In November 2020, the Federal Court of Appeal (FCA) released Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 (CanLII), (CARL FCA Decision) which considered the ability of the Immigration and Refugee Board to use “soft law” to support efficiency in its decision-making. The FCA specifically determined that the adjudicative guidance provided in four Jurisprudential Guides did not fetter the independence of adjudicators and overturned part of the decision of the Federal Court. In January 2021, the Canadian Association of Refugee Lawyers initiated an application for leave to appeal at the Supreme Court of Canada.
In Canadian Association of Refugee Lawyers (CARL) v. Canada (Minister of Citizenship and Immigration), 2019 FC 1126, the Federal Court granted, in part, two judicial review applications that challenged the decision of the Chairperson of the Immigration and Refugee Board of Canada (IRB) to designate four decisions of the Refugee Appeal Division as Jurisprudential Guides (JG). Part of the IRB’s rationale for issuing the JGs was to create efficiency and address significant backlogs and growing intake volumes. All of the policy notes accompanying the JGs explained that members of the Refugee Protection Division and the Refugee Appeal Division were expected to apply the JGs in cases with similar facts or alternatively, provide reasoned justifications for not applying the JGs.
The Federal Court found that the JGs had been validly enacted under section 159(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). However, the Federal Court found that the JGs pertaining to Pakistan, India and China were unlawful as they fettered the discretion of IRB members and improperly interfered with their independence. The fourth JG pertaining to Nigeria was upheld.
The Canadian Association of Refugee Lawyers (CARL) appealed the Federal Court’s decision, arguing that the Chairperson did not have the authority to issue the JGs and that the Nigeria JG was also unlawful. The Minister of Citizenship and Immigration (MCI) cross-appealed the determination that the Pakistan, India and China JGs improperly interfered with adjudicative independence.
At the time the FCA heard the appeal, three of the four JGs pertaining to China, India and Nigeria had been revoked due to developments in the country of origin information.
The Federal Court of Appeal (FCA) upheld the determination that the Chairperson of the IRB had the authority to issue the JGs. However, the FCA found that the Federal Court had erred in finding that the JGs related to Pakistan, India and China were unlawful. Therefore, the FCA dismissed CARL’s appeal and granted MCI’s cross-appeal.