In August, a judge ruled that the division of the Immigration and Refugee Board (IRB), which began hearing cases in 2013, has been using too narrow a scope to conduct its work.
In a case involving three failed refugee claimants from Kosovo, Judge Michael Phelan ruled the appeal division has been checking only the reasonableness of decisions by the board to declare whether individuals are refugees — the equivalent of a judicial review. Phelan said the division instead should exercise its full powers as an appeal body to reconsider the facts of a case and substitute a new decision if it disagrees with the appeal division.
Now the federal government is opposing that broadening of the appeal division's role.
The Federal Court certified the government's appeal last month. Requests for comment from Alexander on Thursday were not immediately returned.
Critics say the government's reaction to the ruling is predictable.
"The government is still looking for ways to limit a fair assessment of refugee claims," said Peter Showler, professor emeritus at the University of Ottawa faculty of law and a former IRB chair.
"They're constantly looking for the lowest common denominator."
Second government court challenge on refugees
It's the second time the government has launched an appeal on a refugee matter in recent weeks. In October, the government also appealed a ruling by Federal Court Judge Anne Mactavish, who found cuts to refugee health care were "cruel and unusual" treatment, and unconstitutional.
Refugee scholar Sharry Aiken of Queen's University in Kingston, Ont., said she expects the government to try to take the question of the scope of the refugee appeal process all the way to the Supreme Court if necessary.
"The government would most likely like to see the refugee appeal division have an eviscerated role as possible," she said. "I don't think this is a government that has demonstrated a commitment to protecting refugees."
For many years, the division was promised but never created. When it finally was created in 2012, the government placed several restrictions on who can launch an appeal. Critics say claimants from so-called safe countries such as Mexico and Hungary, along with claimants to come to Canada through the United States, should be allowed to appeal. Currently, they cannot.
Toronto immigration and refugee lawyer Cheryl Robinson represents Bujar and Hanife Huruglica and Sadije Ramadani of Kosovo, who won their appeal at the Federal Court this summer.
She says the government's appeal likely won't be heard until sometime next year. But she says the appeal division already appears to be using a broader scope as a result of Phelan's ruling this summer.
"I really do believe this [Phelan] decision has already made a difference," she said. "I have seen [refugee appeal division] decisions since this one that really reassess, and go back through the documents and come to their own conclusions. Which to me is the only reason for having that RAD body."
Lorne Waldman, a refugee lawyer who acted as an intervener in the case, notes there have been at least five other Federal Court rulings in recent months with varying opinions on what the scope of the appeal process should be. He said all of them ruled more latitude should be exercised by the division rather than a judicial review based on reasonableness. He says all those cases will be considered by the Federal Court of Appeal.
"And so once it's heard presumably we'll have a better idea," he said. "The Court of Appeal will give us an indication as to which position is correct — how broad an appeal it should be."