Citizenship and Immigration Committee on Dec. 5th, 2006

[Micheline Aucoin]

Actually, when the IRB had two-member panels, there were a very limited number of split decisions. Most decisions were unanimous. In fact, it was less than 1% of the decisions that were split decisions. So there were very few split decisions.

Also, when we went from two-member panels to one-member panels, we certainly did not see, let's say, a sudden increase in refusal rates at the IRB.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

Or any impact with respect to the numbers of applications to the Federal Court of Appeal for leave to appeal or actually appeal?

[Micheline Aucoin]

No.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

It would seem from what you're saying that an additional minimum of five months would be added to the general processing of refugees if RAD were implemented, and of course obviously it could be significantly more with the attendant costs. RAD would be an additional layer of review, in addition to what presently exists. Would that be a fair way to describe it?

[Micheline Aucoin]

Correct, yes.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

If we were to say that there is, as I understand it, pre-removal risk assessment that could occur, there could be an appeal to the Federal Court for leave to appeal, an actual hearing or review of the case itself, and then we could make a humanitarian and compassionate grounds application. In respect to the humanitarian and compassionate grounds application, is that limited, a one-time application in a refugee situation, or can it be any number of applications and any number of times?

[Micheline Aucoin]

No, it can be any number of applications, any number of times. The refugee claim you can make only once, but with respect to PRA, with respect to H and C applications, you can make as many as you want, yes.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

So we have part of the issue that there are a number of processes that can maybe be made a number of times and just the question of length of time that a determination takes to get made may involve intents and purposes and other grounds for say humanitarian and compassionate reasons to have the applicant succeed. Would that be fair?

[Micheline Aucoin]

Yes.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

So if we added another five months or one year to the system, that in itself may increase the grounds for applications for humanitarian and compassionate reasons. Is that correct?

[Micheline Aucoin]

Yes, it could.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

So it's a piecemeal approach to process.

Let me ask you this. Are you able to determine any significant differences between the grounds of appeal in the Federal Court as compared to the grounds of appeal that are suggested in the Refugee Appeal Division? Have you looked at the differences between the two?

[Micheline Aucoin]

Yes, I can respond to that generally. If you want to get more technical, maybe Luke Morton should take that question.

In fact, do you want to take it, Luke?

[The Chair, Conservative, Norman Doyle]

Mr. Morton, feel free to answer the question.

[Luke Morton, Senior Counsel, Legal Services, Department of Citizenship and Immigration]

Good morning. My name is Luke Morton, and I am senior counsel with legal services for CIC.

It's important, as a starting point, to always look at the statute, because some appeals are what are called appeals de novo and they're set up like that in the statute, whereas section 110(1) of IRPA sets out the three grounds for review; they are question of law, mixed fact and law, and fact. To compare that to the Federal Courts Act, section 18.1(4), these are the grounds for judicial review and it sets out six grounds, including erroneous finding of fact.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

Just to carry on in that vein and light, the provision that RAD is talking about terms of appeal does not provide for de novo evidence, or the calling or hearing of further witnesses, or providing additional information. It's basically an appeal on what's already there in the case. Is that correct?

[Luke Morton]

That's correct. Under section 110(3), it spells out that the RAD proceeds without a hearing on the basis of the record of the proceedings. It's not an appeal de novo.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

When the Federal Court is making its determination of the six factors that you list, which may be somewhat different from the RAD, they also look at the paper evidence or what was already heard and not new evidence.

[Luke Morton]

That's correct. Initially, there is a lead provision, which is a very low test. It's the test in a case called Bains v. Canada in the Federal Court of Appeal, which is set out as the test for an arguable case. So the applicant seeking judicial review has to make an arguable case, and then that goes to judicial review. To get an indication of a much higher test, in IRPA section 73, I believe it is, it sets out the grounds to take a case to the Federal Court of Appeal . A much higher test is there where the judge must certify a serious question of general importance. So the lead test is quite low. It's an arguable case to get it to judicial review in the Federal Court.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

Is the Federal Court able to send a case back for re-hearing by an IRB member in the same way that the Refugee Appeal Division would be able to send a case back for re-hearing by the tryer of fact, the IRB?

[Luke Morton]

Absolutely. The Federal Court does that every day. They send it back for a redetermination.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

When you look at those two issues, it seems like you'd now have two separate systems working side by side, at what would appear to be considerable cost, doing similar kinds of things and just providing another avenue, another layer, to a system that already is somewhat difficult to manage. Is that correct?

[The Chair, Conservative, Norman Doyle]

We're now at 7:20, so give a brief response, please.

[Luke Morton]

Mr. Chair, I'd prefer not to comment on that. I believe that it's more in the domain of the minister.

[The Chair, Conservative, Norman Doyle]

Thank you.

Thank you, Mr. Komarnicki.

We have Mr. Wilson. We're at five-minute rounds now.