On September 4, 2019, the Federal Court issued its decision in Canadian Association of Refugee Lawyers v. Canada (Citizenship and Immigration), 2019 FC 1126. This case involved a challenge to the Chairperson's authority to issue jurisprudential guides (JGs) on issues of fact. While the legal challenge centred on four JGs, concerning Nigeria, India, Pakistan and China, the Federal Court also addressed issues with broader implications for the use of this policy instrument by the Immigration and Refugee Board of Canada (IRB) in the future.
In its decision, the Court upheld the IRB's authority and approach in the following areas:
- The legislation allows the Chairperson to issue JGs not only on issues of law and mixed fact and law, but also on issues of fact.
- The IRB employed an appropriate process for identifying the four JGs.
With respect to the specific JGs challenged by CARL, the Court supported the IRB's implementation of the JG on Nigeria. However, with respect to the three other JGs, of which only the one on Pakistan remains in force, the Court found that the accompanying policy notes impermissibly fettered the discretion of members to make their own factual determinations because the policy notes state that members are “expected to apply" the JGs in similar cases or explain why they did not. As a result, the Court declared this statement to be inoperative as framed in the three policy notes. This declaration has no impact on the JGs themselves, which remain in force (except for the two that had previously been revoked by the IRB).
The IRB takes its obligations seriously with respect to the adjudicative independence of its members. Therefore, it has already communicated the implications of this decision to Refugee Protection Division and Refugee Appeal Division members to ensure that they begin to implement the Court's direction immediately.