Amy Lambiris

Following a judgment allowing an application for judicial review of a Refugee Appeal Division decision, the Court certified three questions for appeal.

The questions addressed whether section 72(2)(a) of the IRPA requires an applicant to exhaust a rule 49(1) reopening application before seeking judicial review, whether a waiver of the collateral attack rule is warranted for unsuccessful reopening applications based on underlying policy considerations, and whether the threshold for prejudice caused by incompetent counsel is a reasonable probability or a serious possibility.

The applicants sought judicial review of a RAD decision confirming the refusal of their refugee claims based on a viable internal flight alternative (IFA) in Nigeria.

The applicants argued their former counsel was incompetent for failing to present evidence of the female applicant's sickle cell disease, and that the RAD's reliance on a revoked jurisprudential guide (JG) constituted a failure of natural justice.

The Federal Court held that the applicants were not barred from raising natural justice issues on judicial review without first exhausting the RAD reopening procedure under rule 49(1).

The Court waived the collateral attack rule, found the former counsel's failure to present medical evidence constituted incompetence meeting the "serious possibility" threshold, and noted the interplay with the revoked JG.

The application for judicial review was allowed and the matter remitted to a different RAD panel member.