IMM-677-95
BETWEEN:
THE EDMONTON JOURNAL AND DONALD RETSON
Applicants
- and -
THE IMMIGRATION AND REFUGEE BOARD,
CONVENTION REFUGEE DETERMINATION DIVISION, and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondents
IMM-510-95
BETWEEN:
THE EDMONTON JOURNAL AND DONALD RETSON
Applicants
- and -
THE IMMIGRATION AND REFUGEE BOARD,
CONVENTION REFUGEE DETERMINATION DIVISION, and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondents
REASONS FOR ORDER AND ORDER
JEROME, A.C.J.:
This motion by the applicants to certify a question pursuant to section 83(1) of the Immigration Act and for an extension of time, came on for hearing at Ottawa on October 4, 1996 via video conference.
BACKGROUND
A claim for refugee status was made pursuant to the Immigration Act. Subsection 69(2) of the Act provides that a refugee hearing is to be held in camera unless an application is made to have it conducted in public. The applicant, Don Retson, a reporter with The Edmonton Journal, made such an application to the Convention Refugee Determination Division ("CRDD"). The refugee claimant opposed this application on the basis that a public hearing would endanger her life, liberty, or security. Pursuant to subsections 69(3) and 69(3.1) of the Act, the CRDD made Orders dated February 1, 1995 and March 14, 1995 which contained measures designed to ensure the confidentiality of the proceedings. The applicants sought judicial review of these Orders. In my decision of January 26, 1996, I dismissed the application for judicial review of the Orders of the CRDD made on February 1, 1995 and March 14, 1995.
ANALYSIS
Decisions of the Federal Court -- Trial Division in immigration matters may be appealed to the Federal Court of Appeal if at the time of judgment a question for appeal has been certified by the Trial Division. The applicants would like to have the following questions certified:
| 1. Did the C.R.D.D. exceed its jurisdiction by failing to act with procedural fairness and natural justice by making the orders of February 1, 1995 without first allowing the applicants an opportunity to present submissions and argument to the C.R.D.D.? |
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| 2. Did the C.R.D.D. exceed its jurisdiction by failing to act with procedural fairness and natural justice by making the order of February 1, 1995 without allowing the applicants full access to the transcripts and evidence of the earlier proceedings of the C.R.D.D.? |
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| (i) Should the applicants have the opportunity to test the evidence of the refugee applicant applying for a confidentiality order pursuant to subsection 69(3) and (3.1)? |
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| 3. Is it within the jurisdiction of the C.R.D.D. to issue a publication ban? |
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| 4. If the C.R.D.D. has the jurisdiction to issue a publication ban did it exceed its jurisdiction in these particular circumstances by infringing on the applicants' rights and freedoms as guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms in a manner not justifiable in a free and democratic society? |
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Subsection 83(1) of the Immigration Act governs the certification of questions for appeal:
| 83(1) A judgment of the Federal Court - Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court -Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question. |
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The phrase "serious questions of general importance" was interpreted by Mr. Justice Catzman of the Ontario High Court of Justice in Rankin v. McLeod, Young, Weir Ltd. et al.(1986), 57 O.R. (2d) 569. Catzman J. found that Rule 62.02(5)(b) of the Ontario Rules of Civil Procedure "contemplates issues of broad significance or general application that are felt to warrant resolution by a higher level of judicial authority" (supra at 575). The Federal Court of Appeal has relied on that reasoning and has added that the issue to be certified must also be determinative of the appeal (Canada (Minister of Citizenship and Immigration) v. Liyanagamage (1994), 176 N.R. 4).
Thus, the test for certification of questions in Immigration matters does not involve an assessment as to whether I consider my decision on the judicial review application to have been the correct one. Rather, I must consider whether "serious questions of general importance" exist. I am satisfied that this matter raises serious questions of general importance and that it is appropriate to certify the questions proposed by the applicants for consideration by the Federal Court of Appeal. The application for an extension of time is also allowed.
O T T A W A
November 8, 1996 "James A. Jerome"
A.C.J.
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