Brandon Huntley V Minister Of Citizenship [Canada] – Part 3.

The media reported recently, and perhaps with a little less passion than previously, that the Federal Court of Appeal [“FCA”] had dismissed Mr. Huntley’s appeal (against the refusal of his application for refugee status in Canada), had been dismissed at the beginning of October 2011; the courts had reportedly termed the appeal “totally unmeritorious.”

Mr. Huntley has applied to be recognised in Canada as a refugee because, amongst his various claims, white people in South Africa were the victims of a deliberate and ongoing campaign of “genocide.”

The latest series of media reports may have created a false impression. In 2010, the Federal Court [“FC”], which is a court much like our High Court, had upheld the Canadian Government’s application to overturn the decision of the Immigration & Refugee Board [“IRB”].

It was the IRB which had originally approved Huntley’s application for refugee status. Importantly, as part of its decision, the Federal Court had referred Mr. Huntley’s application for asylum back to the IRB to be considered afresh having regard to the Federal Court’s reasoning and criticisms of the earlier decisions.

In response to the decision of the FC, Mr. Huntley asked that court to allow him to appeal against that decision and to take it to the FCA. The FC refused to give him permission. But Mr. Huntley’s lawyers are not appealing whether or not he is a refugee – that issue has still to be heard again by the IRB.

The case in the courts now turns on in what circumstances a decision by the Federal Court can be appealed to the FCA.

So Mr. Huntley has approached the Federal Court of Appeal to challenge the lawfulness of the refusal by the FC to grant him permission to appeal to the FCA. And so it was on the narrow point of when one can and cannot appeal from a decision of the Federal Court to the Federal Court of Appeal that Huntley’s present appeal was rejected as being “totally unmeritorious.” It is not his application for refugee status that was rejected by the appeal court.

However the FCA did comment that, in any event, it did not consider that the FC had committed any error that could be taken on appeal or that the FC had been biased against Mr. Huntley.

His application for asylum must accordingly, still be presented again to the Canadian IRB - once Mr. Huntley exhausts his challenges to the appellate arrangements of the Canadian federal court system. And if the media reports are correct, Mr. Huntley now plans to approach the Canadian Supreme Court (the equivalent of our Constitutional Court) to challenge the decision of the FCA.

It is therefore unlikely that Mr. Huntley will be seen returning to South Africa any time soon.