Background
Shwan Jaffer Nader is a refugee claimant whose case has wound through Canada’s protection system across three separate Refugee Appeal Division (RAD) decisions and two prior Federal Court judicial reviews. The original RPD decision, issued in May 2021, found him excluded from refugee protection under Article 1F(b) of the Refugee Convention — incorporated into Canadian law through section 98 of the Immigration and Refugee Protection Act — on the basis that there were serious reasons to believe he had committed a serious non-political crime in the United Kingdom (handling stolen goods) before entering Canada. That exclusion finding was the sole issue the RPD addressed; it explicitly deferred consideration of Article 1E exclusion and the inclusion claims under sections 96 and 97 of the IRPA to a future hearing if needed.
After the first RAD confirmed the RPD’s exclusion finding, the Federal Court (Justice Go) granted judicial review in 2023. On redetermination, the second RAD reversed the Article 1F(b) exclusion but then conducted an inclusion analysis and rejected the claim on credibility grounds — without the benefit of a complete evidentiary record, since the RPD hearing had been confined to Article 1F(b). The Federal Court (Justice Turley) granted judicial review of that credibility finding in January 2024, remitting the matter to a differently constituted RAD panel solely on the sections 96 and 97 credibility issue, explicitly leaving the second RAD’s Article 1F(b) finding intact and declining to allow the Minister to relitigate that issue.
The third RAD, whose September 2024 decision is the subject of this judicial review, allowed the appeal but found it could not itself conduct a credibility assessment without a sufficient evidentiary record. It therefore referred the matter back to the RPD for a full redetermination — directing the RPD to consider all issues except Article 1F(b) (protected by Justice Turley’s order) and identity (absent new information). Crucially, the third RAD’s directions left Article 1E exclusion — a question that had never been decided by any tribunal — open for the RPD to address. The applicant challenged that direction as exceeding the scope of Justice Turley’s remittal.
The Court’s Holding
Justice Strickland dismissed the application for judicial review, finding the third RAD’s decision was reasonable in all respects. On the threshold question of standard of review, the Court rejected the applicant’s argument that the third RAD’s interpretation of Justice Turley’s order should be reviewed on a correctness standard. Applying Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, the Court held that the presumption of reasonableness review was not displaced: the interpretation of a prior court order, in the course of an administrative redetermination, does not fall within the narrow rule-of-law exceptions requiring correctness review, particularly where the question is simply whether the tribunal’s understanding of that order was reasonable rather than a clear refusal to comply with it.
On the merits, the Court found the third RAD’s directions to the RPD were a reasonable reading of Justice Turley’s judgment. That judgment addressed only the second RAD’s unreasonable credibility findings on sections 96 and 97; it said nothing about Article 1E because Article 1E had not been raised before Justice Turley. The second RAD had itself made no finding on Article 1E — the RPD’s original hearing was expressly limited to Article 1F(b), and the RPD had explicitly reserved Article 1E and inclusion issues for a possible future sitting that never occurred. Because Article 1E was never decided by the RPD, the second RAD, or any Federal Court, the doctrine of issue estoppel had no application, and the second RAD’s silence on Article 1E could not be read as an implicit acceptance that section 98 was not triggered on any other ground.
The Court further held that directing the RPD to consider Article 1E was consistent with the principles of natural justice that underpinned Justice Turley’s own reasoning: just as the second RAD could not fairly reject the applicant’s claim on credibility without a full evidentiary record, it equally could not have decided Article 1E without one. Both the applicant and the Minister had been denied the opportunity to adduce evidence on Article 1E when the RPD confined its original hearing to Article 1F(b). Allowing the RPD to canvass Article 1E on redetermination therefore did not contravene Justice Turley’s order and was a reasonable exercise of the third RAD’s jurisdiction.
Key Takeaways
- When an administrative tribunal interprets a prior court order in the course of its own redetermination, the applicable standard of judicial review remains reasonableness under Vavilov, not correctness — even though what is being interpreted is a judicial judgment rather than legislation.
- A prior court order limiting the scope of a RAD redetermination protects only the issues explicitly addressed and decided in that order; issues that were never litigated before the reviewing court remain open for the tribunal to address on remittal.
- Issue estoppel will not bar reconsideration of an exclusion ground under section 98 of the IRPA where no tribunal or court has ever made a final determination on that ground — silence in a prior decision is not an implicit finding.
- Where an RPD hearing is deliberately confined to one exclusion issue with all parties on notice that other issues would be addressed at a future sitting, natural justice entitles both the claimant and the Minister to that future opportunity; a remittal to the RPD is the appropriate vehicle to provide it.
Why It Matters
This decision provides important guidance on the scope of Federal Court remittal orders in multi-stage refugee proceedings. It confirms that when a court sets aside a RAD decision on a discrete issue, the remittal order does not silently resolve — or foreclose — other issues that were never properly before the court. Refugee adjudicators, the Minister, and claimants must pay close attention to which findings a reviewing court actually addresses; only those findings are “locked in.” Issues on which the evidentiary record was never fully developed remain live, and directing their reconsideration is not an abuse of process.
The case also reinforces that the standard of review for an administrative body’s interpretation of a court order is reasonableness, not correctness, absent a clear non-compliance or one of Vavilov‘s narrow rule-of-law exceptions. For practitioners, this means challenges to the scope of a tribunal’s redetermination directions will face the high bar of demonstrating unreasonableness, not merely that a different scope would have been more appropriate.