Policy note for identification of MB8-00025 as a Refugee Appeal Division Jurisprudential Guide

​​​​​​​​​On December 22, 2020,​ pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act (the Act), and after consultation with the Deputy Chairpersons, I identified the following Refugee Appeal Division (RAD) decision as a jurisprudential guide:

  • MB8-00025
    Scope: In applying Article 1E of the Refugee Convention, whether members should consider allegations of risk in a country of residence if they conclude that a refugee claimant has the rights and obligations which are attached to the possession of nationality in that country. 

The Act requires the IRB to “…deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.”

To assist the IRB in meeting this requirement, paragraph 159(1)(h) of the Act authorizes me to identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons, to assist members in carrying out their duties.

The issuance of jurisprudential guides is meant to facilitate decision-making in a manner that meets the twin requirements of fairness and efficiency, enabling the IRB to discharge its statutory obligation as discussed in the recent decision of the Federal Court of Appeal in CARL.Footnote 1

Decision MB8-00025 will assist Refugee Protection Division (RPD) and Refugee Appeal Division members in carrying out their duties because it provides a detailed, clear, and sound analysis of the application of Article 1E of the United Nations Convention Relating to the Status of Refugees (Refugee Convention). The decision considers the higher court jurisprudence on Article 1E and identifies an interpretation and a framework for analysis that will help to foster a consistent, fair, and efficient treatment of this issue by both the RPD and the RAD.

Decision MB8-00025 assesses the jurisprudence on Article 1E of the Refugee Convention and provides a preferred interpretation of this clause in situations where a refugee claimant has the rights and obligations similar to a national of a third country and is alleging risk of mistreatment in that country. By providing a preferred interpretation of Article 1E, decision MB8-00025 will assist members in carrying out their duties efficiently, consistently and in accordance with the law. The overview at paragraphs 1-4 and the analysis at paragraphs 22-71 of the decision form the basis of this Jurisprudential Guide.

As indicated in the IRB’s Policy on the Use of Jurisprudential Guides (December 3, 2019), jurisprudential guides are not binding and members remain free to reach their own conclusions, based on the facts of each particular case. Members are encouraged to consider the reasoning in jurisprudential guides in cases with similar facts or explain their reasoning for not doing so.

The key determination in this jurisprudential guide relates to a question of law. The IRB will carefully monitor developments in the jurisprudence to ensure that the identification of this jurisprudential guide remains consistent with any future jurisprudential developments.

Richard Wex
Immigration and Refugee Board of Canada
(December 22, 2020) ​