Date: 20060727
Docket: IMM-7697-05
Citation: 2006 FC 892
BETWEEN:
NOOR HOSSAIN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
AMENDED REASONS FOR ORDER AND ORDER
HARRINGTON J.
[1] Noor Hossain's bid for refugee status in Canadawas not successful. The Refugee Protection Division of the Immigration and Refugee Board gave detailed reasons why his story that he was persecuted by BNP goons while he was in Bangladesh was rejected. Indeed, it was unlikely that he was in Bangladesh when the alleged persecutory events took place. He may well have been in the United States, where he did not claim refugee protection. There was, according to the Board member, no reasonable possibility that he would be targeted for persecution should he return to Bangladesh. This is a judicial review of that decision.
[2] Mr. Hossain has focused on one issue, and one issue only, which is whether the Board breached its duty of procedural fairness by questioning Mr. Hossain before his lawyer did.
[3] Section 159(1)(h) of the Immigration and Refugee Protection Act ("IRPA") authorizes the Chair of the Board to issue guidelines "to assist members in carrying out their duties...". The Chair issued Guideline 7 which was implemented in June 2004 and concerns the preparation and conduct of a hearing in the Refugee Protection Division. Sections 19 and 23 provide that the standard practice is for the Refugee Protection Officer to start questioning the claimant. If there is no Refugee Protection Officer participating, as is the case here, the Board member will begin, followed by the claimant's counsel. These sections, as well as the introductory paragraphs of the Guideline, provide that this reverse ordering of questioning applies to most cases, but that the Member may vary the order in compelling or exceptional circumstances, for example if the claimant is severely disturbed or a very young child. Counsel who wishes to proceed first should make a written application in advance of the hearing as per section 44 of the Refugee Protection Division Rules.
[4] Counsel for Mr. Hossain made a general objection at the beginning of the hearing that the concept of audi alteram partem required that he proceed first. The Board member engaged in a meaningful dialogue before rejecting that request. She mentioned that she had on several occasions personally not followed the Guidelines when there were special reasons. However, in this case the only reason advanced was that the claimant had five years of formal education. This was not, in her view, sufficient reason as his story was very articulate, not only in the account of facts but also in terms of ideology, and he had himself represented that he had been in a leadership position in Bangladeshi politics because he was more literate than other people.
[5] Mr. Hossain's position is that the mere following of Guideline 7 is in itself a breach of the principles of natural justice and procedural fairness. As stated by Mr. Justice Le Dain in Cardinal v. Kent Institution, [1985] 2 S.C.R. 643, at paragraph 23:
... the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.
[6] Issues of procedural fairness may be considered as outside the scope of judicial review or, put another way, are to be reviewed on a correctness standard. No deference is owed the decision maker (Sweet v. Canada(Attorney General), 2005 FCA 51, [2005] F.C.J. No. 216 (QL)). These issues are questions of law (C.U.P.E. v. Ontario(Minister of Labour), [2003] 1 S.C.R. 539).
[7] The Minister argues that the Board's reasoning was very clear and elaborate, and that there were major contradictions in Mr. Hossain's testimony which justified the decision to reject the claim.
[8] It was submitted that not only were the findings of fact not patently unreasonable, there were eminently reasonable, as any reading of the record would amply demonstrate. Having read the record I agree.
ANALYSIS
[9] Guideline 7 has been subjected to intense scrutiny by this Court this year in two decisions: Thamotharem v. Canada (Minister of Citizenship and Immigration), 2006 FC 16, [2006] F.C.J. No. 8, a decision of Blanchard J., and Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 461, [2006] F.C.J. No. 631 (Mosley J.). Both Justices Blanchard and Mosley carried out an extensive and thoughtful analysis of the issues and the jurisprudence. I see no need to do the same. They agreed on many points, and differed on others, to some extent because the evidence before them was different. However, there was one fundamental point on which they could not agree, a point on which no amount of evidence would make any difference. They differed in their interpretation of the meaning of the Guideline.
[10] Both were of the view that the reverse order of questioning in and of itself was not procedurally unfair or did not otherwise violate the principles of natural justice. Based on the evidence before him, Mr. Justice Blanchard found that there was top-down pressure not to stray from the Guideline which textually was mandatory. He said:
¶ 135 In the instant case, I am satisfied that there is significant evidence that the IRB made known to its members that they are expected to comply with the guideline save in exceptional cases. The problem is not so much with the expression of this expectation by the IRB, but rather its combination with a number of factors: the monitoring and expectation of compliance, the evidence of compliance, and especially the mandatory language of Guideline 7. These factors, in my view, all serve to fetter Board members' discretion...
[11] As I read it, and as Mr. Justice Mosley read it, each enumerated factor severally served to fetter the decision maker's discretion. This is what Mr. Justice Mosley had to say at paragraph 142 of Benitez:
¶ 142 The finding in Thamotharem that members' discretion is fettered turns on the language of the Guideline itself and the extrinsic evidence about how it could be interpreted and applied by RPD members and not on the facts of the particular case.
[12] However, Mr. Justice Mosley was unable to share Mr. Justice Blanchard's view of the mandatory or permissive nature of the language found in Guideline 7. He focused more on the evidence which was before him, which was more extensive than that before Mr. Justice Blanchard. He said at paragraphs 163, 171 and 178:
¶ 163 I accept that the language of Guideline 7 could be construed as mandatory in nature by an inexperienced and less confident Board member and that Board members in general may, as found by Justice Blanchard, feel some top-down pressure to follow it. But that does not necessarily lead to the conclusion that members consider themselves bound to apply it as if it were legislation, a regulation or a formal rule made under the Chairperson's authority.
...
¶ 171 There is considerably more evidence before me as to the manner in which Guideline 7 is actually being applied by RPD members than there was before my colleague in Thamotharem. On that evidence in these proceedings, I am not satisfied that the applicants have demonstrated that the discretion of RPD members to determine the procedure to be followed in the refugee proceedings before them has been fettered by the implementation of Guideline 7.
...
¶ 178 The term "guideline" does not appear to be defined in the statutes. The definition provided by the Canadian Oxford Dictionary, 2001 Edition, is "a principle or criterion, guiding or directing action". "Directives" as employed in the French version, may also be construed as directing action. The definition provided by Le Petit Robert, 2002 edition, is "indication, ligne de conduite donnée par une autorité." In Thamotharem, Justice Blanchard employed the definition from the Oxford English dictionary: "a line for guiding; a directing or standardizing principle laid down as a guide to procedure, policy, etc."
[13] There is certainly no evidence in this case that the Board member was under "top-down" pressure to apply Guideline 7. The issue is whether the presumption that the Guideline is to apply unless there are, to use the language of the Guideline itself, "compelling and exceptional circumstances", fetters the Board member's discretion to decide the most appropriate process, which in turn leads to an unfair hearing.
[14] As Mr. Justice Blanchard stated at paragraph 140 of Thamotharem:
¶ 140 Procedural fairness in the refugee determination process requires at a minimum the right to a fair hearing: see Singh, above. Fundamental to the right of a fair hearing is that a Board member exercise independent judgment in deciding a case on its merit free from undue influence. Fettering of a Board member's discretion to decide the most appropriate process in the circumstances of each case constitutes undue influence and violates the principles of procedural fairness.
[15] Both the Thamotharem and Benitez decisions are reasonable, but ultimately one interpretation of the Guideline must prevail. Questions of general importance were certified in each case, and so it falls upon the Court of Appeal to decide which is correct. However, until those cases are heard and decided, this Court must continue to make decisions. While I in no way presume to predict what the Court of Appeal will decide, justice requires that I deal with Mr. Hossain's case now. The reasoning of Mr. Justice Mosley is in my view preferable.
[16] Natural justice requires that one have the opportunity to be heard by an independent decision maker, and to know the case that has to be met. In [1977] 1 S.C.R. 147">Hamel v. Brunelle, [1977] 1 S.C.R. 147, Mr. Justice Pigeon reminded us, at page 156, "that procedure [should] be the servant of justice not its mistress." A "hearing" before an administrative tribunal does not necessarily mean a face-to-face oral hearing, but following the decision of the Supreme Court in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, IRPA specifically contemplates that type of hearing.
[17] Both Mr. Justice Blanchard and Mr. Justice Mosley analyzed the factors discussed by Madam Justice L'Heureux-Dubé in Baker which have to be taken into account in determining whether the common law duty of fairness has been breached in a particular situation.
[18] I agree with and have nothing to add to Mr. Justice Mosley's analysis of Baker as set forth at paragraphs 85 to 128 of his reasons. In my view, we should focus more on form, than on substance, as per Mr. Justice Pigeon, supra.
[19] Consequently, the application for judicial review will be dismissed.
CERTIFIED QUESTIONS
[20] Counsel for Mr. Hossain submitted that if the application were to be rejected then the seven questions certified by Mr. Justice Mosley in Benitez should also be certified in this case. Counsel for the Minister submitted that no questions should be certified because the allegations are raised on a hypothetical basis and on general considerations. Problematic questions should not be certified (Ha v. Canada(Minister of Citizenship and Immigration), 2004 FCA 49, [2004] F.C.J. No. 174 (QL)).
[21] One of the seven questions certified by Mr. Justice Mosley is not relevant within the context of this case. That was "when must an applicant raise an objection to Guideline 7 in order to be able to raise it upon judicial review?" Notwithstanding that the Guideline itself calls for a request that reverse questioning not be followed be made in writing prior to the hearing, the Board did not decide on that basis, and the point was not taken by the Minister.
[22] As to the other six, there are two reasons why I am prepared to certify questions. The first is that fairness cannot be sacrificed in the interests of efficiency. The second is that Benitez was actually a decision on 19 cases in which leave had been granted but which had not been heard when the Thamotharem decision was handed down. The cases were consolidated, and then bifurcated. Mr. Justice Mosley dealt with Guideline 7 as a stand-alone issue, while other judges dealt with the other issues pertinent to each judicial review. Some applicants prevailed on those other issues, while others did not. Those that did not have the right to appeal and to submit that principles of natural justice were violated, that Board members' discretion was fettered and that there was a reasonable apprehension of bias. It would be grossly unfair not to preserve Mr. Hossain's position and deprive him of the opportunity of making those same arguments simply because his application was instituted a few months after Mr. Benitez'. Nothing prevents the parties from seeking directions from the Court of Appeal as to a joinder, or as to a stay.
[23] Mr. Hossain shall have until 24 July 2006 to propose the same questions he did at the hearing, variations thereof or additions thereto. The Minister shall have until 27 July 2006 to respond.
[24] Following the circulation of the original reasons for order, Mr. Hossain remained firm with the seven Benitez questions. Notwithstanding the elegant representations on behalf of the Minister that there was no question of general importance or, in the alternative, the questions should be far more limited, I have decided that I should certify the first six questions certified by Mr. Justice Mosley in Benitez, supra. I am not certifying the seventh question which relates to when the objection to the reverse order of questioning should be raised, as it is not an issue in this case. As aforesaid, the other issues are alive, and before the Court of Appeal. In this regard, I am taking the lead of Mr. Justice Barnes in Somani v. Canada(Minister of Citizenship and Immigration)2006 FC 734.
ORDER
THIS COURT HEREBY ORDERS that the application for judicial review is dismissed. The Court further orders that the following questions be certified:
1. Does Guideline 7, issued under the authority of the Chairperson of the Immigration and Refugee Board, violate the principles of fundamental justice under s. 7 of the Charter of Rights and Freedoms by unduly interfering with claimants' right to be heard and right to counsel?
2. Does the implementation of paragraphs 19 and 23 of the Chairperson's Guideline 7 violate principles of natural justice?
3. Has the implementation of Guideline 7 led to fettering of Refugee Protection Division Members' discretion?
4. Does a finding that Guideline 7 fetters a Refugee Protection Division Member's discretion necessarily mean that the application for judicial review must be granted, without regard to whether or not the applicant was otherwise afforded procedural fairness in the particular case or whether there was an alternate basis for rejecting the claim?
5. Does the role of Refugee Protection Division Members in questioning refugee claimants, as contemplated by Guideline 7, give rise to a reasonable apprehension of bias?
6. Is Guideline 7 unlawful because it is ultra vires the guideline-making authority of the Chairperson under paragraph 159(1)(h) of the Immigration and Refugee Protection Act?
"Sean Harrington"
Ottawa, Ontario
July 27, 2006
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