Date: 20111003
Docket: A-482-10
Citation: 2011 FCA 273
CORAM: SEXTON
J.A.
EVANS
J.A.
STRATAS
J.A.
BETWEEN:
BRANDON CARL HUNTLEY
Appellant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered from the Bench at Toronto, Ontario, on October 3, 2011)
EVANS J.A.
[1]
Brandon
Carl Huntley, a white citizen of South Africa, was found by the Refugee Protection Division of the
Immigration and Refugee Board (Board) to be a refugee. It held that Mr Huntley
had a well-founded fear of persecution on the ground of his race. The decision
received considerable publicity and was criticised as racist by the Government
of South Africa.
[2]
The
Minister of Citizenship and Immigration (Minister) made an application for
judicial review to the Federal Court to set aside the Board’s decision. The
matter came before Justice Russell (Judge), who held that the Board’s decision
was unreasonable in light of the evidence before it. Consequently, he granted
the application and remitted the matter to the Board for re-determination in
accordance with his reasons, which are published at 2010 FC 1175.
[3]
Mr Huntley
also argued that the proceeding constituted an abuse of process because the
Minister had brought the application for judicial review in response to
diplomatic pressure from the South African Government, and that for the Court
to grant the Minister’s application would create an apprehension that it was
biased and lacked independence. The Judge rejected this argument also, having
found that there was no evidence that the Minister had made the application for
judicial review for a reason other than that he thought that the Board’s
decision was wrong.
[4]
Paragraph
74(d) of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (IRPA), provides that no appeal lies to this Court from a decision of the
Federal Court in matters governed by IRPA, unless the judge who heard the
application for judicial review certifies that a serious question of general
importance is involved and states the question.
[5]
In the
present case, the Judge refused to certify questions proposed by counsel
concerning political interference with IRPA proceedings and the allegations of
perceived bias and lack of independence. He held that the questions proposed
were hypothetical since he had concluded that there was no factual basis for
their premise, namely that the Minister had brought an application for judicial
review as a result of diplomatic pressure.
[6]
Undeterred,
counsel for Mr Huntley has appealed to this Court, arguing that paragraph 74(d)
has been held not to oust the general right of appeal from the Federal Court
pursuant to section 27 of the Federal Courts Act, R.S.C. 1985, c. F-7,
when the ground of appeal is that the Applications Judge was biased, or
wrongfully assumed or declined jurisdiction.
[7]
We agree
that, despite the apparently plain language of paragraph 74(d),
Parliament cannot have intended to immunize alleged errors from appellate
scrutiny which, if not subject to review, would undermine the rule of law and
public confidence in the due administration of justice. However, in our view,
the errors that the Judge is alleged to have committed in this case do not fall
within this narrow category.
[8]
The
principal so-called “jurisdictional” error invoked by counsel for Mr Huntley is
that the Judge did not apply the reasonableness standard of review to the
Board’s findings of fact. Instead, counsel says, he substituted his own view
of the evidence for that of the Board and made de novo findings of fact.
Even if the Judge erred as alleged, failing to apply the appropriate standard
of review is a run-of-the-mill error of law, and not a usurpation of
jurisdiction falling outside paragraph 74(d).
[9]
Counsel
also argues that Mr Huntley’s appeal should be heard because he alleges abuse
of process by the Minister. However, the Judge found that there was no
evidentiary basis for this allegation, and hence refused to certify the
questions of law proposed by counsel because they were hypothetical.
[10]
Even if
the abuse of process alleged here could be the subject of an appeal in the
absence of a certified question, we are not persuaded that the Judge made any
reversible error in rejecting the allegation as unsupported by the evidence. It
follows that counsel’s related allegations of apprehended bias and lack of
independence on the part of the Judge must also fail.
[11]
In the
alternative, counsel submits that paragraph 74(d) violates section 7 of
the Canadian Charter of Rights and Freedoms. We do not agree.
This issue has been settled by Huynh v. Minister of Citizenship and
Immigration, [1996] 2 F.C. 976 (C.A.).
[12]
Not are we
satisfied that, on the facts of this case, Mr Huntley has established that he
cannot get a fair hearing when the matter is remitted to the Board.
[13]
For these
reasons the appeal will be dismissed. The totally unmeritorious nature of this
appeal constitutes “special reasons” within the meaning of rule 22 of the Federal
Courts Immigration Rules, SOR/93-22, and costs of the appeal will be
awarded to the Minister.
“John M. Evans”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-482-10
(APPEAL
FROM A JUDGMENT OF THE FEDERAL COURT DATED NOVEMBER 24, 2010, DOCKET NO.
IMM-4423-09)
STYLE OF CAUSE: BRANDON CARL HUNTLEY v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto,
Ontario
DATE OF HEARING: October 3, 2011
REASONS FOR JUDGMENT OF
THE COURT BY: (SEXTON, EVANS, STRATAS JJ.A.)
DELIVERED FROM THE BENCH BY: EVANS J.A.
APPEARANCES:
|
Rocco Galati
Russell
Kaplan
|
FOR
THE APPELLANT/
APPLICANT
|
|
Bernard Assan
Asha
Gafar
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Rocco Galati
Toronto, Ontario
|
FOR THE APPELLANT/
APPLICANT
|
|
Myles J. Kirvan, Deputy Attorney
General of Canada
Toronto,
Ontario
|
FOR THE RESPONDENT
|
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