Docket: A-503-15
Citation:
2016 FCA 211
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CORAM:
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NADON J.A.
DAWSON J.A.
WEBB J.A.
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BETWEEN:
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Appellant
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and
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CAROLINA DEL
VALLE PARAMO DE GUTIERREZ and IVAN JESUS GUTIERREZ DOMINGUEZ
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Respondents
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REASONS
FOR JUDGMENT
DAWSON J.A.
[1]
Carolina Del Valle PARAMO DE GUTIERREZ and her
husband Ivan Jesus GUTIERREZ DOMINGUEZ (the respondents) are citizens of
Venezuela who lawfully entered Canada pursuant to study permits. While in
Canada they claimed refugee protection.
[2]
The Refugee Protection Division of the Immigration
and Refugee Board of Canada (RPD) denied their claims in a decision dated
October 31, 2014. An appeal from that decision was allowed by the Refugee
Appeal Division of the Immigration and Refugee Board of Canada (RAD) in a
decision dated April 8, 2015. The RAD returned the refugee claims to the RPD
for redetermination by a different member of the RPD “for
different reasons”.
[3]
The Minister of Citizenship and Immigration
(Minister) sought and obtained leave to file an application for judicial review
of the decision of the RAD. For reasons cited as 2015 FC 1198, a judge of the
Federal Court dismissed the application for judicial review. The judge
certified and stated two questions of general importance:
1. Does an officer have jurisdiction
and authority to examine a refugee claimant pursuant to subsection 15(1) of the
Immigration and Refugee Protection Act, SC 2001, c 27, after the claim
has been referred to the Refugee Protection Division for determination?
2. If a refugee claimant has
indicated on the Basis of Claim form or elsewhere that he or she has counsel of
record, is it a breach of procedural fairness for an officer to examine the
refugee claimant after the claim has been referred to the Refugee Protection
Division for determination without advising counsel of record of the proposed
examination and providing counsel an opportunity to attend?
[4]
This is an appeal from the judgment of the
Federal Court.
I.
Factual Background
[5]
The facts are fully developed in the reasons of
the Federal Court. The following brief statement of facts will situate the
certified questions within the factual matrix that gives rise to this appeal.
[6]
After completing “basis of claim” forms in which
the respondents claimed refugee protection, the respondents were interviewed by
an officer with what was then Citizenship and Immigration Canada (CIC). The
officer found the respondents were eligible to claim refugee protection and
referred their claims to the RPD. A hearing before the RPD was scheduled for
July 10, 2014.
[7]
On June 26, 2014, a “hearing advisor” employed
by the Canada Border Services Agency (CBSA) required the respondents to attend
before him that day for an interview. The hearing advisor knew the respondents
were represented by counsel on their refugee claims. Notwithstanding, the hearing
advisor did not advise the respondents’ lawyer about the interview, nor did he
ask the respondents if they wished their counsel to be present at the
interview. The respondents went to the interview. They did not ask the hearing
advisor if their lawyer could attend with them. The interview proceeded in the
absence of counsel.
[8]
At the interview, the hearing advisor asked the respondents
questions about statements they made in their basis of claim forms.
[9]
Four days later, on June 30, 2014 a notice of
intention to intervene in the respondents’ refugee claims was filed on behalf
of the Minister of Public Safety and Emergency Preparedness (Minister of Public
Safety). The intervention was confined to filing documents: two solemn
declarations made by the hearing advisor and two documents prepared by third
parties relating to country conditions in Venezuela. In the first solemn
declaration the hearing advisor gave evidence about what transpired at the June
26, 2014 interview, including what questions were asked of the respondents and
what answers they gave. In the second solemn declaration the hearing advisor
gave evidence about advice he received from the translator who accompanied him
at the interview about the content of certain email messages that the
respondents showed the hearing advisor during the interview. The hearing
advisor also gave evidence about information he received from the Canadian school
the respondents had planned on attending.
[10]
At the hearing before the RPD, counsel for the
respondents applied to exclude from evidence the two solemn declarations.
Counsel for the respondents made two submissions to the RPD. First, she
submitted that the hearing advisor lacked jurisdiction to conduct the
interview. Second, she submitted that because the hearing advisor had failed to
notify her about the interview admitting the solemn declarations would breach
the respondents’ right to counsel and therefore their right to procedural
fairness.
II.
The Decision of the RPD
[11]
The RPD rejected the submissions of counsel for
the respondents and received the two solemn declarations into evidence.
[12]
On the issue of the jurisdiction of the hearing
advisor to conduct the June 26, 2014 interview, the RPD reasoned that:
•
Section 28 of the Immigration and Refugee
Protection Regulations, S.O.R. /2002-227 (Regulations) provides that a
person makes an “application” when, among other things, they make a claim for
refugee protection. Sections 15 and 16 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (Act) authorize an officer to examine a
person who makes an application at an interview at which the person making the
application is required to answer questions (reasons, at paragraph 10).
•
Section 37 of the Regulations stipulates when, in
certain circumstances, an examination ends. It does not specify when an
examination of a person who makes a refugee claim ends (reasons, at paragraph
11).
•
The Act envisions that the Minister of Public
Safety has a role through the entire refugee determination process. Thus, the
Minister of Public Safety may intervene in a refugee claim as a party to the
proceeding pursuant to section 170 of the Act (reasons, at paragraph 12).
•
Counsel for the respondents argued that the Minister’s
authority to conduct an interview of a refugee claimant pursuant to sections 15
and 16 of the Act ends upon the Minister’s determination that the claimant is
eligible to have their refugee claim heard by the RPD. Subsection 100(1) of the
Act requires the determination of eligibility to be made within three working
days of receipt of the refugee claim. In the view of the RPD, limiting the
scope of sections 15 and 16 of the Act in the manner suggested by counsel for
the respondents would be inconsistent with the objectives of the Act as set out
in paragraphs 3(2)(g) and (h) of the Act. The RPD reasoned that,
on the respondents’ interpretation, in a situation where information came to
the attention of the Minister, suggesting that a claimant had been involved in,
for example, a serious crime, the Minister would be prevented from questioning
the claimant until either an admissibility hearing or the refugee protection
hearing. This in turn would prevent the Minister from obtaining additional
evidence through other investigative measures that might become apparent only
after an interview of the claimant was conducted (reasons, at paragraph 13).
•
In consequence, and in the absence of any
specific statutory provision outlining when the examination of a person making
a refugee claim ends, the RPD found that on the plain meaning of subsection 28(d)
of the Regulations a person making a refugee claim is no longer under an
examination when their claim has been decided. It followed that the Minister
was authorized to conduct the June 26, 2014 interview of the respondents
(reasons, at paragraph 14).
[13]
On the issue of the right to counsel, the RPD
reasoned that:
•
Notwithstanding the submissions of counsel for
the respondents, section 10(b) of the Canadian Charter of Rights and
Freedoms had no application because the respondents were not arrested or
detained when they were interviewed (reasons, at paragraph 17).
•
Relying upon the decision of the Supreme Court
in Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1
S.C.R. 1053, the respondents’ rights guaranteed under section 7 of the Charter
did not require that they be provided with counsel at the interview stage (reasons,
at paragraphs 19 and 20).
•
This was because the interview conducted by the
hearing advisor was more analogous to routine information-gathering, as opposed
to an inquiry or decision-making process. Nothing prevented the claimants from
having counsel attend the interview with them; they chose not to request this
or to make arrangements for their counsel to be present. There was no
obligation for the hearing advisor to notify counsel that the interview was
scheduled to occur (reasons, at paragraph 20).
[14]
The RPD went on to dismiss the claims for
refugee protection. It found that the respondents were not credible witnesses.
The RPD also found that the incidents the respondents suffered in Venezuela
were not a result of their opposition to the government of Venezuela. The
country condition documentation did not establish that the government of
Venezuela had either the ability or the motivation to mobilize armed bands of
criminals to track down any person in the country who either signed a petition
or voted against the government (reasons, at paragraphs 30, 39 and 40).
III.
The Decision of the RAD
[15]
The RAD concluded that the solemn declarations
ought to have been excluded from evidence by the RPD because the failure of the
hearing advisor to advise the respondents’ counsel about the scheduled
interview breached principles of natural justice and fairness. Any and all
communications related to the respondents’ refugee claims, including the requirement
that they attend at an interview, should have included the respondents’ counsel
(reasons, at paragraphs 18 and 19).
[16]
In the view of the RAD, it was obliged to rely
on the evidence gathered in the course of the hearing before the RPD. This
evidence was inextricably linked to the contents of the solemn declarations. It
followed that to use the evidence tendered before the RPD would perpetuate the
breach of procedural fairness. Accordingly, the appropriate remedy was to refer
the refugee claims back to the RPD for redetermination by a different member
for different reasons (reasons, at paragraphs 22 and 28).
[17]
The RAD declined to make findings about the
scope of authority for continued investigation by the CBSA after a refugee
claim is referred to the RPD for determination (reasons, at paragraph 24).
IV.
The Decision of the Federal Court
[18]
After setting out the facts that led to the
application for judicial review, the Federal Court turned to the issues before
it. Although the RAD had not addressed the issue of the authority of an officer
of the CBSA to interview the respondents, the Federal Court decided to address
the issue because the issue would need to be addressed if the decision of the
RAD was set aside on the basis of the right to counsel issue (reasons, at
paragraph 16).
[19]
The Federal Court then accepted the submission
of counsel for the respondents that the evidence did not support the suggestion
that the Minister had any security or criminality concerns. The Federal Court
noted that the questions posed by the hearing advisor during the interview were
connected to the facts asserted by the respondents as the basis of their claims
for refugee protection. This raised the question of why an officer employed by
the CBSA, not an officer employed by CIC, conducted the interview (reasons, at
paragraph 18).
[20]
The Federal Court then turned to the issue of
the standard of review. It accepted the Minister’s submission that the decision
of the RAD to exclude the evidence of the June 26, 2014 interview was subject
to review on the correctness standard. This was because the decision was based
upon principles of fairness and natural justice (reasons, at paragraph 21).
[21]
With respect to the second issue, the Federal
Court did not “necessarily agree that the
interpretation of the legislative provisions, dealing with the jurisdiction of
an officer to interview a refugee claimant, are not questions of law of general
importance; however, it is irrelevant which standard applies because I have
determined that there is only one reasonable interpretation of the relevant
legislative provisions, and it is not that found by the RPD” (reasons,
at paragraph 22).
[22]
On this issue, the Federal Court found that the “RPD was clearly considering the jurisdictional issue in a
much broader context than the application before it” because neither of
the objectives found in paragraphs 3(2)(g) and (h) of the Act
were engaged on the facts of this case (reasons, at paragraph 32). The Federal
Court found that the RPD’s interpretation of the Act was “unreasonable and frankly incorrect” (reasons, at
paragraph 33). On a purposive reading of subsection 15(1) of the Act, “an officer’s jurisdiction to examine an individual ends once
the claim has been referred to the RPD” (reasons, at paragraph 33). The
matter that gives rise to the right to interview a refugee claimant is the fact
that a claimant has made “‘an application to the
officer’ under subsection 15(1) of the Act” (emphasis in original).
Once an officer completes the examination of a refugee claimant and determined
that the claimant is eligible to make a refugee claim, the officer has
fulfilled his or her statutory obligations. The claimant’s application is then no
longer before the officer, and the officer has no continuing jurisdiction to
require the claimant to attend for other examinations (reasons, at paragraph
34). Any concerns about the security objectives of the Act are addressed by
subsection 16(2.1) of the Act (reasons, at paragraph 36).
[23]
On the issue of the respondents’ right to
counsel, the Federal Court agreed that this right does not arise during an
eligibility examination (reasons, at paragraph 39). However, the Federal Court
went on to find that language contained in subsection 167(1) of the Act, which
permits a person who is the subject of proceedings before any division of the
Immigration and Refugee Board to be represented by counsel, is “broad enough to encompass persons who are required to attend
pre-hearing interviews that are conducted for the purpose of gathering evidence
for a hearing”. The right to counsel could not be restricted to the
hearing itself (reasons, at paragraph 42). The Federal Court rejected the
conclusion of the RPD that the interview was a “routine
information gathering exercise”. In the view of the Federal Court
(reasons, at paragraph 45):
In this case, the information gathering
stage was over. The officer had already determined the correct procedure and
referred the Respondents’ claims to the RPD for determination. At that
point, the Respondents had a statutory right to retain counsel to represent
them in respect of their hearing. They took advantage of that right. The
right to retain counsel must include the right to have that counsel present
during any material aspect of the proceeding and that must include any part of
the proceeding that involves the gathering of information from the claimants
for the purposes of the proceeding. Accordingly, the right was breached by
the officer when he directed the Respondents to attend an interview for the
purpose of gathering evidence for the upcoming hearing, without informing the
Respondents’ counsel. That right was further breached when the RPD failed to
exclude from evidence documents pertaining to the June 26th Interview.
(emphasis added)
V.
The Issues
[24]
Two issues are raised on this appeal:
1.
Did the Federal Court err in finding that the
hearing advisor had no authority to examine the respondents after their claims
for refugee protection were found to be eligible and were forwarded to the RPD
for determination?
2.
Did the Federal Court err in finding that the
respondents had the right to have their counsel present at the interview?
VI.
Did the Federal Court err in finding that the
hearing advisor had no authority to examine the respondents after their claims
for refugee protection were found to be eligible and were forwarded to the RPD
for determination?
[25]
On judicial review, this Court is to determine
whether the Federal Court identified the appropriate standard of review and
applied it correctly (Agraira v. Canada (Public Safety and Emergency Preparedness),
2013 SCC 36, [2013] 2 S.C.R. 559, at paragraph 45).
[26]
In the present case, the Federal Court
determined that it was irrelevant which standard of review applied because it
found the decision of the RPD to be flawed even on the more deferential standard
of reasonableness. On this point, as noted above, the Federal Court did not “necessarily”
agree that the question of the hearing advisor’s authority to interview the
respondents was not a question of law of general importance.
[27]
In my view, the issue of the hearing advisor’s
authority is not a question of law of central importance to the legal system as
a whole. It is a question specific to the administrative regime for the
determination of refugee status.
[28]
Consequently, in my view, there is nothing to displace
the presumption that the deferential standard of reasonableness applies when a
decision-maker is interpreting the decision-maker’s own statute and where the
decision-maker has particular familiarity with the statute (Alberta
(Information and Privacy Commissioner) v. Alberta Teachers’ Association,
2011 SCC 61, [2011] 3 S.C.R. 654, at paragraph 30).
[29]
The question for this Court is therefore whether
the Federal Court applied the reasonableness standard properly when it found
there was only one reasonable interpretation of the relevant legislation, and
that interpretation was that the hearing advisor lacked the authority to
require the respondents to attend an interview after their refugee claims had
been referred to the RPD for determination.
[30]
The nub of the Federal Court’s criticism of the
decision of the RPD is found at paragraphs 33 and 34 of its reasons:
[33] In my opinion, this is an
unreasonable and frankly incorrect interpretation of the relevant statutory
provisions. The Member has ignored or read out a relevant part of subsection
15(1), which gives an officer jurisdiction to conduct an examination “if a
person makes an application to the officer in accordance with this Act”
[emphasis added]. The Member correctly found that “the Minister’s jurisdiction
to determine a refugee claim ends upon a determination of whether the claimant
is eligible to appear before the Division for a hearing.” On a purposive
interpretation of subsection 15(1), according to which the scope of the
legislative tools conferred by the Act is to be determined by reference to
their ultimate function, an officer’s jurisdiction to examine an individual
ends once the claim has been referred to the RPD.
[34] The RPD and the Applicant suggest
that an officer’s jurisdiction to examine a person continues as long as that
person is making a refugee claim. However, the fact that a person is making a
refugee claim is not what gives rise to the right to examine. What gives rise
to that right is the fact that a person has made “an application to the
officer” under subsection 15(1) of the Act, and is then required, pursuant
to subsection 16(1.1), to “appear for an examination” [emphasis added].
Once an officer has finished examining a person and has determined that person
to be eligible, the officer has fulfilled his or her statutory obligations. The
person’s application is no longer before the officer and therefore, in my view,
the officer has no continuing jurisdiction to require that person to attend for
other and additional examinations.
(emphasis in the original)
[31]
In my respectful view, in this analysis the
Federal Court failed to have regard to the fact that the RPD based its analysis
upon both sections 15 and 16 of the Act (RPD reasons, at paragraphs 6, 7, 8, 10
and 13).
[32]
Thus, the RPD began its analysis by noting that
a person makes an application when they make a claim for refugee protection
(subsection 28(d) of the Regulations). Thereafter, subsection 16(1.1) of the
Act authorizes “an officer” to request a person who has made an application appear
for an examination. Neither the Act nor the Regulations specify when the
application of a refugee claimant ends. The Act envisions that both the
Minister of Citizenship and Immigration and the Minister of Public Safety have
a role in the refugee determination process. Thus, the Minister of Citizenship
and Immigration can suspend a refugee claim in certain circumstances (section
103 of the Act) or re-determine eligibility (section 104 of the Act). The
Minister of Public Safety may present evidence, question witnesses and make
representations at a refugee hearing (subsection 170(e) of the Act).[1]
[33]
On the basis of this legislative scheme, the RPD
found that a refugee claimant’s application exists until the claimant’s claim
has been decided. It followed that pursuant to subsection 16(1.1) of the Act, the
Minister of Public Safety was authorized to conduct the interview, as was his
delegate.
[34]
The RPD went on to find this interpretation was
consistent with the objectives of the Act, particularly the objectives of
maintaining the security of Canadian society and denying access to Canada to
persons who are security risks or serious criminals (paragraphs 3(2)(g)
and (h) of the Act). To this I would add that this interpretation
furthers the objective of establishing fair and efficient procedures that
maintain the integrity of the refugee protection system (paragraph 3(2)(e)
of the Act).
[35]
In my view, the RPD construed the legislative
scheme as required by law: it read the relevant provisions in their entire
context and in their grammatical and ordinary sense harmoniously with the
scheme of the Act, the object of the Act and the intention of Parliament (Rizzo
& Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at paragraph 21).
[36]
The reasons of the RPD are transparent and
intelligible and fully justify the RPD’s interpretation of subsection 16(1.1)
of the Act. The outcome of the RPD’s decision is within the range of possible,
acceptable outcomes and is defensible in respect of the facts and the law. In
other words, the RPD’s interpretation of subsection 16(1.1) of the Act and the
scope of the hearing advisor’s authority to interview the respondents was
reasonable. The Federal Court erred by setting aside the decision of the RPD on
this point.
[37]
I now move to the next issue.
VII.
Did the Federal Court err in finding that the
respondents had the right to have their counsel present at the interview?
[38]
I will address at the outset two preliminary
issues.
[39]
First, I reject the appellant’s submission that
the Federal Court erred in law by certifying the second certified question. The
appellant asserts that the Federal Court did not determine whether there had
been a breach of procedural fairness and, in the absence of such a finding, it
was an error of law to certify the question. While the Federal Court did not
use the phrase “procedural fairness” in its
reasons, the Federal Court found that the hearing advisor breached the
respondents’ right to have counsel present at the interview. This finding is
sufficient to properly ground the certified question.
[40]
This said, the second preliminary issue relates
to the scope of the certified question, which I repeat for ease of reference:
If a refugee claimant has indicated on the
Basis of Claim form or elsewhere that he or she has counsel of record, is it a
breach of procedural fairness for an officer to examine the refugee claimant
after the claim has been referred to the Refugee Protection Division for
determination without advising counsel of record of the proposed examination
and providing counsel an opportunity to attend?
[41]
The content of the duty of fairness is fact
specific. Thus, in Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817, the majority wrote at paragraph 21:
… “the concept of procedural fairness is
eminently variable and its content is to be decided in the specific context of
each case”. All of the circumstances must be considered in order to determine
the content of the duty of procedural fairness: Knight, at pp. 682-83; Cardinal,
supra, at p. 654; Old St. Boniface Residents Assn. Inc. v. Winnipeg
(City), [1990] 3 S.C.R. 1170, per Sopinka J.
[42]
As a result, in the present case the Court must
instead answer the question of whether the duty of procedural fairness was
breached in the facts and circumstances of this case. This conclusion is
consistent with the decision of this Court in Ha v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 49, [2004] 3 F.C.R. 195, at
paragraphs 40-41, where the Court reformulated a certified question similar to
the one at issue on this appeal.
[43]
Having dealt with these preliminary issues I now
turn to consider the applicable standard of review to be applied to the
decision of the Federal Court on this issue.
[44]
The parties each submit that the decision of the
RAD to exclude evidence was a decision based upon the application of principles
of fairness and natural justice. As such, they submit that the issue should be
reviewed on the standard of correctness. I agree (Mission Institution v.
Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at paragraph 79; Netflix, Inc.
v. Society of Composers, Authors and Music Publishers of Canada, 2015 FCA
289, 480 N.R. 236, at paragraph 35.
[45]
To determine whether the Federal Court applied
the standard of correctness properly, it is helpful to recap the decisions of
both the RPD and the RAD.
[46]
According to the reasons of the RPD, the
respondents based their arguments on their right to counsel upon sections 7 and
10 of the Charter. The RPD rejected the submission based on section 10
of the Charter on the ground that the respondents were not under arrest
or detention when interviewed by the CBSA. The submission based on section 7 of
the Charter was rejected on the ground that in Dehghani the
Supreme Court found that the principles of fundamental justice do not require
that a refugee claimant be provided with counsel at the pre-inquiry or
pre-hearing phase of the refugee claim determination process. The RPD did not
consider the application of subsection 167(1) when it found the respondents
were not entitled to have counsel present at the interview.
[47]
This decision is to be contrasted with that of
the RAD which based its decision on the right to counsel in subsection 167(1)
of the Act, which provides:
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167 (1) A person who is the subject of proceedings before any
Division of the Board and the Minister may, at their own expense, be
represented by legal or other counsel.
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167 (1) L’intéressé qui fait l’objet de procédures devant une
section de la Commission ainsi que le ministre peuvent se faire représenter,
à leurs frais, par un conseiller juridique ou un autre conseil.
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[48]
Citing subsection 167(1) in a footnote, the RAD
reasoned at paragraph18:
I agree with the Appellants’ Counsel that
the CBSA June 26, 2014 interview evidence ought to have been excluded by the
RPD because of breach of natural justice and fairness in not communicating with
the Appellants’ Counsel about the interviews. The Appellants had Counsel of
Record from the time that the claims were submitted so any and all
communications related to the claims, including to attend an interview at the
CBSA, should have included the Appellants’ Counsel. It is well-established in
law and reflected throughout the immigration-related rules, that when an
individual has elected to have representation in a proceeding at the IRB and
has provided contact information for that representative, all subsequent
communications must be through and include that representative unless there are
indications that the representation is for limited purposes, which was not the
case in this claim. The requirement to communicate with Counsel was tacitly
conceded by the Minister in his response to initial objection by the
Appellants’ Counsel by indicating that there is a general ‘courtesy’ of
notifying counsel about CBSA interviews and that this courtesy would be extended
in any similar future event. The Minister’s representative attempted to
distinguish between courtesy and legal requirements but that position is
inconsistent with the legal principles regarding the nature of representation,
which is that the representative stands in the place of the person being
represented.
[49]
The Federal Court agreed with the RAD.
[50]
The Federal Court began its analysis by making
the important point that the interview in question was held for the purpose of
assessing the validity of the respondents’ refugee claims (reasons, at
paragraph 40). To this I would add another important point: the interview not
only led to the decision of the Minister of Public Safety to intervene in the
respondents’ refugee hearing as he was entitled to do pursuant to section 170
of the Act, but the interview also furnished most of the evidence tendered by
the Minister of Public Safety at the refugee hearing.
[51]
The Federal Court then rejected the submission
that subsection 167(1) conferred a right to counsel only at hearings before the
Board. This submission was rejected on the ground that it was too narrow an
interpretation of the Act. At paragraph 42 of its reasons the Federal Court
wrote:
… The subsection confers a right to counsel
on anyone who is “the subject of proceedings before…the Board.” This phrase is
broad enough to encompass persons who are required to attend pre-hearing
interviews that are conducted for the purpose of gathering evidence for a
hearing. It would severely impinge on the effectiveness of a refugee claimant’s
right to counsel if that right only allowed counsel to make submissions at a
hearing itself, and provided him or her with no opportunity to participate in
the fact-finding process upon which the hearing is based. Nothing in the Act
compels such a narrow interpretation.
[52]
I agree with the analysis of the Federal Court.
In my view, the Federal Court correctly interpreted the scope of subsection
167(1) to include the right to have counsel present at an interview held in
respect of a refugee claim. The failure of the hearing advisor to respect the
respondents’ right to counsel constituted a breach of procedural fairness.
[53]
It follows that I agree with the Federal Court
that the RAD did not err in returning the matter to the RPD for redetermination
without regard to the solemn declarations of the hearing advisor.
[54]
Before leaving this issue it is also important
to confirm that the Federal Court correctly distinguished the interview at
issue on this appeal from an interview conducted for another purpose. Thus, in
my view, a refugee claimant does not have a right to counsel at an interview
relating to their eligibility to claim refugee status (Dehghani, at page
1077).
VIII.
Conclusion
[55]
The Federal Court dismissed the application for
judicial review of the decision of the RAD. The consequence of this was that
the matter was to be referred back to the RPD so that it may redetermine the
matter without regard to the two solemn declarations. As I agree with this
disposition I would dismiss this appeal. It follows that the respondents’
refugee claims are remitted to the RPD for determination by a different member
in accordance with these reasons.
[56]
I would reformulate the certified questions and
answer them as follows:
Question: Does
a delegate of the Minister of Public Safety and Emergency Preparedness have
jurisdiction and authority to examine a refugee claimant pursuant to subsection
16(1.1) of the Immigration and Refugee Protection Act about his or her
refugee claim after the claim has been referred to the Refugee Protection
Division for determination?
Answer: Yes.
Question: If
a refugee claimant has indicated on the basis of claim form or elsewhere so
that it appears on the record of the Refugee Protection Division that the
claimant has counsel of record, is it a breach of subsection 167(1) of the Immigration
and Refugee Protection Act and a breach of procedural fairness for an
officer to examine the refugee claimant about their refugee claim after the
claim has been referred to the Refugee Protection Division for determination
without advising counsel of record of the proposed examination and providing
counsel an opportunity to attend?
Answer: Yes.
“Eleanor R. Dawson”
“I agree.
M. Nadon J.A.”
“I agree.
Wyman W. Webb J.A.”
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