The Federal Court is giving refugees a broader basis for appeals, telling Canada's Refugee Appeal Division that it can overturn a decision based on the merits of the case, rather than only if there was a mistake in the legal process.

Until now, the Refugee Appeal Division of Canada's Immigration and Refugee Board would only look at the process used to decide whether someone was a refugee. The RAD, as it's known, wouldn't reassess the facts of the case before coming to its decision.

Federal Court Judge Michael Phelan, in a decision released Friday, said the RAD has the power to consider whether a decision by the Refugee Protection Division (RPD) is wrong rather than look at whether it was a reasonable decision to make.

"It really is exciting that this is what this decision had concluded," said Cheryl Robinson, who represented the three applicants, who came from Kosovo.

"Justice Phelan gave very clear direction to the RAD as to how they should be deciding... [it's a] very strong, well-reasoned decision."

Phelan wrote that "the RAD performs an appellate function, not a judicial review function" and that its purpose was to perform a fact-based review.

The RAD, Phelan wrote, "must review all aspects of the RPD’s decision and come to an independent assessment ... Where its assessment departs from that of the RPD, the RAD must substitute its own decision."

The government can decide to appeal the decision to the Federal Court of Appeal.

Under threat in Kosovo

Bujar Huruglica, Sadije Ramadani and Hanife Huruglica went to the Federal Court to appeal a decision by the RAD that upheld a previous decision that they were not refugees as defined by the United Nations, nor persons in need of protection.

Bujar and Hanife are spouses, and Ramadani is Hanife's mother. All three are Muslims from Kosovo. Bujar Huruglica and Ramadani worked for the U.S. government in Iraq, Afghanistan and Kosovo, which they said drew death threats from the Wahhabi, Islamic extremists. Kosovo police, they say, did nothing to respond to their complaints.

Ramadani left Kosovo in October, 2012, and travelled to the U.S.

In January, 2013, the Huruglicas joined her, and they entered Canada together.   

Their refugee claims were dismissed, Phelan wrote, on June 19, 2013, because "they had spent time in the U.S. on visitors’ visas and did not seek asylum in the U.S., which impacted the credibility of this claim. Moreover, the documentary evidence did not support the power and presence of Islamic extremists in Kosovo.​"

The Huruglicas and Ramadani also failed to rebut the "presumption of state protection," that is the idea that the police in Kosovo could protect them and so they weren't refugees.

Kenney's statement in House cited in decision

The appeal was heard by a single member of the Refugee Appeal Division, who ruled on Sept. 5, 2013, the same day on which the appeal was heard. There was no oral evidence or additional evidence submitted — the adjudicator simply looked at the findings of the Refugee Protection Division and confirmed the findings.

But Phelan found that, since the Refugee Protection Division found the Huruglicas and Ramadani to be credible, their complaints that the police did nothing shouldn't be dismissed.

Phelan cited former immigration minister Jason Kenney in his decision, quoting Kenney from a debate in the House of Commons over the government's reforms to the refugee system.

"I reiterate that the bill would also create the new refugee appeal division. The vast majority of claimants who are coming from countries that do normally produce refugees would for the first time, if rejected at the refugee protection division, have access to a full fact-based appeal at the refugee appeal division of the IRB. This is the first government to have created a full fact-based appeal," Kenney told the House.

Federal Court refugee appeal decision

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