In the present case, both levels of the Immigration Refugee Division (IRB) found that an Internal Flight Alternative (IFA) was available. So, the claim was rejected.
The Applicants applied for leave and judicial review (JR) with the Federal Court. Among other things, they raised procedural fairness arguments – inadequate counsel representation at both IRB levels.
In response, the Minister’s counsel argued that the Applicants were statutorily barred from seeking JR on the above ground. They had not exhausted their right to reopen their RAD appeal under rule 49 of the Refugee Appeal Division Rules, SOR/2012-257 (Rules). According to the Minister's counsel, the words ‘any right of appeal’ in section 72(2)(a) of the Immigration and Refugee Protection Act, SC 2001, c. 27 (IRPA) included the right to reopen. Therefore, not all appeals had been exhausted before resorting to the Federal Court.
The Applicants, faced with the above argument, applied in parallel at RAD to reopen their case based on Rule 49. Afterwards, the Federal court granted leave. After leave was granted, the RAD rejected the request to reopen. The Applicants did not submit a second JR from the RAD reconsideration decision; instead, they decided to limit counsel's inadequate representation argument to the already filed JR.