Federal Court reins in Immigration and Refugee Board

The Federal Court has limited the power of the Immigration and Refugee Board of Canada’s (IRB) chairperson to issue jurisprudential guides (JGs) on issues of fact, where the JGs create an “expectation” that board members were bound to follow the directives.

Although Chief Justice Paul Crampton’s decision in Canadian Association of Refugee Lawyers v. Canada (Minster of Citizenship and Immigration) 2019 FC 1126does recognize the chair’s authority to issue jurisprudential guides that include factual determinations, without the need for consultations with external shareholders, the judgment reinforces the principle that JGs may not fetter the discretion of IRB members to make their own factual findings or improperly encroach upon their adjudicative independence.

“As far as factual determinations are concerned, the principle that ‘s/he who hears must decide’ is sacrosanct,” Crampton wrote. “It is a fundamental pillar of the rule of law. It cannot be sacrificed on the altar of achieving greater consistency and efficiency in administrative decision-making.”

The right of board members exercising their adjudicative function without improper influence, Crampton added, “… can include establishing an expectation that Board members will adopt factual conclusions set forth in a jurisprudential guide (JG) issued by the Chairperson of the Board unless they explain why such conclusions have not been followed”.

As Crampton saw it, the imposition of such an expectation was to be distinguished from simply requiring or encouraging decision makers to take account of  “… particular objectively reported facts, legal principles, or factors to consider in deciding issues of law or mixed fact and law….” The latter would not fetter discretion, encroach on adjudicative independence or reduce perceived impartiality as long as it made clear that board members were free to reach their own conclusions.

“Important factors to consider in assessing whether a JG is likely to improperly influence members of the Board include the nature of the language establishing the expectation, whether it is made clear that each case must be adjudicated on the basis of its specific facts, the extent of monitoring of compliance, and whether a reasonable apprehension arises that adverse consequences would likely result if the JG were not followed,” Crampton wrote.

At issue in the proceedings brought by the Canadian Association of Refugee Lawyers (CARL) were four JGs pertaining to the assessment of refugee claims from nationals of Nigeria, Pakistan, China and India. The JGs were enacted under para 159(1)(h) of the Immigration and Refugee Protection Act, which authorizes the chair to identify board decisions as JGs “…to assist members in carrying out their duties.”

As Crampton saw it, the Nigerian JG was valid because it repeatedly referred to the need for each case to be adjudicated on the basis of its particular facts.

“It bears underscoring that I do not consider a JG which deals with factual issues to be problematic, in and of itself. This is so even where . . . the JG in question deals almost exclusively with factual issues,” Crampton wrote. “The problem is posed by the statement of expectation that the JG should be applied in cases with similar facts unless reasoned justifications are provided.”

The key difference between the Nigerian JG and the other three was that the latter included policy notes stating that board members “are expected to apply Jurisprudential Guides in cases with similar facts or provide reasoned justifications for not doing so.” Similar statements were made in the board’s Policy on the Use of Jurisprudential Guides and in e-mails sent from the chair to board members.

As it turned out, the Pakistan, China and India decisions that underlay the JGs included findings, characterized by the Refugee Appeal Division (RAD) as its own findings, relating “to matters that go beyond the evidence that was very specific to the claimant or claimants in question and therefore may well arise in other cases”.

In light of the expectations established, board members in future cases with facts similar to those referenced in the JGs “would not feel completely free to decide the case according to his or her own conscience”.

Here, Crampton was careful to point out that facts addressed in the JGs that were “specific to the particular claimant and that were adduced in his or her evidence” and those “characterized as having been reported in the country documentation or Response to Information Requests” did not attract adjudicative independence issues.

“The only unlawful fettering of discretion or improper interference with Board members’ adjudicative independence is with respect to the third category [facts presented as the RAD’s own findings, on issues that go beyond the evidence that was specific to the claimants],” Crampton wrote.

Ultimately, the Chief Justice felt the issues were important enough to certify them for consideration by the Federal Court of Appeal.

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