this standard must ask itself whether the decision under review and its justification possess the “attributes” of reasonableness. In practice, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir, above at para 47). But why would an appellate body adopt such an app