Canadian Refugee Procedure/107 - Decision on Claim for Refugee Protection

IRPA Section 107: Decision on Claim for Refugee Protection

Section 107 of the Immigration and Refugee Protection Act reads:

Decision on Claim for Refugee Protection

Decision
107 (1) The Refugee Protection Division shall accept a claim for refugee protection if it determines that the claimant is a Convention refugee or person in need of protection, and shall otherwise reject the claim.

Section 107(1): The Division shall accept a claim for refugee protection if it determines that the claimant is a Convention refugee or a person in need of protection

Section 107(1) of the IRPA states that the Division shall accept a claim for refugee protection if it determines that the claimant is a Convention refugee or person in need of protection. This language creates a right for those who meet the criteria to be so recognized. This tracks the language of the 1985 Rabbi Plaut report that led to the founding of the Immigration and Refugee Board, which noted that "declaring a claimant to be a refugee is not a privilege we grant, but rather a right we acknowledge." This was not always the conception of refugee protection embodied in Canadian legislation - prior to 1976, the refugee had no rights under Canadian law since the relief granted by the Immigration Appeal Board was discretionary in nature. See also: Canadian Refugee Procedure/The Board's inquisitorial mandate#Refugee Status Determination is declaratory, not constitutive.

IRPA Section 107(2): No Credible Basis

No credible basis
(2) If the Refugee Protection Division is of the opinion, in rejecting a claim, that there was no credible or trustworthy evidence on which it could have made a favourable decision, it shall state in its reasons for the decision that there is no credible basis for the claim.

Making a No Credible Basis determination is mandatory where warranted

Subsection 107(2) of the IRPA has two dimensions—the presence of evidence that is credible or trustworthy and capable of forming the basis of a favourable RPD decision for a refugee protection claim. When a claimant provides no evidence that meets these two dimensions, the RPD must make a no credible basis finding for the claim.

A finding that a claim has no credible basis affects appeal rights to the RAD

A finding that a claimant has no credible basis prevents a claimant from appealing a decision to the RAD. However, if the no credible basis finding is made in the alternative to an exclusion finding, then the appeal right will remain: Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division#110(2)(d): No appeal may be made against a decision of the Refugee Protection Division rejecting a claim for refugee protection that states that the claim has no credible basis or is manifestly unfounded.

A panel may not reach a no credible basis finding where it determines that a claimant is excluded, except by way of an alternative analysis

A no credible basis declaration is not a free-standing ruling; it is only relevant to an inclusion claim, not to the exclusion of a claimant from the refugee regime. As the Federal Court held in Singh v. Canada, such a finding can only be made as an addendum to a rejected inclusion claim for refugee protection. In that decision, the court goes on to state: "An NCB ruling therefore, has no relevance to the exclusion ruling, and at best is only pending in the contingent outcome of the exclusion order being set aside sometime in the future."

The jurisdiction of the Refugee Appeal Division with respect to no credible basis findings is unclear, but the question is moot because of the current wording of the regulation

If the RPD states that there was no credible basis for a claim, this prevents the claimant from appealing a decision to the RAD: Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division#IRPA Section 110(2): Restrictions on appeals. However, the Act’s restriction on appeals does not state that the RAD is prohibited from considering No Credible Basis (NCB) and Manifestly Unfounded Claim (MUC) findings altogether, only that no appeal may be made in respect of a decision of the Refugee Protection Division rejecting a claim for refugee protection that states that the claim has no credible basis or is manifestly unfounded. What happens where the RPD does not declare that a claim has no credible basis, and the matter is appealed to the RAD, is arguably unclear. From time to time the Minister has requested that the RAD find that the RPD erred by not declaring a claim to have NCB or be MUC. Whether the RAD has jurisdiction to assess whether the RPD erred in not making such a statement has been contested.

The likely reason why this statutory interpretation question has been left unresolved is that, because of the current provisions in the Immigration and Refugee Protection Regulation, this is a moot question and a RAD determination that the RPD erred by not making an NCB or MUC finding would be a nullity. The effect of an NCB or MUC finding at the RPD is that the claimant may not appeal to the RAD and they do not have an automatic stay of proceedings at the Federal Court. However, if a matter is appealed to the RAD, then any removal order is stayed if the subject of the order makes an application for leave for judicial review: Canadian Refugee Procedure/IRPR ss. 230-234 - Stay of Removal Orders#IRPR s. 231: Stay of removal — judicial review. This automatic stay applies even if the RAD were to conclude that the RPD should have made a statement that the claim is MUC or NCB, and even if the RAD substituted such a statement in its reasons. As such, any statement by the RAD that the RPD erred by not declaring a claim NCB or MUC, even if it has such jurisdiction, would arguably either be obiter or a nullity.

That said, looking to the RAD's jurisdiction, there is an argument that the RAD has jurisdiction to review the correctness of an RPD panel's failure to make a MUC or NCB finding. The RAD could choose to engage in such an assessment, if it chose.

As a starting point, and as a general rule, the RAD is to act as "the safety net [to] catch all mistakes made by the RPD". When a matter is appealed to it, “the RAD reviews the RPD’s decisions for correctness” and “no deference is shown to the original decision maker”. Instead, the RAD “conducts its own analysis of the question” and “must determine whether it agrees with the answer given by the decision maker; if not, it will substitute its own view and provide the correct answer”. Therefore, the RAD “is ultimately empowered to come to its own conclusions on the question”. Importantly “this can entail reweighing the evidence that was before the RPD". "The RAD is not required to defer to the RPD’s findings, including factual ones”. Consistent with this mandate, some decisions of the RAD have concluded that the Division is empowered to make the decision that the RPD ought to have made, and they have substituted a determination that there is no credible basis for the claim before them, even where the RPD did not so find, if they determine that such a statement was warranted.

Other decisions have approached this issue differently. They have looked at the text of section 107(2) of the IRPA and concluded that the authority to state that a claim for refugee protection has NCB is conferred only on the Refugee Protection Division and, as there are no other IRPA provisions that specifically confer a similar authority on the Refugee Appeal Division, the RAD does not have the statutory authority to state that an appellant's claim is manifestly unfounded. Yet other RAD decisions have raised the matter of whether an NCB or MUC finding should have been made only as obiter, without actively making such a determination part of the RAD reasons.

It is true that the legislation clearly gives jurisdiction for No Credible Basis (and Manifestly Unfounded Claim) findings to the RPD. However, even if the RAD does not have the power pursuant to s. 107(2) of the IRPA to make such declarations anew, this does not necessarily mean that it lacks the power to review an RPD member's failure to make such a statement for correctness. Under this approach, the RAD may assess whether the RPD correctly made the statement in its reasons that s. 107(2) requires. If the Refugee Protection Division clearly was of the opinion that there was no credible or trustworthy evidence before it, but it did not make the declaration required of it, it would have erred. Similarly, if the RPD should have been of that opinion based on the record before it, but did not make the necessary assessment and statement, it also would have erred. This approach is similar to how the RAD and courts have considered the question of whether the RPD should have given notice under RPD Rule 26 on exclusion, which provides that "If the Division believes, before a hearing begins, that there is a possibility that section E or F of Article 1 of the Refugee Convention applies to the claim, the Division must without delay notify the Minister in writing". In that context, the RAD and the court have looked at factors like whether it was evident that the Member subjectively believed that there was a possibility of exclusion and whether there was evidence on the record that should have alerted the panel to the issue: Canadian Refugee Procedure/RPD Rules 26-28 - Exclusion, Integrity Issues, Inadmissibility and Ineligibility#When will there be a "possibility" of exclusion?

This approach is also consistent with the RAD's broader jurisdiction to intervene where the RAD adjudges the RPD's reasons to have been insufficient, including when the RPD has not adequately justified why it does or does not believe something that the statute tasks it with making a decision about. The RAD generally has jurisdiction to review all of the RPD's reasons for correctness where a matter may properly be appealed to the RAD. See: Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division#110(2)(c): No appeal may be made against a decision of the Refugee Protection Division rejecting a claim for refugee protection that states that the claim has no credible basis or is manifestly unfounded.

Allowing the RAD to step in despite the specific reference to the Refugee Protection Division in s.107(2) is also arguably consistent with the scheme of the Act. Many provisions in the IRPA, Regulation, and the Rules refer specifically to the RPD, but are ones where the RAD routinely steps into the shoes of the RPD on appeal. For example, the section of the IRPA immediately before this one, s. 106, provides that "The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity". It is uncontroversial that the fact that this provision refers explicitly to the RPD does not preclude the RAD from intervening in such matters, and overturning the RPD if appropriate. In Woldemichael v. Canada the Federal Court specifically rejected an argument that the language of section 106 of the IRPA requires that identity determinations only be made by the RPD and that they cannot be reviewed by the RAD.

One may also consider the legislative history of s. 111(1.1) of the IRPA. This provision was previously titled "Manifestly unfounded" and stated "(1.1) For greater certainty, if the Refugee Appeal Division does not set it aside, the Refugee Protection Division’s determination under section 107.1 is confirmed." While this provision was then repealed in 2012, it appears to indicate that Parliament has contemplated the RAD's power to consider determinations that a claim was manifestly unfounded: Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division#History of this provision 2.

All this said, even if it were accepted that the RAD may evaluate the correctness of an RPD failure to declare a claim NCB or MUC, the RAD should arguably be reticent to engage in an analysis of a moot question, as doing so may be seen to run contrary to the mandate in the statute that the Division proceed as quickly and informally as the circumstances permit: Canadian Refugee Procedure/162 - Board Jurisdiction and Procedure#IRPA Section 162(2) - Obligation to proceed informally and quickly.

Where a claimant is self-represented, the panel should ensure that they understand what a no credible basis finding means during the hearing

The ordinary rule is that expressed by the Federal Court of Appeal to the effect that the Refugee Division is not required to give the claimant any special notice before it finds that there was "no credible basis" for the claim. However, in Olifant v. Canada, the court noted that the RPD has a positive duty to ensure that a self-represented applicant understands both the nature of the proceedings and the salient aspects of the hearing to be conducted. The court concluded that the RPD had not fulfilled this obligation:

Given the seriousness of all of the circumstances, taken together, it was unfair for the RPD to not take at least some positive steps to ensure he understood what it meant if his claim was found to have no credible basis. A careful reading of the transcript reveals that the Board did not take any positive measures to introduce the seriousness of what was to occur or explain the Minister’s Counsel would question him. Though the Board did ask if he had any questions about the process and determinative issues, it is in my view still the case that this was insufficient to ensure he understood the nature of the hearing and its salient aspects given he was an unsophisticated Applicant representing himself. Indeed, both the fact that Minister’s Delegate was present and would be participating in the manner they did (turning the matter into a far more adversarial one and rightly so on these facts), the no credible basis aspect and the implications thereof, are not things that the Applicant ought necessarily to have known. It would not take much for the RPD to ensure that he understood this – a simple check-in of “do you understand what these specific aspects of the hearing mean” or informing him of them at the outset of the hearing would suffice – but the failure to do so was, in my view, procedurally unfair.

For more information on the Board's obligations with respect to self-represented claimants, see: Canadian Refugee Procedure/Counsel of Record#The Board has a heightened duty of procedural fairness when dealing with self-represented claimants.

IRPA Section 107.1: Manifestly unfounded claims

Manifestly unfounded
107.1 If the Refugee Protection Division rejects a claim for refugee protection, it must state in its reasons for the decision that the claim is manifestly unfounded if it is of the opinion that the claim is clearly fraudulent.

History of this provision

Provision in the legislation for differently processing manifestly founded claims have been in the Act since the 1976 Immigration Act. At that point, the guidelines used by the Refugee Status Advisory Committee created four categories of manifestly unfounded claims: 1) claims that presented no evidence of any of the five essential criteria of the definition; 2) claims where the evidence presented was so manifestly unreliable "that no reasonable person could believe it"; 3) claims made under Section 45 of the Act when the claimant had already submitted an in-status claim and the second claim presented no new information; and 4) claims made by the spouse of a rejected claimant when the claim was based solely on the rejected spouse's claim.