Date: 20101117
Docket: IMM-1504-10
Citation: 2010 FC 1153
BETWEEN:
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IBRAHIM HASAN ALBARAHMEH
BASIMA AHMAD AHMAD
(a.k.a. BASIMA AHMAD AB AHMAD)
OMAR ALBARAHMEH
AEH ALBARAHMEH
(a.k.a. AEH IBRAHIM HAS AL-BRAHMEH)
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION AND
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
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Respondents
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REASONS
FOR JUDGMENT
PHELAN J.
I. INTRODUCTION
[1]
The
Immigration and Refugee Board (Board) rendered a decision on the merits of a
case before the case was concluded. This is a most unusual case – fortunately.
The Court and the parties have been unable to cite any similar cases in the
context of administrative hearings.
II. BACKGROUND
[2]
The
Applicants are a family of four; the male Applicant, his wife the female
Applicant, and their children who are citizens of Jordan. In a
decision dated March 3, 2010, the Board rejected all four Applicants’ claims
for refugee protection.
[3]
The
male Applicant, on his own, was excluded from consideration by virtue of
Article 1F(a) of the Convention because he was a member of the Jordanian Public
Security Directorate, an organization responsible for widespread and systematic
torture, mistreatment, arbitrary arrest, detention and murder.
1F. The provisions of this
Convention shall not apply to any person with respect to whom there are serious
reasons for considering that:
(a) he has committed a crime
against peace, a war crime, or a crime against humanity, as defined in the international
instruments drawn up to make provision in respect of such crimes;
The female Applicant, whose case was the
foundation for the family’s claim for refugee status and protection, failed to
rebut the presumption of state protection in respect to all four Applicants.
The Board’s final conclusion was:
Having found the claimants lack
credibility and that they have failed to rebut the presumption that states can
protect their citizens, I find that there is no crecible (sic) basis for
the claim.
[4]
The
critical problem with this decision is that the evidence and argument had not
been concluded. A further hearing was scheduled and, without notice to anyone,
the Board rendered its final decision part way through the process.
[5]
The
four claims (one for each Applicant) were joined for purposes of evidence and
argument.
[6]
The
hearing of these joined refugee claims was conducted on June 25, 2009 and October 23, 2009. A further
hearing date was required and the parties received a Notice to Appear setting
the date for the third hearing for 1 p.m. on December 23, 2009.
[7]
At
this point in the process the evidence on exclusion was complete and written
submissions on this exclusion issue had been filed. The female Applicant was
testifying as to the issue of inclusion of the four Applicants as refugees.
[8]
On
December 23, 2009, the parties were advised that due to the Member’s illness, that
day’s hearing was cancelled and a new hearing date would be set.
[9]
Without
any further word from the Board, the parties received the negative decision
dated March 3, 2010.
III. ANALYSIS
[10]
The
only real issue raised is whether the Applicants were denied procedural
fairness. The Respondent has conceded the point in respect to the female
Applicant and the two children. However, the Respondent maintains that the
refugee finding against the male Applicant can stand because the decision in
respect of the exclusion issue is reasonable and there was no unfairness in
respect to the portions of the hearing that dealt with that issue. Correspondingly,
the Respondent submits that the Court should sever the decision and conclude
that the exclusion finding can stand but that the inclusion finding can be
quashed.
[11]
As
this is an issue of natural justice/procedural fairness, the standard of review
is correctness (Dunsmuir v. New Brunswick, 2008 SCC 9). There is
no question that the Court may sever the decision under review and
uphold part of that decision as a matter of discretion. This is clear from the Federal
Courts Act and such decisions as Xie v. Canada (Minister of Citizenship
and Immigration), 2004 FCA 250 and Alvarez v. Canada (Minister of
Citizenship and Immigration), 2007 FC 321.
[12]
The
claims of the four Applicants were joined pursuant to Rule 49(1) of the Refugee
Protection Division Rules SOR/2002-228. The Board itself considered the family’s
refugee claim as a whole in respect to inclusion; thus the failure to complete
the hearing before rendering judgment is fatal to the totality of the inclusion
finding. The Respondent concedes as much in respect to some of the Applicants. However,
it is just as fatal an error to the inclusion issue for the male Applicant.
[13]
The
real issue is whether the Court should allow the exclusion issue to be severed
and allowed to stand. With some reluctance, I am of the view that it ought not
to be severed.
[14]
While
the evidence and submissions on exclusion were largely over, the Board remained
seized with the matter. There is nothing in the Certified Tribunal Record which
suggests that the matter was concluded with finality.
[15]
The
male Applicant contends that he did not think that the case was closed – not a
startling position. Of significance is the fact that Minister’s counsel did not
think that the exclusion issue was necessarily concluded, either.
[16]
The
Minister’s counsel, who was present at the hearing to deal with the exclusion
issue, left at the beginning of the inclusion part of the case with the caution
to the Board that he was to be called back if anything related to exclusion
arose.
[17]
There
is no question that the parties legitimately expected that a new hearing date,
following the December 23 cancellation, would be set and would then occur. The
procedural fairness raised is that of “legitimate expectation”, the principles
of which have been expressed as follows:
19 The issue
raised by the first question can be disposed of rapidly. Section 190 of the
IRPA is clear and unambiguous. It provides that if an application is pending or
in progress on June 28, 2002, the IRPA applies without condition. The doctrine
of legitimate expectations is a procedural doctrine which has its source in
common law. As such it does not create substantive rights and cannot be used to
counter Parliament's clearly expressed intent (Canada
(Minister of Employment and Immigration) v. Lidder, [1992] 2 F.C. 621
(C.A.), at pages 624, 625 and 632).
dela Fuente v. Canada (Minister of Citizenship and
Immigration) (F.C.A.),
2006 FCA 186
26 Fourth,
the legitimate expectations of the person challenging the decision may also
determine what procedures the duty of fairness requires in given circumstances.
Our Court has held that, in Canada, this doctrine is part of the doctrine of
fairness or natural justice, and that it does not create substantive rights: Old
St. Boniface, supra, at p. 1204; Reference re Canada Assistance
Plan (B.C.), [1991] 2 S.C.R. 525, at p. 557. As applied in Canada, if a legitimate expectation
is found to exist, this will affect the content of the duty of fairness owed to
the individual or individuals affected by the decision. If the claimant has a
legitimate expectation that a certain procedure will be followed, this
procedure will be required by the duty of fairness: Qi v. Canada (Minister of Citizenship and
Immigration)
(1995), 33 Imm. L.R. (2d) 57 (F.C.T.D.); Mercier-Néron v. Canada (Minister of National Health
and Welfare)
(1995), 98 F.T.R. 36; Bendahmane v. Canada (Minister of Employment and
Immigration), [1989] 3 F.C. 16 (C.A.).
Similarly, if a claimant has a legitimate expectation that a certain result
will be reached in his or her case, fairness may require more extensive
procedural rights than would otherwise be accorded: D. J. Mullan, Administrative
Law (3rd ed. 1996), at pp. 214-15; D. Shapiro, "Legitimate Expectation
and its Application to Canadian Immigration Law" (1992), 8 J.L. &
Social Pol'y 282, at p. 297; Canada (Attorney General) v. Human Rights
Tribunal Panel (Canada) (1994), 76 F.T.R. 1. Nevertheless, the doctrine of
legitimate expectations cannot lead to substantive rights outside the
procedural domain. This doctrine, as applied in Canada, is based on the principle that the "circumstances"
affecting procedural fairness take into account the promises or regular
practices of administrative decision-makers, and that it will generally be
unfair for them to act in contravention of representations as to procedure, or
to backtrack on substantive promises without according significant procedural
rights.
Baker
v. Canada (Minister of Citizenship and
Immigration), [1999] 2
S.C.R. 817
123 The
interests underlying the legitimate expectations doctrine are the
non-discriminatory application in public administration of the procedural norms
established by past practice or published guidelines, and the protection of the
individual from an abuse of power through the breach of an undertaking. These
are among the traditional core concerns of public law. They are also essential
elements of good public administration. In these circumstances, consultation
ceases to be a matter only of political process, and hence beyond the purview
of the law, but enters the domain of judicial review.
Apotex
Inc. v. Canada (Attorney General), [2000] 4 F.C. 264
[18]
The
male Applicant had a legitimate expectation that no decision would be made
until all the evidence was in, on all issues.
[19]
The
right to procedural fairness is not a right to form over substance and there
are times when a court will excuse a procedural fairness error (Mobil Oil
Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1
S.C.R. 202). This is not one of those times.
[20]
There
was the potential that matters could arise in the third hearing which would
affect the exclusion analysis. The Minister’s counsel even contemplated that
possibility, yet the Board’s actions precluded that possibility from ever being
able to occur. Therefore, there is substance to the procedural fairness issue
foreclosed.
[21]
Further,
the Court cannot accept that the Member intended to render the decision on a
partial record. It must have been an error and since it did not reflect the
Board’s true intent (even if the Board intended the exclusion result), the
decision ought not to stand. The administration of justice requires that
decisions be complete and express the true and whole intent of the decision
maker.
[22]
Lastly,
more harm would be done to the parties, the administration and the public if a
decision rendered in such a flawed manner is allowed to stand than if the
matter is subject to a new determination by a new member. The facts will not
change, the actions of the Jordanian Public Security Directorate and the male
Applicant’s involvement are largely substantiated. Perspectives and arguments
may change but it is preferable, in the interests of justice, to have the whole
of the truth exposed than to allow a flawed decision to stand.
IV. CONCLUSION
[23]
Therefore,
this judicial review will be allowed, the Board’s decision will be quashed in
its entirety and the matter remitted for a new determination before another
panel which can accept as evidence of exclusion the evidence received in the
earlier proceeding with leave to admit further evidence and argument as the
panel determines.
[24]
The
parties shall have seven (7) days from the date of these Reasons to file
submissions on a certified question.
“Michael
L. Phelan”
Ottawa,
Ontario
November
17, 2010
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