Judgments

[1995] 1 F.C. 741

IMM-7460-93

Sellakandu Sivasamboo and Dilaka Sivasamboo (Applicants)

v.

The Minister of Citizenship and Immigration (Respondent)

Indexed as: Sivasamboo v. Canada (Minister of Citizenship and Immigration) (T.D.)

Trial Division, Richard J.—Toronto, September 29; Ottawa, November 30, 1994.

Citizenship and Immigration — Judicial review — CRDD finding applicants not Convention refugees — Standard of review of CRDD decisions under Federal Court Act, s. 18.1(4)(c),(d) — Privative clause not determinative — Specialized tribunals to be accorded significant deference when acting within own jurisdiction, special expertise — Deference applicable to questions of law and fact — Standard of review to be applied patent unreasonableness.

This was an application for judicial review of a decision of the Convention Refugee Determination Division finding the applicants not to be Convention refugees. The applicants are Tamil females from Sri Lanka. With the onset of civil strife in the northern part of that country and because they suffered persecution by both the Sri Lankan army and a terrorist group, they fled the North and tried to settle at Colombo. Shortly after their arrival, they were arrested, detained in a police station for more than six hours and released without conditions. They remained in Colombo for several months and, although they had no further encounters with the police, they decided to leave the country and come to Canada. The Refugee Division found that while the applicants had a well-founded fear of persecution in the Jaffna area, they had an internal flight alternative (IFA) in Colombo. It concluded that there was no basis for them to fear persecution in the Colombo area and that they were not Convention refugees. The main issue was the standard of review applicable to the grounds set out in paragraphs 18.1(4)(c),(d) of the Federal Court Act with respect to errors of law and errors of fact.

Held, the application should be dismissed.

Even though the terms of subsection 18.1(4) of the Federal Court Act are broad in scope, specialized tribunals should be accorded “significant" deference when they are acting squarely within their area of expertise. The pragmatic and functional approach to determining the extent of deference to be accorded to an administrative tribunal requires a consideration of the legislation conferring jurisdiction, the aim of the statute creating the tribunal, the reasons for the tribunal’s existence and the area of expertise of its members. The presence of a privative clause is not determinative. Although subsection 67(1) of the Immigration Act, which grants the Refugee Division “sole and exclusive jurisdiction to hear and determine all questions of law and fact” relating to claims to Convention refugee status, is not a privative clause per se, the decisions of the Refugee Division may be considered final and binding because of the exclusive grant of jurisdiction, the limited opportunities for judicial review, and the specialized nature of the tribunal. The nature of the inquiry and the process involved in Convention refugee determinations is such that the Refugee Division must be highly specialized and sensitized to the applicant’s claims. Further, the factual and regulatory context in which its decisions are made is highly complex. The principle of deference applies not only to the facts as found by the Refugee Division, but also to the legal questions before it. With respect to the findings and conclusions of fact of a specialized tribunal, a supervisory court will intervene only when it has been shown that there is a manifest or palpable error, that is that they are patently unreasonable. Since the Refugee Division is a specialized tribunal to which the Court should accord considerable deference, when reviewing its findings on questions of law and questions of fact, the standard of judicial review to be applied is patent unreasonableness.

The factual determination of whether circumstances had changed in Colombo was a question squarely within the particular expertise of the Refugee Division. The legal determination of whether a reasonable IFA was available at Colombo was another question squarely within the expertise of the tribunal. The Refugee Division’s determination as to the availability of an IFA was not unreasonable, let alone “patently unreasonable” or “clearly irrational.”

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].

Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5).

Federal Court Immigration Rules, 1993, SOR/93-22, R. 18.

Immigration Act, R.S.C., 1985, c. I-2, ss. 61 (as am. by S.C. 1992, c. 49, s. 50), 64 (as am. idem, s. 54), 65 (as am. idem, s. 55), 67 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18), 68 (as am. idem), 69.1 (as enacted idem; S.C. 1992, c. 49, s. 60), 82.1 (as enacted by R.S.C., 1985 (4th Suppl.), c. 28, s. 19; S.C. 1992, c. 49, s. 73), 82.2 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19; S.C. 1992, c. 49, s. 73), 83(1) (as am. by S.C. 1992, c. 49, s. 73).

CASES JUDICIALLY CONSIDERED

APPLIED:

Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614; (1991), 80 D.L.R. (4th) 520; 48 Admin. L.R. 161; 91 CLLC 14,017; 123 N.R. 161; Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; (1993), 101 D.L.R. (4th) 673; 150 N.R. 161; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; [1994] 7 W.W.R. 1; (1994), 92 B.C.L.R. (2d) 145; 4 C.C.L.S. 117; Dayco (Canada) Ltd. v. CAW-Canada, [1993] 2 S.C.R. 230; (1993), 102 D.L.R. (4th) 609; 14 Admin. L.R. (2d) 1; 93 CLLC 14,032; 152 N.R. 1; 63 O.A.C. 1; United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; (1993), 102 D.L.R. (4th) 402; 153 N.R. 81; Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.); Husyn v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1218 (C.A.) (QL); Canada (Minister of Employment and Immigration) v. Letshou-Olembo, [1990] 3 F.C. 45 (1990), 73 D.L.R. (4th) 560; 11 Imm. L.R. (2d) 225; 113 N.R. 136 (C.A.); Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227; (1979), 25 N.B.R. (2d) 237; 97 D.L.R. (3d) 417; 51 A.P.R. 237; 79 CLLC 14,209; 26 N.R. 341; Blanchard v. Control Data Canada Ltd. et al., [1984] 2 S.C.R. 476; (1984), 14 D.L.R. (4th) 289; 14 Admin. L.R. 133; 84 CLLC 14,070; 55 N.R. 194; Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644; (1990), 88 Nfld. & P.E.I.R. 15; 48 Admin. L.R. 1; 91 CLLC 14,002; 123 N.R. 241.

DISTINGUISHED:

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; (1993), 100 D.L.R. (4th) 658; 46 C.C.E.L. 1; 17 C.H.R.R. D/349; 93 CLLC 17,006; 149 N.R.1.

REFERRED TO:

National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; (1990), 74 D.L.R. (4th) 449; 45 Admin. L.R. 161; 114 N.R. 81; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; (1988), 35 Admin. L.R. 153; 95 N.R. 161; Caimaw v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983; (1989), 62 D.L.R. (4th) 437; [1989] 6 W.W.R. 673; 40 B.C.L.R. (2d) 1; 40 Admin. L.R. 181; 89 CLLC 14,050; Bell Canada v. Canada (Canadian Radio-television and Telecommunications Commission), [1989] 1 S.C.R. 1722; (1989), 60 D.L.R. (4th) 682; 38 Admin. L.R. 1; 97 N.R. 15; Douglas Aircraft Co. of Canada Ltd. v. McConnell et al., [1980] 1 S.C.R. 245; (1979), 99 D.L.R. (3d) 385; 79 CLLC 14,221; 29 N.R. 109; New Brunswick (Egg Marketing Board) v. Canadian Egg Marketing Agency (1992), 94 D.L.R. (4th) 687; 55 F.T.R. 161 (F.C.T.D.); Apotex Inc. v. Canada (Attorney General) (1993), 59 F.T.R. 85 (F.C.T.D.); Canada (Minister of Citizenship and Immigration) v. Liyanagamage, [1994] F.C.J. No. 1637 (C.A.) (QL); Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321; (1992), 9 O.R. (3d) 224; 93 D.L.R. (4th) 346; 138 N.R. 1; 55 O.A.C. 81; Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351; (1992), 90 D.L.R. (4th) 27; 10 C.C.L.T. (2d) 101; 133 N.R. 116; Laurentide Motels Ltd. v. Beauport (City), [1989] 1 S.C.R. 705; 23 Q.A.C. 1; (1989), 45 M.P.L.R. 1; 94 N.R. 1; Canada (Minister of Employment and Immigration) v. Szymanska, [1992] F.C.J. No. 1172 (C.A.) (QL); Rezaei v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 40 (C.A.) (QL); Diarra v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1410 (T.D.) (QL); Hossain v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1194 (T.D.) (QL); Franco v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1011 (C.A.) (QL); Yuen v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1043 (C.A.) (QL); Liu v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1043 (C.A.) (QL); Ahmed v. Canada (Solicitor General), [1994] F.C.J. No. 1270 (T.D.) (QL); Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (1991), 140 N.R. 138 (C.A.); Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (1993), 109 D.L.R. (4th) 682; 22 Imm. L.R. (2d) 241 (C.A.).

AUTHORS CITED

Canada. Law Reform Commission. The Determination of Refugee Status in Canada: A Review of the Procedure (Draft Final Report), Ottawa, 1992.

Hathaway, James. Rebuilding Trust: Report of the Review of Fundamental Justice in Information Gathering and Dissemination at the Immigration and Refugee Board of Canada. Ottawa, December 1993.

APPLICATION for judicial review of a decision of the Convention Refugee Determination Division finding the applicants not to be Convention refugees. Application dismissed.

COUNSEL:

William A. Sullivan for applicants.

Charles D. Johnston for respondent.

SOLICITORS:

Davis, Sullivan, Toronto, for applicants.

Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment rendered in English by

Richard J.: This is an application, made pursuant to subsection 82.1(1) of the Immigration Act,[1] for judicial review pursuant to subsection 18.1(1) of the Federal Court Act[2] of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (Refugee Division), dated December 8, 1993, wherein the Refugee Division determined the applicants not to be Convention refugees.

The facts, as set out in the reasons for decision of the Refugee Division and the transcript of the hearing, are as follows:

1) The applicants are Tamil females who are mother and daughter: Sellakandu Sivasamboo, age 64, and Dilaka Sivasamboo, age 29. They both claim Convention refugee status based on a well-founded fear of persecution due to their race, religion, political opinion and membership in a particular social group.[3]

2) The applicants testified that with the onset of civil strife in the northern part of Sri Lanka, they suffered persecution from army officers at a Sri Lankan Armed Forces (SLAF) camp which was located nearby in their home village of Kankesanthurai. In June 1986, SLAF soldiers robbed the family. In 1987, an air attack on their village forced them to move in with an aunt in Aleveddy, as their own house had been destroyed.[4]

3) The applicants fled the North because of an increasing pattern of extortion at the hands of the Liberation Tigers of Tamil Eelam (LTTE). These demands began in December 1990, when the LTTE demanded that Dilaka Sivasamboo join their cause. In March 1991, she was forced to go with the LTTE to a camp, until her release was secured by the payment of a bribe. Following a further demand by the LTTE for payment of 25,000 rupees, the applicants left Jaffna in December 1991, travelling with a relative in a small group which made its way through the bush to avoid both LTTE and SLAF checkpoints. When the applicants reached Vavuniya, they journeyed by train to Colombo, where they were able to stay with a family friend named Mr. Kumaraswamy.[5]

4) Dilaka Sivasamboo testified as to the experiences that both she and her mother experienced in Colombo. She testified that Mr. Kumaraswamy was a former co-worker of her dead father and was a long time resident of Colombo. With respect to whether or not the applicants registered with the police, Dilaka Sivasamboo testified that Mr. Kumaraswamy said that whether or not they registered, they would probably be arrested. Because they believed that this outcome was inevitable, they did not register.[6]

5) The applicants were arrested on or about January 15, 1992, when the police came to Mr. Kumaraswamy’s house. They were brought to the Wellawatta police station where they were asked questions for more than six hours. They were asked about their knowledge of the LTTE. Dilaka Sivasamboo testified that she was beaten during her interrogation, being hit on the back as well as on her hand. She testified that although she suffered no serious injury, she was extremely distraught by this experience. The applicants stated that they were released without any conditions, but were warned that if they were to stay in Colombo they must be supportive of the government.[7]

6) The applicants did not return to stay at Mr. Kumaraswamy’s house, but went to stay with Mr. Sellathurai, another family friend. This man lived in a mainly Muslim area and it was hoped that if the two applicants stayed in hiding that they would not encounter any difficulties. Their second host brought them into contact with an agent who arranged for their trip out of Sri Lanka. The applicants left Sri Lanka on April 10, 1992, arriving in Canada on April 25, 1992.[8]

Although the Refugee Division expressed doubts as to the likelihood of the applicants having been able to journey south from Jaffna without encountering LTTE or SLAF checkpoints, it found that any doubt that it might have was not determinative of the issue of whether their fear of persecution at the hands of the LTTE was well-founded. The Refugee Division concluded that their fear of persecution in the Jaffna area was well-founded.[9]

However, the Refugee Division also found that the applicants had an internal flight alternative (IFA) in Colombo. In determining that the applicants would not be at risk of persecution in Colombo, the Refugee Division noted that the applicants were detained for approximately six hours and were released without conditions, and that they remained in Colombo for several months during which they did not have any further encounters with the police. The Refugee Division concluded that the detention of possible terrorist suspects in Colombo was prompted by the government’s response to LTTE terrorism and was primarily intended to protect its citizens. Further, the documentary evidence was “persuasive” that the government was “displaying a growing awareness of human rights abuses” and that significant measures were being taken to discipline security forces.[10] The Refugee Division concluded that there was no basis for the applicants to fear persecution in the Colombo area, that the applicants had an IFA there, and that they were not Convention refugees:

The panel believes that it has been presented with evidence that leads it to reason that the claimants had grounds to fear persecution in the northern part of Sri Lanka, but that no such grounds exist in Colombo area.

For all the above reasons and after a careful assessment of all the evidence before it, the panel believes that an IFA was available to the claimants. In the panel’s opinion, if the claimants returned to Colombo, Sri Lanka, there is not a reasonable chance or a serious possibility that the claimants would be persecuted for any of the reasons contained in the definition of Convention refugee.

The Refugee Division, therefore, determines Sellakandu Sivasamboo and Dilaka Sivasamboo not to be Convention refugees.[11]

Counsel for the applicants raised two issues before this Court:[12]

1) Did the Board err in law in ignoring relevant evidence and misconstruing the evidence before it, so as to misapply the definition of Convention refugee, in particular in its application of a possible internal flight alternative for the applicants and ignoring evidence in support of the applicants’ fear of persecution by Sri Lankan authorities in the area in which the Board indicates there exists an internal flight alternative, being Colombo?

2) Did the Board base its decision on an erroneous finding of fact made in a capricious manner or made without regard to material before it in determining that the applicants are not Convention refugees and, in particular, emphasizing a change in country conditions that the Board believed indicated a “discernible change” to the extent that the applicants had no objective basis of fear of persecution based on their Tamil nationality in Colombo?

The statutory authority granting exclusive jurisdiction to the Trial Division in these matters is section 82.1 of the Immigration Act, which provides in part as follows:

82.1 (1) An application for judicial review under the Federal Court Act with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be commenced only with leave of a judge of the Federal Court—Trial Division.

…

(6) Subject to subsection (7), where leave to commence an application for judicial review is granted, the application for judicial review shall be deemed to have been commenced and the judge granting leave shall fix the day and place for the hearing of the application for judicial review.

…

(8) Any application for leave to commence an application for judicial review, and any application for judicial review, under this section shall be determined without delay and in a summary way.

The grounds of review in applications for judicial review to the Trial Division are set out in subsection 18.1(4) of the Federal Court Act, which provides as follows:

18.1 ….

(4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal

(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;

(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;

(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;

(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;

(e) acted, or failed to act, by reason of fraud or perjured evidence; or

(f) acted in any other way that was contrary to law.

The first question to be determined here is the standard of review applicable to the grounds set out in paragraphs 18.1(4)(c) and (d) with respect to errors of law and errors of fact.

In recent years, the Supreme Court of Canada has expressed itself frequently regarding the appropriate standard of review of an administrative tribunal’s decision. In Canada (Attorney General) v. Public Service Alliance of Canada (PSAC No. 1),[13] Mr. Justice Cory provides a useful overview of the Canadian approach to judicial review. He agrees with Madam Justice Wilson’s reasons in National Corn Growers Assn. v. Canada (Import Tribunal)[14] [(National Corn Growers) and is of the view that courts should generally approach decisions of administrative tribunals with reasonable deference, except in those situations where the tribunals’ decisions involve an interpretation of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] or constitutional rights.[15] Both he, in dissent, and the majority decision in PSAC No. 1 adopt the pragmatic and functional approach to determining the jurisdiction of an administrative tribunal that was enunciated in U.E.S., Local 298 v. Bibeault[16] (Bibeault) and Caimaw v. Paccar of Canada Ltd.[17]

In PSAC No. 2,[18] Mr. Justice Cory, in considering a decision on an application for judicial review of a decision of the Public Service Staff Relations Board pursuant to section 28 of the Federal Court Act, as it then read, summarized the role of the courts when reviewing decisions of specialized tribunals:

In summary, the courts have an important role to play in reviewing the decisions of specialized administrative tribunals. Indeed, judicial review has a constitutional foundation. See Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220. In undertaking the review courts must ensure first that the board has acted within its jurisdiction by following the rules of procedural fairness, second, that it acted within the bounds of the jurisdiction conferred upon it by its empowering statute, and third, that the decision it reached when acting within its jurisdiction was not patently unreasonable. On this last issue, courts should accord substantial deference to administrative tribunals, particularly when composed of experts operating in a sensitive area.[19] [Emphasis added.]

The most recent decision of the Supreme Court on this issue is Pezim v. British Columbia (Superintendent of Brokers),[20] wherein Mr. Justice Iacobucci, for the Court, stated that:

From the outset, it is important to set forth certain principles of judicial review. There exist various standards of review with respect to the myriad of administrative agencies that exist in our country. The central question in ascertaining the standard of review is to determine the legislative intent in conferring jurisdiction on the administrative tribunal. In answering this question, the courts have looked at various factors. Included in the analysis is an examination of the tribunal’s role or function. Also crucial is whether or not the agency’s decisions are protected by a privative clause. Finally, of fundamental importance, is whether or not the question goes to the jurisdiction of the tribunal involved.

Having regard to the large number of factors relevant in determining the applicable standard of review, the courts have developed a spectrum that ranges from the standard of reasonableness to that of correctness. Courts have also enunciated a principle of deference that applies not just to the facts as found by the tribunal, but also to the legal questions before the tribunal in the light of its role and expertise. At the reasonableness end of the spectrum, where deference is at its highest, are those cases where a tribunal protected by a true privative clause, is deciding a matter within its jurisdiction and where there is no statutory right of appeal. See Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, at p. 1089 (Bibeault), and Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756.

At the correctness end of the spectrum, where deference in terms of legal questions is at its lowest, are those cases where the issues concern the interpretation of a provision limiting the tribunal’s jurisdiction (jurisdictional error) or where there is a statutory right of appeal which allows the reviewing court to substitute its opinion for that of the tribunal and where the tribunal has no greater expertise than the court on the issue in question, as for example in the area of human rights. See for example Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, and University of British Columbia v. Berg, [1993] 2 S.C.R. 353.[21]

He also recognized that the presence of a privative clause is not determinative:

Consequently, even where there is no privative clause and where there is a statutory right of appeal, the concept of the specialization of duties requires that deference be shown to decisions of specialized tribunals on matters which fall squarely within the tribunal’s expertise. This point was reaffirmed in United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316 (Bradco), where Sopinka J., writing for the majority, stated the following at p. 335:

… the expertise of the tribunal is of the utmost importance in determining the intention of the legislator with respect to the degree of deference to be shown to a tribunal’s decision in the absence of a full privative clause. Even where the tribunal’s enabling statute provides explicitly for appellate review, as was the case in Bell Canada, supra, it has been stressed that deference should be shown by the appellate tribunal to the opinions of the specialized lower tribunal on matters squarely within its jurisdiction.

On the other side of the coin, a lack of relative expertise on the part of the tribunal vis-à-vis the particular issue before it as compared with the reviewing court is a ground for a refusal of deference.

In my view, the pragmatic or functional approach articulated in Bibeault is also helpful in determining the standard of review applicable in this case. At page 1088 of that decision, Beetz J., writing for the Court, stated the following:

… the Court examines not only the wording of the enactment conferring jurisdiction on the administrative tribunal, but the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise of its members and the nature of the problem before the tribunal.[22]

With respect to the British Columbia Securities Commission, the tribunal at issue in the case, he concluded:

In summary, having regard to the nature of the securities industry, the Commission’s specialization of duties and policy development role as well as the nature of the problem before the court, considerable deference is warranted in the present case notwithstanding the fact that there is a statutory right of appeal and there is no privative clause.[23] [Emphasis added.]

As a result, even though the terms of subsection 18.1(4) of the Federal Court Act are quite broad in scope, this Court should accord specialized tribunals “considerable” or “significant” deference when they are acting squarely within their area of expertise. This Court should only interfere with such a finding if the tribunal acted outside the scope of its mandate because its conclusions cannot be sustained on any reasonable interpretation of the facts or of the law. In essence, the reason for such a degree of deference is because administrative tribunals are usually created in the first place to encourage decisions to be made by a specialized tribunal with particular expertise in a relevant area of law.[24]

As mandated by PSAC, Bibeault, Paccar and Pezim, a pragmatic and functional approach is required to determine whether a specialized tribunal deciding a matter within its jurisdiction should be accorded “considerable” or “significant” deference. In Pezim, Mr. Justice Iacobucci indicated that even where there is no privative clause the concept of the specialization of duties requires that deference be shown to decisions of specialized tribunals on matters which fall squarely within the tribunal’s expertise.[25] He relies, in part upon the Supreme Court’s decision in Bell Canada v. Canada (Canadian Radio-television and Telecommunications Commission),[26] wherein Mr. Justice Gonthier stated that:

… within the context of a statutory appeal from an administrative tribunal, additional consideration must be given to the principle of specialization of duties. Although an appeal tribunal has the right to disagree with the lower tribunal on issues which fall within the scope of the statutory appeal, curial deference should be given to the opinion of the lower tribunal on issues which fall squarely within its area of expertise.

In Canada (Attorney General) v. Mossop, Madam Justice L’Heureux-Dubé indicated that while a privative clause is an important consideration in determining whether deference is appropriate, it is not determinative.[27] In Dayco (Canada) Ltd. v. CAW-Canada,[28] Mr. Justice La Forest expressed a similar view regarding the majority decision in National Corn Growers which he characterised as follows: “the important point is that the driving factor in that decision was not the clause alone but deference to the relative expertise of the administrative tribunal over the specialized questions involved.” Further, in United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., Mr. Justice Sopinka stated that:

… the expertise of the tribunal is of the utmost importance in determining the intention of the legislator with respect to the degree of deference to be shown to a tribunal’s decision in the absence of a full privative clause. Even where the tribunal’s enabling statute provides explicitly for appellate review, as was the case in Bell Canada, supra, it has been stressed that deference should be shown by the appellate tribunal to the opinions of the specialized lower tribunal on matters squarely within its jurisdiction.[29]

The pragmatic and functional approach to determining the extent of deference to be accorded to an administrative tribunal requires a consideration of the legislation conferring jurisdiction, the aim of the statute creating the tribunal, the reasons for the tribunal’s existence and the area of expertise of its members.

The legislative provisions which must be considered in determining the jurisdiction of the Refugee Division are set out in sections 67 [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18], 68 [as am. idem] and 69.1 [as enacted idem; S.C. 1992, c. 49, s. 60] of the Immigration Act. Some of the relevant provisions are as follows:

67. (1) The Refugee Division has, in respect of proceedings under sections 69.1 and 69.2, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction.

(2) The Refugee Division, and each member thereof, has all the powers and authority of a commissioner appointed under Part I of the Inquiries Act and, without restricting the generality of the foregoing, may, for the purposes of a hearing,

(a) issue a summons to any person requiring that person to appear at the time and place mentioned therein to testify with respect to all matters within that person’s knowledge relative to the subject-matter of the hearing and to bring and produce any document, book or paper that the person has or controls relative to that subject-matter;

(b) administer oaths and examine any person on oath;

(c) issue commissions or requests to take evidence in Canada; and

(d) do any other thing necessary to provide a full and proper hearing.

68. …

(3) The Refugee Division is not bound by any legal or technical rules of evidence and, in any proceedings before it, it may receive and base a decision on evidence adduced in the proceedings and considered credible or trustworthy in the circumstances of the case.

(4) The Refugee Division may, in any proceedings before it, take notice of any facts that may be judicially noticed and, subject to subsection (5), of any other generally recognized facts and any information or opinion that is within its specialized knowledge.

…

69.1 (1) Subject to subsection (2), where a person’s claim to be a Convention refugee is referred to the Refugee Division pursuant to section 46.02 or 46.03, the Division shall, as soon as is practicable, commence a hearing into the claim.

…

(9) The Refugee Division shall determine whether or not the person referred to in subsection (1) is a Convention refugee and shall render its decision as soon as possible after completion of the hearing and send written notice of the decision to the person and to the Minister.

Thus, it is clear the legislature has granted the Refugee Division “sole and exclusive jurisdiction to hear and determine all questions of law and fact” relating to claims to Convention refugee status. Even though this is not a privative clause per se and none appears elsewhere in the Act, the effect of subsection 67(1) is similar in that the decisions of the Refugee Division may be considered final and binding because of the exclusive grant of jurisdiction, the limited opportunities for judicial review, and the specialized nature of the tribunal.[30] In Dayco, Mr. Justice La Forest, dis- counted the importance of the difference between “final and conclusive” and “final and binding” clauses in determining whether a particular clause is privative. He refused to “accept that courts should mechanically defer to a tribunal simply because of the presence of a ‘final and binding’ or ‘final and conclusive’ clause,”[31] reminding the courts that these types of clauses are but a factor signalling deference and that they should be considered within the context of the nature of the tribunal and the type of question at issue.

Subsection 82.1(1) clearly provides that judicial review of decisions of the Refugee Division may only be commenced with leave of this Court.[32] In addition, decisions of this Division on applications for judicial review which have been granted leave may only be appealed to the Federal Court of Appeal if a judge of this Division, at the time of rendering judgment, certifies that “a serious question of general importance is involved and has stated that question”.[33] Further, this Court is limited with respect to the remedies it can provide; the Trial Division does not have the power to render the decision that the Refugee Division ought to have given, but can only quash the decision and refer the matter back to the tribunal with directions.[34]

The scope of the Refugee Division’s powers under the Immigration Act is wide: members may issue summonses to any persons and compel the production of documents; the legal and technical rules of evidence are relaxed in order to ensure a complete record upon which to make its decision; and it may take notice of any facts, information and opinion “that is within its specialized knowledge.”[35] The role of members of the Refugee Division at a hearing is characterized as inquisitorial since they not only hear the evidence which is presented before them but must also inform themselves sufficiently about the applicants and the conditions in their country of origin. In a recent report examining the Refugee Division, Prof. James Hathaway characterised the refugee determination process as follows:

Refugee status determination is among the most difficult forms of adjudication, involving as it does fact-finding in regard to foreign conditions, cross-cultural and interpreted examination of witnesses, ever-present evidentiary voids, and a duty to prognosticate potential risks rather than simply to declare the more plausible account of past events. These differences mandate more than traditional, passive adjudication, as the United Nations High Commissioner for Refugees has observed:

In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application.

Moreover, since Canada has voluntarily acceded to the Refugee Convention of 1951 and its 1967 Protocol, there is no adverse party with an interest to contest applications for refugee status. We have agreed as a nation to admit refugees, as a result of which it is incumbent upon us dispassionately to apply the relevant criteria, rather than seeking either to promote or to challenge the applications presented to us.

These evidentiary and contextual concerns make departure from traditional modes of adjudication imperative. We need expert, engaged, activist decision-makers who will pursue substantive fairness rather than technocratic justice. We must not view refugee claimants as opponents or threats, but rather as persons seeking to invoke a right derived from international law. It is the commitment to this kind of flexibility and sensitivity which led Parliament to abolish the previous court of record charged with refugee status determination, and to replace it with an expert tribunal with inquisitorial, non-adversarial jurisdiction.[36] [Footnotes omitted and emphasis added.]

This process requires expertise and specialized knowledge which are not only recognized in the Refugee Division’s authorizing legislation, but also by the Federal Court of Appeal. In Aguebor v. Minister of Employment and Immigration, Mr. Justice Décary indicated that “[t]here is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony.”[37] More recently, Chief Justice Isaac made the following comment in an application for judicial review of a decision of the Refugee Division:

The several errors sought to be attributed to the Board in reaching its conclusion that the Appellant was not a Convention Refugee were all directed to their appreciation of the evidence, matters peculiarly within their province as a specialized tribunal.[38]

The nature of the inquiry and the process involved in Convention refugee determinations is such that the Refugee Division must be highly specialized and sensitized to the applicant’s claims. Further, the factual and regulatory context in which its decisions are made is highly complex, involving an understanding and application of principles of international law to the interpretation of the Convention refugee definition, as it has been incorporated into Canadian domestic law and interpreted by our courts (an interpretation much wider than many other Western nations) and according to the guidelines established by the Chairperson of the Immigration and Refugee Board.

In order to ensure that the Refugee Division develops and maintains it expertise in the area of refugee law, Parliament has enacted specific provisions relating to the qualifications of members and the hiring of support staff. According to subsection 61(1) [as am. by S.C. 1992, c. 49, s. 50], members of the Refugee Division are appointed by the Governor in Council for terms not to exceed seven years. Subsection 61(2) [as am. idem] provides that not less than 10 percent of the members of the Refugee Division must be lawyers with at least five years of membership in the bar of a province and subsection 61(5) [as am. idem] requires that all full-time members devote the whole of their time to their duties as Refugee Division members. In addition, subsection 64(5) [as am. idem, s. 54] provides the Chairperson with specific authority to engage experts or other persons with the specialized knowledge required by the Refugee Division. Further, the work of the Refugee Division is supported by the Documentation Centre, which prepares extensive Country Information Files and responds to specific inquiries regarding the situation in a particular country or region.[39] The Law Reform Commission of Canada described the role of the Documentation Centre in the following terms:

The principal source of documentary evidence is the IRB’s Documentation Centre, and very few counsel go to outside sources for additional information. Country profiles and overviews prepared by the IRBDC are most commonly used, supplemented increasingly by specific information requests. During its first twenty-four months of operation, the IRBDC in Ottawa replied to over 8,000 separate requests, seeking information on a wide variety of topics, including the meaning of acronyms, the standing of political organizations, the practice of other States in human rights and refugee matters, the laws and penalties applied in particular countries, and the treatment of political dissidents, religious and social minorities …

According to its mandate, the IRBDC is intended to be the principal resource in Canada for the provision of credible and trustworthy evidence relevant to the processes of refugee determination. Information of a general or historical nature is complemented by holdings that cover, for example, specific groups (political, religious, ethnic), or the situation in specific areas, or the fate of particular individuals. In attempting to provide objective, reliable and cogent analysis and evaluations, the IRBDC also aims to acquire and disseminate information from the widest variety of sources in Canada and abroad; for this purpose, it maintains contact with a considerable number of human rights, refugee and other documentation centres, with the documentation operations of other countries’ refugee determination systems, and with a variety of online, commercial news and information sources. The principle of verification embodied in the work of the IRBDC has led to criticism for alleged non-disclosure of information of potential relevance, either in a positive or negative sense.[40]

The Refugee Division has an important public interest mandate and a clear policy development role with respect to the application of the Convention refugee definition in so far as subsection 65(3) [as am. idem, s. 55] authorizes the Chairperson, following consultations, to issue guidelines to assist the members in carrying out their duties under the Act. For example, in March 1993, the Chairperson of the Immigration and Refugee Board issued guidelines relating to “Women Refugee Claimants Fearing Gender-Related Persecution,” which prescribe the recommended form of analysis when determining whether a woman has a well-founded fear of gender-related persecution. The importance of such a policy development role in determining the extent of deference to be accorded to an administrative tribunal was recognized in Pezim: “[w]here a tribunal plays a role in policy development, a higher degree of judicial deference is warranted with respect to its interpretation of the law.”[41]

In my opinion, the Supreme Court of Canada’s decision in Mossop,[42] in which the majority of the Court determined that the standard of review of findings on questions of law by the Canadian Human Rights Tribunal is correctness, is distinguishable. In that case, the Court was concerned with a tribunal whose decisions have “a direct influence on society at large in relation to basic social values” and a general question of law which involved “concepts of statutory interpretation and general legal reasoning which the courts must be supposed competent to perform.”[43] The interpretative question at issue in Mossop, the meaning of the words “family status” within the quasi-constitutional context of human rights legislation, is one over which the courts will always retain general supervisory jurisdiction because its determination is unrelated to issues of expertise or specialized knowledge and does not require a high degree of deference. The questions at issue here are not broad questions involving general principles of statutory interpretation and legal reasoning, but the interpretation of a statutory definition within a specific international law and regulatory framework. Further, in Zurich Insurance Co. v. Ontario (Human Rights Commission),[44] the Supreme Court determined that a human rights tribunal does not have the kind of expertise that should enjoy curial deference on questions of law.

On the basis of the above, it is my view that the Refugee Division is a specialized tribunal similar to those considered in Pezim, PSAC No. 2, Bell Canada and Bradco, and as such should be accorded “considerable” or “significant” curial deference with respect to decisions made squarely within the scope of its jurisdiction and special expertise. This deference applies not only to the facts as found by the Refugee Division, but also to the legal questions before it. The principle of deference extends to appellate courts as well. In Lapointe v. Hôpital Le Gardeur,[45] the Court enunciated the standard of manifest and palpable error on an appeal. The following principles can be ascertained from the Court’s decision:

1) An appellate court should not interfere with the findings and conclusions of fact of a trial judge, failing a manifest error.

2) This privileged position of the trier of fact extends not only to the testimony of ordinary witnesses, but of expert witnesses.

3) The principle of non-intervention also applies where the only issue is the interpretation of the evidence as a whole.[46]

Therefore, with respect to the findings and conclusions of fact of a specialized tribunal, a supervisory court will intervene only when it has been shown that there is a manifest or palpable error, that is that the findings and conclusions of fact are patently unreasonable.

This standard was applied by the Federal Court of Appeal with respect to an error of law in a credible basis decision. In Canada (Minister of Employment and Immigration) v. Letshou-Olembo,[47] Mr. Justice Marceau stated the following:

… this review can still only be very limited in scope. Only the finding of a manifest error of law that may have caused a misunderstanding of the purpose of the inquiry could authorize the Court to intervene.[48]

Thus, deference also extends to the legal questions before the tribunal in the light of its role and expertise.

Given my conclusion that the Refugee Division is a specialized tribunal to which this Court should accord considerable deference, when reviewing its findings on questions of law and questions of fact the standard of judicial review to be applied is patent unreasonableness. In Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation,[49] the Supreme Court applied the standard of patent unreasonableness and gave some indication as to its meaning:

… was the Board’s interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review?

In Blanchard v. Control Data Canada Ltd. et al.,[50] Mr. Justice Lamer [as he then was] referred to CUPE and characterized the question formulated above as “the classic statement of the approach taken by th[e] Court.” He went on to state that “[t]his is a very severe test and signals a strict approach to the question of judicial review.[51] In Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740,[52] Madam Justice McLachlin reaffirmed the patently unreasonable test, stating that:

Courts should exercise caution and deference in reviewing the decisions of specialized administrative tribunals, such as the Labour Board in this case. This deference extends both to the determination of the facts and the interpretation of the law. Only where the evidence, viewed reasonably, is incapable of supporting a tribunal’s findings of fact, or where the interpretation placed on the legislation is patently unreasonable, can the court interfere.

Mr. Justice Cory, in PSAC No. 2, provided another formulation of the “patently unreasonable” test:

Thus, based on the dictionary definition of the words “patently unreasonable”, it is apparent that if the decision the Board reached, acting within its jurisdiction, is not clearly irrational, that is to say evidently not in accordance with reason, then it cannot be said that there was a loss of jurisdiction. This is clearly a very strict test.

…

It is not enough that the decision of the Board is wrong in the eyes of the court; it must, in order to be patently unreasonable, be found by the court to be clearly irrational.[53]

Thus, in reviewing decisions of the Refugee Division with respect to questions of law and fact within their expertise, the standard of judicial review to be applied to the grounds of review set out in paragraphs 18.1(4)(c) and (d) of the Federal Court Act is that of patent unreasonableness. Further support for this conclusion may be found in recent decisions of the Court of Appeal on applications for judicial review of decisions of the Refugee Division in which the standard applied was patent unreasonableness[54] and recent decisions by my colleague, Mr. Justice McKeown.[55]

The second question to be determined here is whether the questions of law and fact at issue in this case are within the tribunal’s area of expertise and, as such should be accorded “considerable” or “significant” deference. In my opinion, the factual determination of whether circumstances had changed in Colombo is a question squarely within the particular expertise of the Refugee Division. Further, the legal determination of whether a reasonable IFA was available to the applicants in Colombo is another question squarely within the special expertise of the tribunal. The Refugee Division has available to it extensive documentation regarding the situation in Colombo and it heard the testimony of the applicants on this issue. The determination of both questions requires an evaluation of the circumstances of the applicants, as related by them in oral testimony, and an expert understanding of the country conditions prompting their flight. This process of evaluating the subjective experiences of the applicants weighed along with or against objective evidence regarding these experiences and other country conditions is at the heart of every Convention refugee determination and courts should accord any resulting findings considerable deference.

The third question is whether, in this instance, the tribunal erred, in terms of a patently unreasonable error of law or fact, in concluding that an IFA was available to the applicants in the circumstances of their claim. In my opinion, the Refugee Division’s determination that an IFA was available to the applicants in Colombo is not unreasonable, let alone “patently unreasonable” or “clearly irrational.” The tribunal considered the test set out in Rasaratnam v. Canada (Minister of Employment and Immigration),[56] and Thirunavukkarasu v. Canada (Minister of Employment and Immigration)[57] and had regard to the evidence before it when it made its determination.

For the above reasons, the application for judicial review is dismissed.

I must now consider whether this case raises a serious question of general importance. Subsection 83(1) [as am. by S.C. 1992, c. 49, s. 73] of the Immigration Act provides as follows:

83. (1) A judgment of the Federal Court—Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court—Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question.[58]

I am of the opinion that the appropriate standard of judicial review applicable to decisions of the Refugee Division made pursuant to subsection 69.1(1) of the Immigration Act is a serious question of general importance. Therefore, I am certifying that a serious question of general importance is involved and state the following question:

Whether, in applications for judicial review of decisions of the Refugee Division acting within the limits of their jurisdiction under subsection 69.1(1), of the Immigration Act, the standard of judicial review to be applied to the grounds set out in paragraphs 18.1(4)(c) and (d) is that of patent unreasonableness.

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