Date: 20070525
Docket: A-164-06
A-187-06
A-188-06
A-196-06
A-197-06
A-198-06
A-199-06
A-200-06
Citation: 2007 FCA 199
CORAM: DÉCARY
J.A.
EVANS
J.A.
SHARLOW
J.A.
A-164-06
BETWEEN:
JORGE LUIS RESTREPO BENITEZ
Appellant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
and
THE IMMIGRATION AND REFUGEE BOARD
Intervener
A-187-06
BETWEEN:
EDWIN ERNESTO CARRILLO MEJIA
Appellant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
A-188-06
BETWEEN:
JUVINNY BALMORE FLORES GOMEZ
YANETH BEATRIZ CASTILLO CAMPOS
KONNY BEATRIZ FLORES CASTILLO
Appellants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
A-196-06
BETWEEN:
MAJID REZA YONGE SAVAGOLI
Appellant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
A-197-06
BETWEEN:
GERARDO MARTIN ROSALES RINCON
ERLIS BEATRIZ DELGADO OCANDO
GERLY JOANNY ROSALES DELGADO
WANDA SOFIA ROSALES DELGADO
Appellants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
A-198-06
BETWEEN:
MENA GUIRGUIS, MARIE GOORGY
MONICA GUIRGUIS, MALAK GUIRGUIS
Appellants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
A-199-06
BETWEEN:
AFUA GYANKOMA
Appellant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
A-200-06
BETWEEN:
INTHIKHAB HUSSAIN MATHEEN
Appellant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
A. INTRODUCTION
[1]
These are
consolidated appeals from decisions of the Federal Court dismissing the
appellants’ applications for judicial review to set aside decisions by the
Immigration and Refugee Board (“the Board”) rejecting their claims for refugee
protection in Canada.
[2]
The procedural
history of this matter is somewhat unusual. The Federal Court consolidated a
number of applications for judicial review impugning the validity of Guideline
7. Guideline 7 was issued by the Chairperson of the Board in 2003, pursuant to
the power conferred by paragraph 159(1)(h) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”), to issue guidelines to
assist members of the Board in carrying out their duties (“the Guideline 7
issue”).
[3]
Guideline
7 provides that the standard order of questioning at a refugee protection hearing
by the Refugee Protection Division (“RPD”) of the Board will be that the
claimant is questioned first by the Refugee Protection Officer (“RPO”) and/or by
the RPD member conducting the hearing. However, in exceptional cases, members
may permit claimants to be questioned first by their own counsel.
[4]
These consolidated
applications for judicial review were heard in the Federal Court on the
Guideline 7 issue by Justice Mosley, who held that Guideline 7 is valid: Benitez
v. Canada (Minister of Citizenship and
Immigration),
2006 FC 461, [2007] 1 F.C. R. 107. He certified the following seven questions
for appeal pursuant to IRPA, paragraph 74(d).
1. Does
Guideline 7, issued under the authority of the Chairperson of the Immigration
and Refugee Board, violate the principles of fundamental justice under section
7 of the Canadian 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?
7. When must
an applicant raise an objection to Guideline 7 in order to be able to raise it
upon judicial review?
[5]
We heard
the appeals from Justice Mosley’s decision immediately after hearing an appeal
from a decision of Justice Blanchard of the Federal Court, who found that
Guideline 7 unlawfully fettered the discretion of members to determine the
procedure to be followed at a refugee protection hearing: Thamotharem v.
Canada (Minister of Citizenship and Immigration), 2006 FC 16, [2006] 3
F.C.R. 168.
[6]
Although
not unanimous in its reasons, this Court unanimously allowed the Minister’s
appeal in Thamotharem, and dismissed Mr Thamotharem’s cross-appeal
against Justice Blanchard’s conclusion that Guideline 7 does not mandate a breach
of the duty of fairness. The decision of this Court is reported as Thamotharem
v. Canada (Minister of Citizenship and
Immigration),
2007 FCA 198.
[7]
All the issues
in dispute in Thamotharem also arose in the consolidated appeals, and
should be decided in the same manner and for the reasons given by the majority in
Thamotharem. That is to say, Guideline 7 does not breach the duty of
fairness by either denying claimants an effective opportunity to make
representations or so distorting the role of the member of the RPD hearing the
claim as to give rise to a reasonable apprehension of bias. Nor is it is an
unlawful fetter on members’ discretion, and it was not legally required to have
been issued under the Chairperson’s statutory power to issue rules of
procedure, subject to Cabinet approval.
[8]
It is
unnecessary in these reasons to canvass these issues again. Arguments made by
counsel in the consolidated appeals in respect of those issues were taken into
account in the preparation of the reasons in Thamotharem. The present
reasons deal with the issues raised in the consolidated appeals about
the validity of Guideline 7 which were not raised in Thamotharem.
[9]
In
addition to the Guideline 7 issue, some of the applicants in the consolidated
applications for judicial review raised non-Guideline 7 issues for challenging the
Board’s denial of their claims for refugee protection. The applications were
heard on these issues by Justices Gibson and Snider of the Federal Court, who
dismissed them. Some of the appellants in the consolidated appeals appealed the
dismissal of their applications for judicial review on non-Guideline 7 issues.
[10]
In my
opinion, all the consolidated appeals should be dismissed. I am not satisfied
that the Applications Judges made any material error on either the Guideline 7 issue
or the non-Guideline 7 issues.
B. ANALYSIS
1. Guideline 7
(i) Section 7 of the Charter
(a) participatory rights
[11]
Counsel argue
that section 7 of the Charter applies to refugee protection hearings by the RPD,
and that Guideline 7 is not in accordance with the principles of fundamental
justice, because it denies those with the burden of proof (that is, the
claimants) of the right to be questioned first by their counsel whenever they
so choose.
[12]
In support
of this argument, counsel rely on the difficulty faced by vulnerable claimants
in telling their story coherently after the RPO has already covered much of the
ground through questioning and focussing on the weaknesses of the claim for
refugee protection. Because of the relationship of trust that claimants
establish with their counsel, who have knowledge of their case, they are likely
to present their claim more effectively if questioned first by their own
counsel.
[13]
There is
no legal authority for the proposition that the principles of fundamental
justice require that parties with the burden of proof have the right to go
first in proceedings to determine their rights. However, counsel says that the
recent decision of the Supreme Court of Canada in Charkaoui v. Canada (Minister
of Citizenship and Immigration), 2007 SCC 9, states that the content of the
principles of fundamental justice depends on the individual rights at stake. In
the present case, the appellants say that the interests which may be affected
by the outcome of RPD hearings are of the greatest importance: the potential deportation
to countries where claimants fear for their lives, personal liberty, and bodily
integrity.
[14]
In my
view, this is not quite correct. Although the individual rights at stake in an
administative proceeding are important in determining the procedural content of
the principles of fundamental justice, the broader decision-making context from
which the issue arises must also be considered. Thus, McLachlin C.J. said in Charkaoui
(at para. 20):
Section 7 of the Charter requires no
particular type of process, but a fair process having regard to the nature
of the proceedings and the interests at stake. … The procedure required to
meet the demands of fundamental justice depend on the context. … [Emphasis
added]
[15]
In my
opinion, the inquisitorial nature of refugee protection hearings before the RPD
must be taken into account as part of “the nature of the proceedings”. Further,
while most adjudication in Canada is conducted on the basis of
an adversarial procedural model, I cannot agree that the inquisitorial
procedural model, in and of itself, is contrary to the principles of
fundamental justice.
[16]
Substantially
for the reasons given by Justice Mosley (at paras. 47-67) for finding that
there is no constitutional right for claimants to be questioned first by their
own counsel, as well as for the reasons given in our decision in Thamotharem
(at paras. 34-51) for concluding that Guideline 7 does not prescribe a
procedure which is in breach of the duty of fairness, it is my opinion that
Guideline 7 does not violate claimants’ right to participate at an RPD hearing
conducted in accordance with the principles of fundamental justice.
(b) Bias and lack of
independence
[17]
It is argued
that the principles of fundamental justice also require that members of a
tribunal, such as the RPD, which determines rights protected by section 7 of
the Charter must be, and must be seen to be, impartial and independent, both individually
and institutionally. Guideline 7 thrusts RPD members hearing refugee protection
claims “into the fray”, especially when no RPO is present, by requiring them,
in all but exceptional cases, to question claimants first. The initial
questioning of claimants by members is liable to give rise in the mind of the
reasonable person, who is informed of the facts and has thought the matter
through in a practical manner, to an apprehension that members hearing refugee
claims are not impartial.
[18]
I cannot
agree. As I have already noted, a determination of the content of the principles
of fundamental justice must take into account the decision-making context from
which the dispute arises. In the present appeals, the context includes the
inquisitorial procedural model established for hearings of the RPD. A
consideration of context is as relevant for determining what constitutes
disqualifying bias as for determining the extent of a person’s right to
participate in the decision-making process: compare Newfoundland Telephone
Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1
S.C.R. 623 at 638 (common law duty of impartiality).
[19]
I
explained in Thamotharem (at paras. 45-48) why, in my opinion, Guideline
7 does not give rise to a reasonable apprehension of bias at common law. For
the same reasons, I would conclude that Guideline 7 does not infringe section 7
of the Charter by creating a reasonable apprehension of bias, whether
individual or institutional. The independence of RPD members is dealt with at
paras. 83-88 of the reasons in Thamotharem.
(ii) Costs
[20]
Costs are
not awarded in applications for judicial review or appeals brought under the Federal
Courts Immigration and Refugee Protection Rules, SOR/93-22, unless the
Court orders a costs award “for special reasons”: rule 22. In my opinion,
“special reasons” do not exist in this case.
[21]
First, no
undue delays in the conduct of the litigation, or any other errors or
misconduct, are attributable to the Minister. Second, while the appellants’
challenge to the validity of Guideline 7 raises issues which may affect the RPD’s
conduct of refugee hearings across the country, the disposition of the appeals
is based on the application of familiar existing legal principles. Third, although
the consolidation of the proceedings and the unusual procedural step of
bifurcating the Guideline 7 issues from the others may have given rise to a
degree of complexity in the management of the litigation, they do not warrant
the exercise of the Court’s residual discretion to award costs in immigration
and refugee proceedings.
[22]
Finally, I
note that costs were not awarded by the Federal Court, and seem not to have
been requested. On appeal, costs were specifically requested in only two of the
memoranda of fact and law.
2. Non-Guideline 7 Issues
[23]
None of
the non-Guideline 7 questions raised in the consolidated appeals was certified
by the Applications Judge pursuant to IRPA, paragraph 74(d). This Court
was not satisfied that there was merit in any of them, and did not find it necessary
to call on counsel for the Minister to reply at the hearing. Nonetheless, I
shall deal briefly in these reasons with the arguments made in the appeals which
raised non-Guideline 7 issues.
(i) Benitez (A-164-06)
[24]
In a
decision rendered on November 9, 2004, the RPD rejected Mr Benitez’ claim, on
the ground that there was no credible evidence that he would be the subject of
persecution if returned to Colombia. In particular, the RPD was
concerned about unexplained discrepancies on significant factual issues between
Mr Benitez’ Personal Information Form and his oral testimony. Dismissing Mr
Benitez’ application for judicial review, Justice Gibson of the Federal Court
held that the RPD’s finding of non-credibility was not patently unreasonable: Benitez
v. Canada (Minister of Citizenship and
Immigration),
2006 FC 391.
[25]
In my
view, there is no basis for disturbing Justice Gibson’s decision. Findings of
fact are peculiarly within the expertise of the RPD, whether the finding is
based on the claimant’s demeanour when testifying or on the way in which the
claimant answered questions at the hearing, or on the implausibility of the
evidence, which is typically an inference of fact. I would dismiss this appeal.
(ii) Guirguis (A-198-06)
[26]
In a
decision rendered on January 10, 2005, the RPD rejected the claims of members
of the Guirguis family, who are Coptic Christians and citizens of Egypt. The RPD found that there was
insufficient trustworthy or credible evidence to discharge the claimants’
burden of proving a well founded fear that, if returned to Egypt, they would be persecuted on the ground
of religion.
[27]
Of the
incidents on which the claimants based their claim, the RPD said that one was
isolated, and that the evidence respecting the others was speculative, vague,
and unsupported by independent evidence, such as medical or police reports. In
addition, the RPD found the principal claimant to be evasive in her answers to
questions, and other aspects of the claimants’ story to be implausible.
[28]
Justice
Gibson dismissed the appellants’ applications for judicial review, on the
ground that the RPD’s findings of fact were not patently unreasonable and the
decision was not otherwise vitiated by reviewable error: Guirguis v. Canada (Minister of Citizenship and
Immigration),
2006 FC 413. Justice Gibson emphasized that fact-finding is at the heart of the
RPD’s specialized expertise and that its reasons do not have to deal with every
item of evidence adduced by a claimant.
[29]
On appeal,
counsel attempted, in effect, to persuade us to substitute our view of the
evidence for that of the RPD. This is not the role either of the Federal Court
on an application for judicial review, or of this Court on an appeal from an
Applications Judge. I would dismiss the appeal.
(iii) Gyankoma (A-199-06)
[30]
Counsel
for the appellant, Afua Gyankoma, sought to raise several non-Guideline 7
issues which he had not raised before the Federal Court. The only decision
rendered by the Federal Court on Ms Gyankoma’s application for judicial review
related to the validity of Guideline 7. When asked why he was raising other issues
for the first time in this Court, counsel could only say that perhaps he had
made a “tactical error” in not raising them below.
[31]
An
appellant may not normally raise issues for the first time on an appeal, because
that would put the appellate court in the position of having to decide an issue
without the benefit of the opinion of the lower court. The role of an appellate
court is generally confined to examining the decision of the court below for
reversible error.
[32]
There are,
however, exceptions. For example, in Stumf v. Canada (Minister of Citizenship and
Immigration),
2002 FCA 148, this Court set aside a refusal by the Convention Refugee Determination
Division (as it then was) (“CRDD”) to re-open an abandonment decision, on the
ground that a designated representative should have been appointed for one of
the refugee claimants, a minor. This issue had not been raised before either
the CRDD, or the Federal Court on the application for judicial review. Speaking
for this Court, Sharlow J.A. said (at para. 5):
We have determined that it is appropriate
to consider this issue at this stage, despite the fact that it has not been
raised before. The record discloses all the relevant facts, and there is no
suggestion that the Minister could be prejudiced if this issue is considered.
On the other hand, the designation of a representative in this case could have
affected the outcome.
[33]
It is
essential for the protection of minors, and for ensuring the fairness of the
hearing, that those determining refuge protection claims discharge their statutory
duty to consider the appointment of a person to represent the interests of a
minor child: see now IRPA, subsection 167(2). The CRDD in Stumf had
clearly failed to discharge its duty in this respect.
[34]
No
comparable reasons exist in the present case for permitting counsel to raise
non-Guideline 7 issues for the first time in this Court, which he could and
should have raised in the Federal Court. I would dismiss the appeal.
(iv) Matheen (A-200-06)
[35]
Counsel for
Inthikhab Hussain Matheen was unable to appear at the hearing of the appeal.
However, on counsel’s behalf, another lawyer directed the Court to the paragraphs
of counsel’s memorandum of fact and law which, she indicated, counsel regarded
as particularly important. Although these did not include the paragraphs
dealing with the non-Guideline 7 issues, I shall, nonetheless, address them
briefly on the basis of the parties’ written submissions.
[36]
In a
decision rendered on March 16, 2005, the RPD rejected Mr Matheen’s claim for
refugee protection, on the ground that he had provided no credible evidence to
prove that he had a well founded fear of persecution if returned to Sri Lanka. The RPD concluded that Mr
Matheen had fabricated the incidents on which he based his claim, because of the
evasive and contradictory nature of the appellant’s testimony on critical
issues, and the absence of supporting documentary evidence which could and
should have been adduced.
[37]
Applying the
patent unreasonableness standard of review, Justice Gibson found that there was
ample evidence to support the Board’s findings of fact, and dismissed Mr
Matheen’s application for judicial review: Matheen v. Canada (Minister of Citizenship and
Immigration),
2006 FC 395. I see no reason for interfering with Justice Gibson’s decision,
and would dismiss the appeal.
C. CONCLUSIONS
[38]
For these
reasons, I would dismiss all the appeals, on both the Guideline 7 issue and the
non-Guideline 7 issues. A copy of these reasons should be inserted in each of
the files consolidated in these appeals. I would answer as follows the
questions certified by Justice Mosley in connection with the validity of
Guideline 7:
1. Does Guideline 7, issued
under the authority of the Chairperson of the Immigration and Refugee Board,
violate the principles of fundamental justice under section 7 of the Canadian
Charter of Rights and Freedoms by unduly interfering with claimants’ right
to be heard and right to counsel?
Answer:
No.
2. Does the
implementation of paragraphs 19 and 23 of the Chairperson’s Guideline 7 violate
principles of natural justice?
Answer:
No.
3. Has the
implementation of Guideline 7 led to fettering of Refugee Protection Division
members’ discretion?
Answer:
No.
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? Answer: It is not necessary to answer this
question.
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?
Answer:
No.
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? Answer: No.
7. When
must an applicant raise an objection to Guideline 7 in order to be able to
raise it upon judicial review?
Answer:
It is not necessary to answer this question.
“John M. Evans
“I
agree.
Robert
Décary”
SHARLOW J.A. (Concurring)
[39]
I agree
with my colleague Justice Evans that the appeals from the decision of Justice
Mosley should be dismissed, and that none of the non-Guideline 7 issues raised
in Benitez (A-164-06), Guirguis (A-198-06), Gyankoma (A-199-06)
and Matheen (A-200-06) justify a reversal of the decision of Justice
Gibson.
[40]
As for the
certified questions, I would answer questions 1, 2, 3, 4, 5 and 7 as proposed
by Justice Evans. I would decline to answer question 6. For the reasons set out
in my concurring reasons in The Minister of Citizenship and Immigration v.
Daniel Thamotharem (A-38-06), it is my view that although the Chairperson
erred in law in using the guideline making power in paragraph 159(1)(h) of IRPA
to establish a standard practice for refugee hearings, that error does not by
itself justify setting aside a negative refugee determination made on the basis
of a hearing in which the refugee claimant is required to submit to questioning
by the RPO or the Member before presenting his or her own case.
“K. Sharlow”
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