Canadian Association of Refugee Lawyers v. Canada (Citizenship and Immigration)

Canadian Association of Refugee Lawyers v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2019-09-04
Neutral citation
2019 FC 1126
File numbers
IMM-3373-18, IMM-3433-17
Notes
Reported Decision
A correction was made on September 23, 2020.
Decision Content
Date: 20190904
Dockets: IMM-3433-17
IMM-3373-18
Citation: 2019 FC 1126
Ottawa, Ontario, September 4, 2019
PRESENT: THE CHIEF JUSTICE
Docket: IMM-3433-17
BETWEEN:
CANADIAN ASSOCIATION OF REFUGEE LAWYERS
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
and
IMMIGRATION AND REFUGEE BOARD
Intervener
Docket: IMM‑3373-18
AND BETWEEN:
CANADIAN ASSOCIATION OF REFUGEE LAWYERS
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. Introduction
[1] As far as factual determinations are concerned, the principle that “s/he who hears must decide” is sacrosanct. It is a fundamental pillar of the rule of law. It cannot be sacrificed on the altar of achieving greater consistency and efficiency in administrative decision-making.
[2] Decision-makers on quasi-judicial bodies such as the Immigration and Refugee Board of Canada [the Board] must be able to exercise their adjudicative functions independently from improper influence. Such influence can include establishing an expectation that Board members will adopt factual conclusions set forth in a jurisprudential guide [JG] issued by the Chairperson of the Board unless they explain why such conclusions have not been followed. Important factors to consider in assessing whether a JG is likely to improperly influence members of the Board include the nature of the language establishing the expectation, whether it is made clear that each case must be adjudicated on the basis of its specific facts, the extent of monitoring of compliance, and whether a reasonable apprehension arises that adverse consequences would likely result if the JG were not followed.
[3] Among other things, the imposition of an expectation to adopt factual determinations in a JG would fetter Board members’ discretion by reducing their freedom to reach different factual conclusions in the absence of providing a justification for why they have done so. It would also undermine their independence and their perceived impartiality. This is because it would give rise to a reasonable apprehension that the Board’s members are not entirely free to reach their own factual conclusions, according to their own conscience, without influence from the Chairperson. In addition, it would increase the burden on the party who would otherwise simply have to demonstrate why a different factual conclusion should be reached, without having to also establish why a departure from the JG is justified.
[4] However, a Board JG that simply required or encouraged decision-makers to take account of particular objectively reported facts, legal principles, or factors to consider in deciding issues of law or mixed fact and law would not pose these problems. That is to say, they would not unlawfully fetter Board members’ discretion, improperly encroach upon their adjudicative independence, or reduce their perceived impartiality, so long as it is made clear that Board members remain free to reach their own conclusions.
[5] Similarly, a Board JG that merely requires or encourages decision-makers to follow a general assessment framework or approach would not improperly fetter Board members’ discretion or improperly encroach upon their adjudicative independence, so long as it is made clear that Board members remain free to reach their own conclusions.
[6] The four JGs at issue in this proceeding, pertaining to the assessment of refugee claims by nationals of Nigeria, Pakistan, China and India, were validly enacted pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. That provision authorizes the Chairperson to identify decisions of the Board as JGs, after consulting with the Board’s Deputy Chairpersons, to assist members in carrying out their duties. Contrary to the position of the Canadian Association of Refugee Lawyers [CARL], paragraph 159(1)(h) authorizes the Chairperson to issue JGs not just on issues of law and mixed fact and law, but also on issues of fact. Moreover, external consultation prior to the issuance of the JGs was not required.
[7] The Nigeria JG does not unlawfully fetter Board decision-makers’ discretion or improperly encroach upon their adjudicative independence because it repeatedly refers to the need for each case to be adjudicated on the basis of its particular facts. For the same reason, it does not unfairly increase the burden faced by refugee applicants in establishing their claims. Contrary to CARL’s submissions, the Nigeria JG was not improperly “pre-selected.”
[8] With respect to the remaining impugned JGs, the factual matters they address can be grouped into three categories: First, facts that are specific to the particular claimant and that were adduced in his or her evidence; second, facts that are characterized as having been reported in the country documentation or Responses to Information Requests [RIRs]; and third, facts that are presented as the Refugee Appeal Division [RAD]’s own findings, on issues that go beyond the evidence that was specific to the claimant or claimants in question. The only unlawful fettering of discretion or improper interference with Board members’ adjudicative independence is with respect to the third category.
[9] This unlawful fettering or improper interference results from a statement made in each of the policy notes that accompanied the identification of the decisions in question as JGs. That statement states that members of the Board’s Refugee Protection Division [RPD] and Refugee Appeal Division “are expected to apply Jurisprudential Guides in cases with similar facts or provide reasoned justifications for not doing so.” A similar statement was made in the Board’s Policy on the Use of Jurisprudential Guides and in e-mails the Chairperson and the Deputy Chairperson (RPD) sent to the Board’s members at the time three of the JGs were released.
[10] Alternative language that did not include a similar statement and that explicitly left RPD and RAD members completely free to reach their own conclusions on issues of fact would not unlawfully fetter their discretion or improperly interfere with their independence. This is so even if Board members were encouraged to explain why they have reached different factual conclusions in cases with similar facts.
[11] Although some aspects of the principles of natural justice may be displaced where legislation expressly or by necessary implication ousts their application, paragraph 159(1)(h) does not contain such language in respect of factual determinations that Board members may make. Indeed, subsection 162(2) of the IRPA makes it clear that each division of the Board should operate in accordance with the principles of fairness and natural justice.
[12] However, in authorizing the Chairperson to issue JGs, Parliament implicitly gave the Chairperson the authority to draw Board members’ attention to certain matters, and even to encourage them to consider such matters. These include factors to be taken into account in making decisions, relevant legal principles, and facts that are reported in objective sources, such as country documentation or RIRs.
[13] One unavoidable consequence of this is that the evidentiary burden faced by claimants in establishing their case may be easier or more difficult to meet than it would have been if such factors, principles, or facts did not need to be addressed. This impact on the burden faced by claimants is not unfair. It also does not improperly interfere with the presumption established by Maldonado v Minister of Employment and Immigration (1979), [1980] 2 FC 302, 31 NR 34 [Maldonado] and its progeny that a refugee claimant’s sworn testimony is truthful.
[14] The rationale underlying this presumption of truthfulness is that claimants for refugee protection who have come from certain types of exigent circumstances cannot reasonably be expected to have documentation or other evidence to corroborate their claims. Such circumstances can include refugee camps, war-torn country conditions, and situations in which the claimant only had a brief window of opportunity in which to escape their persecutor(s) and cannot subsequently access documents or other evidence from Canada.
[15] However, in cases where a claimant for refugee protection appears to have had opportunities to gather corroboration for his/her claim, either before or after arriving in Canada, the strength of the presumption of truthfulness varies directly with the extent to which such corroboration is provided. Where the claimant simply gives a bald, unsupported assertion that strains credulity when considered together with objective information in the Board’s National Documentation Package [NDP] or RIR documentation, the strength of the presumption of truthfulness is relatively weak and may be displaced by that objective information. Indeed, it may also be displaced by a failure to reasonably explain an omission to provide corroboration for such assertions.
[16] Maintaining the presumption of truthfulness in circumstances where a bald or thinly supported assertion strains credulity in the face of objective factual information referenced in a JG would weaken the integrity of Canada’s immigration system and undermine public confidence in that system. The Court, and indeed the bar and interested organizations such as CARL, have an important role to play in maintaining and cultivating that public confidence.
II. Background
[17] These two applications each concern a decision by the Chairperson to designate one or more Board decisions as a JG. IMM-3433-17 concerns the decision to designate RAD decisions pertaining to Pakistan, China, and India, respectively, as JGs. IMM-3373-18 concerns a similar designation in respect of a RAD decision pertaining to Nigeria.
[18] CARL challenges the legality of the four JGs on the following grounds:
Paragraph 159(1)(h) does not authorize the Chairperson to issue a JG with respect to issues of fact;
The JGs unlawfully fetter Board members’ discretion and improperly encroach upon their adjudicative independence;
The JGs unfairly enhance the burden of proof on claimants for refugee protection; and
The JGs were issued without any external consultation.
[19] In addition, CARL challenges the legality of the Nigeria JG on the basis that the Chairperson improperly pre-selected the decision that became the JG.
[20] The JG with respect to Nigeria was issued to address the issue of the availability of an internal flight alternative [IFA] within that country for refugee applicants who have come from there. For that reason, the JG only consisted of paragraphs 13–30 of the decision in question. The JG concluded that an IFA was available to the refugee applicant in that case, in two particular cities. It added that “there are several additional cities in Nigeria where, depending on the individual facts, an IFA would likely be available to those fleeing non-state actors, such as the Appellant.” That JG was issued after the RAD’s Professional Development and Adjudicative Strategy Committee [the Committee] identified a high volume of claims and appeals from Nigeria in which the determinative issue was either credibility or the availability of an IFA. The Committee considered that it would be helpful to focus the analysis solely on the latter issue, to reduce both the length of hearings and the time spent writing or rendering oral reasons for decision.
[21] The JG with respect to Pakistan was identified with respect to the issues of whether (i) the treatment experienced by persons of Ahmadi ethnicity amounted to persecution, (ii) adequate state protection is available to such persons, and (iii) such persons have a viable IFA within that country. That JG was issued after the Committee noticed that a number of RPD decisions had failed to properly analyse state protection and IFAs for Ahmadi claimants from Pakistan. The conclusions in the JG were favourable to the refugee claimant in that case in respect of both of those issues, as well as in relation to the issue of persecution.
[22] The JG with respect to India was issued with respect to the issue of whether Sikh refugee claimants from Punjab have a viable IFA. Once again, the Committee’s objective in recommending the issuance of the JG was to reduce the time required for RPD hearings and to reduce the time required to draft RPD and RAD decisions. The JG concluded that the refugee claimants in question had a viable IFA in Delhi or Mumbai.
[23] The China JG was issued to promote consistency and to provide guidance to RPD and RAD members in respect of a matter that had given rise to a divergence in the jurisprudence of both the Board and this Court. In particular, it was issued to address the issue of whether persons alleging that they are wanted by Chinese authorities are likely to be able to exit that country from an airport using a genuine passport. As with the Nigeria JG, the China JG consisted of only certain paragraphs of the underlying decision, namely paragraphs 12–22 and 25–34. After reviewing a range of evidence pertaining to China’s Golden Shield Project, and observing that the refugee claimant had provided “scant” evidence with regard to how he was able to exit China, the JG concluded that he could not have left that country using his genuine passport and with the assistance of a smuggler, as he had claimed.
[24] At the time the Pakistan, China, and India JGs were issued, the Chairperson characterized those countries as “major source countries” for the Board and noted that the use of JGs was “essential if the IRB is to deal with the significant backlogs and growing intake we are facing today.” As noted above, the “high volume of claims” from Nigeria was also an important consideration underlying the identification of the JG in relation to that country.
[25] The JG pertaining to India was revoked as of November 30, 2018, as a result of developments in the Board’s country of origin information, in particular as it concerns the issue of the connectivity between police databases across India.
[26] The JG pertaining to China was revoked as of June 28, 2019, after the hearing of this Application, because it contained a finding of fact that was not supported by the Board’s National Documentation Package [NDP], in particular as it concerned facial recognition technology used on passengers departing from the airport in Beijing.
[27] The policy notes issued in respect of the two revoked JGs contained language stating that RPD and RAD members “are expected to apply [JGs] in cases with similar facts or provide reasoned justifications for not doing so.” The same language appears in the policy notes that were issued with the JGs pertaining to the remaining two JGs, which remain in force.
III. Relevant Legislation
[28] The Chairperson’s authority to issue JGs is set forth in paragraph 159(1)(h) of the IRPA. That provision states as follows:
Duties of Chairperson
Chairperson
159 (1) The Chairperson is, by virtue of holding that office, a member of each Division of the Board and is the chief executive officer of the Board. In that capacity, the Chairperson
Présidence de la Commission
Fonctions
159 (1) Le président est le premier dirigeant de la Commission ainsi que membre d’office des quatre sections; à ce titre :
[…]
[…]
(h) may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons, to assist members in carrying out their duties; and
h) après consultation des vice-présidents et en vue d’aider les commissaires dans l’exécution de leurs fonctions, il donne des directives écrites aux commissaires et précise les décisions de la Commission qui serviront de guide jurisprudentiel;
[…]
[…]
IV. Preliminary Issues
[29] Prior to the hearing of these Applications, three preliminary issues were raised. First, the Respondent maintained that CARL has no standing to bring the Applications. Second, the Respondent maintained that CARL’s challenge with respect to the two revoked JGs, pertaining to India and China, are now moot. Third, CARL sought disclosure of a draft of the Nigeria JG. During the hearing, CARL abandoned that request.
[30] For the record, I will note that CARL also abandoned its position that the JGs contravene s. 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, and s. 2(e) of the Canadian Bill of Rights, SC 1960, c 44. Accordingly, these abandoned issues will not be addressed in this decision.
A. CARL’s Standing
[31] In October 2017, the Respondent brought a Motion to strike CARL as a party from the proceedings in IMM-3433-17, and to consequently strike the proceedings in their entirety. In support of its request, it took the position that CARL is not a proper party to bring an application in respect of the JGs because it is not directly affected by them and does not meet the test for public interest standing.
[32] The following month, Prothonotary Aalto rejected the Respondent’s Motion.
[33] The Respondent did not appeal that decision at that time because paragraph 72(2)(e) of the IRPA states that no appeal lies from a decision of the Court with respect to either an application contemplated by that legislation or an interlocutory judgment. Although Rule 51(1) of the Federal Courts Rules, SOR/98-106 [the Rules] permits appeals of orders issued by prothonotaries, Rule 1.1(2) provides that in the event of any inconsistency between those Rules and an Act of Parliament or a regulation made under such an Act, that Act or regulation prevails to the extent of inconsistency.
[34] Notwithstanding the foregoing, the Respondent continues to maintain that CARL has no standing to bring the two Applications that are before the Court in this proceeding. In support of its position that an appeal of Prothonotary Aalto’s decision remains available, it makes two arguments.
[35] First, it maintains that it is an open question as to whether paragraph 74(d) of the IRPA would permit an interlocutory order to be appealed if a question for appeal was certified in the ultimate judgment pertaining to the related Application. Paragraph 74(d) permits an appeal of a judgment of the Court “if, in rendering judgment, the judge certifies that a serious question of general importance is involved and states the question.”
[36] In Edwards v Canada (Minister of Citizenship and Immigration), 2005 FCA 176, at para 10 [Edwards], the Federal Court of Appeal explicitly stated that an appeal of an interlocutory order is not possible even if a judge certifies a question. The Respondent acknowledges that ruling, but interprets it as having been directed to the situation where a judge purports to certify a question in rendering the interlocutory order, as opposed to in rendering a final judgment on the related application. The Respondent maintains that Edwards left open the possibility of an appeal of an interlocutory decision when a judge certifies a question in the latter type of decision.
[37] I disagree. After stating that an appeal would not be possible even if a judge had certified a question, the Court proceeded to address the very narrow range of situations in which an appeal may be made in respect of an interlocutory decision: Edwards, above at paragraph 11. It is readily apparent from that discussion that the Court was not intending to limit its preceding comments in the manner that the Respondent now contends.
[38] In my view, the logic of section 74 of the IRPA indicates that the appeal contemplated in paragraph 74(d) is an appeal of the judgment issued in respect of the application referenced in paragraphs 74(a) and (c), and contemplated by paragraph 74(b). Section 74 does not appear to contemplate interlocutory matters whatsoever. It simply addresses the fixing of a date and place for the hearing of an application, the necessity for that date to be no sooner than 30 days and no later than 90 days after leave was granted (absent an agreement on an earlier date), the disposition of the application without delay and in a summary way, and finally, the circumstances in which an appeal of the judgment can be made. I am reinforced in this view by the French version of paragraph 74(d), which refers to “le jugement consécutif au contrôle judiciare.” This makes it abundantly clear that the appeal contemplated by paragraph 74(d) is an appeal of the judgment on the application, and not an appeal of any interlocutory decision that may have been separately issued prior to the hearing of the application.
[39] I will simply add in passing that the Supreme Court of Canada has observed that once a question is certified in a judgment, “[t]he object of the appeal is still the judgment itself, not merely the certified question”: Pushpanathan v Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982 at para 25, 160 DLR (4th) 193 (emphasis added). The Court did not say that the appeal can also extend to any interlocutory rulings made prior to the issuance of a final judgment on an application.
[40] The second argument advanced by the Respondent in support of its position that it can appeal Prothonotary Aalto’s decision to grant CARL standing is that a decision with respect to standing constitutes “a separate, divisible, judicial act” from a decision on the merits of an application made under the IRPA. However, after the hearing, the Respondent advised the Court that it had discovered HD Mining International Ltd v Construction and Specialized Worker Union, Local 1611, 2012 FCA 327 at paras 16–17. There, the Federal Court of Appeal explicitly rejected the argument that a decision to grant standing is not a “matter arising” under the IRPA and is not therefore not subject to the bar on appeals set forth paragraph 72(2)(e) of that legislation. In rejecting that argument, the Court stated:
[16] The Appellants submit that the question of standing is not a “matter arising” under IRPA. I disagree. To exclude preliminary procedural questions from the category of matters arising under IRPA would strip section 72 of IRPA of its purpose. Standing is a necessary precondition to any immigration matter brought before the Federal Court. The interests at stake in a particular dispute and the relation of the parties to those interests cannot be divorced from the matter itself. As such, I characterize the issue raised on appeal as a “matter arising” under IRPA.
[41] It follows that the Respondent’s position that a decision on the issue of standing can be characterized as a “separate, divisible, judicial act,” distinct from the merits of an application brought under the IRPA, must be rejected.
[42] I pause to observe that even if the issue of standing could have been characterized as such a “separate, divisible, judicial act,” the time for appealing Prothonotary Aalto’s ruling has long passed and that ruling has become res judicata.
[43] Although Prothonotary Aalto’s decision related solely to the application in IMM-3433-17, I consider it to be appropriate to grant standing to CARL in IMM-3373-18 for essentially the same reasons provided by Prothonotary Aalto, and having regard to the fact that these two applications have been consolidated and raise many common issues.
B. Mootness
[44] The general test for mootness was stated in Borowski v Canada (Attorney General), [1989] 1 SCR 342 at 353, 57 DLR (4th) 231 [Borowski] as follows:
The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term "moot" applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if the circumstances warrant.
[45] Regarding the first stage of the analysis, the paragraph preceding the passage quoted above makes it clear that the tangible and concrete dispute in question is the dispute between the parties to the proceeding.
[46] With respect to the second stage of the analysis, the Court identified three principal factors to be considered. Those are: (i) whether an adversarial relationship continues to exist between the parties; (ii) the need to promote judicial economy; and (iii) whether proceeding to determine the merits of the matter might be viewed as intruding into the role of the legislative branch: Borowski, above at 358–363.
[47] In its written submissions, the Respondent took the position that the JG pertaining to India should no longer be part of the application in IMM-3433-17 because that aspect of the application has become moot. However, the Respondent did not further elaborate.
[48] Subsequent to the hearing of these applications, the Chairperson revoked the JG pertaining to China. In response to my request for submissions with respect to the mootness of that aspect of IMM-3433-17, CARL submitted that the issues it raised with respect to the China JG remain live because that JG has been applied to numerous cases in respect of which there are decisions pending before this Court or the RAD. CARL asserted that if the Court does not rule now on the issue of the Chairperson’s authority to issue JGs on purely factual issues, each individual applicant in the outstanding cases involving the China JG will be required to challenge that purported authority.
[49] In any event, CARL maintains that the fact that issues pertaining to the China JG have already been vigorously argued before the Court in this proceeding is a compelling reason for the Court to exercise its discretion to address those issues. In addition, it asserts that because the Court is still going to have to issue a decision in respect of the Nigeria and Pakistan JGs, judicial resources will not be spared by declining to address whether the China JG was lawfully issued. CARL added that the Court would not exceed its proper institutional role by ruling on the legality of the China JG. Finally, CARL stated that the issue of whether the Chairperson can issue a purely factual JG is likely to arise in the future, and therefore it is important for the Court to address this issue once and for all.
[50] For its part, the Respondent once again simply asserted its position that the issues pertaining to the China JG have become moot. However, it conceded that the ongoing adversarial context between the parties as well as judicial economy may weigh in favour of the exercise of my discretion to deal with the issues pertaining to the China JG. The Respondent added that “the existence of [several cases currently before the Court in which the China JG is potentially a relevant factor] may be germane in the context of the Court’s consideration of” its discretion to entertain an otherwise moot matter.
[51] Turning to the Intervener, its submissions were made solely in respect of the Application in IMM-3433-17. This is because it did not seek leave in relation to IMM-3373-18, (although it was granted certain participation rights at various pre-hearing stages by the case management judge). In brief, the Intervener submitted that the aspect of this proceeding that concerns the China JG has become moot since there is no longer any live controversy in respect of that JG that affects the rights of the parties. In addition, it stated that any legal issues raised by the China JG will be resolved in assessing the legality of the JGs pertaining to Nigeria and Pakistan. With respect to the second stage factors, it acknowledged an adversarial relationship continues to exist between the parties. However, it maintained that the two other stage two factors identified in Borowski, above, weigh in favour of not addressing the issues raised by the China JG.
[52] In my view, the aspect of this proceeding that concerns the China JG is not moot. This is because CARL continues to have a live interest in the “several cases currently before the Federal Court in which the China JG is potentially a relevant factor,” (see paragraph 50 above). In granting standing to CARL, Prothonotary Aalto observed that “CARL has a genuine interest as its members must deal with and respond to the impugned [JGs] in representing clients in the immigration process:”Canadian Association of Refugee Lawyers v The Minister of Citizenship and Immigration, Court Docket IMM-3433-17, November 14, 2017, at 13. A similar observation was made by Justice Boswell in YZ v Canada (Citizenship and Immigration), 2015 FC 892 at para 41.
[53] Nothing turns on my conclusion in this regard, as I find that the factors to be considered in exercising my discretion to address the China JG weigh in favour of doing so, even if that aspect of this proceeding has become moot. In particular, I agree with both CARL and the Respondent that the ongoing adversarial relationship between the parties and considerations of judicial economy weigh in favour of my addressing the issues that have been raised with respect to the China JG. Indeed, the public interest in resolving the ongoing uncertainty regarding those issues also weighs in favour of addressing them: Borowski, above at 361. I will simply add for the record that the final (stage two) factor to be considered in determining whether to exercise my discretion to address the China JG is not relevant. As the Respondent acknowledged, “it cannot be said that the Court would be overstepping its proper role” by proceeding to address the issues that have been raised in respect of the China JG.
[54] I pause to add for the record that in reaching my decision to address those issues, I have not considered it necessary to consider the Further Affidavit of Elyse Korman, sworn on July 8, 2019, which was included with CARL’s submissions on mootness and which was disputed by the Intervener. I also do not consider it necessary to consider, in dealing with the merits of these Applications, the allegedly “new arguments” made in those submissions and disputed by the Intervener.
V. Issues
[55] The issues in dispute in these Applications are as follows:
Does the Chairperson have the authority to identify JGs on questions of fact?
Do the impugned JGs unlawfully fetter Board members’ discretion or improperly interfere with their adjudicative independence?
Do the impugned JGs unfairly enhance the burden of proof for applicants for refugee protection?
Was the Chairperson required to engage in external consultation before identifying the decisions in question as JGs?
Did the Chairperson improperly pre-select the Nigeria JG?
VI. Standard of Review
[56] The issue of whether the Chairperson has the authority to identify JGs on questions of fact is a question concerning the interpretation of the Chairperson’s “home statute,” namely, paragraph 159(1)(h) of the IRPA. Such questions are presumed to be reviewable on a standard of reasonableness, unless that presumption is rebutted: Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2018 SCC 31 at paras 27–28 [CHRC]. In my view, none of the circumstances in which that presumption may be rebutted apply in the present circumstances: CRHC, above at para 28. For greater certainty, this is not one of the “exceptional” circumstances in which “a contextual inquiry shows a clear legislative intent that the correctness standard be applied.” CARL did not suggest otherwise. Indeed, it maintained that the other provisions of the IRPA are of no assistance whatsoever in interpreting paragraph 159(1)(a) of that legislation. Although CARL nevertheless maintains that the issue at hand is one of the Chairperson’s authority or jurisdiction under paragraph 159(1)(h), this is not one of those “elusive” true questions of jurisdictional vires: CHRC, above at paras 34–35.
[57] With respect to the “fettering of discretion/improper interference with adjudicative independence” issue that CARL has raised, it is unnecessary to determine whether the standard of review is correctness or reasonableness. This is because the result will be the same under either of those standards, since the fettering of a decision-maker’s discretion is per se unreasonable: Stemijon Investments Ltd v Canada (Attorney General), 2011 FCA 299 at paras 23–24; Danyi v Canada (Public Safety and Emergency Preparedness), 2017 FC 112 at para 19. In my view, the same is true with respect to the improper interference with a quasi-judicial decision-maker’s independence to make findings of fact.
[58] The issue that CARL has raised with respect to the unfair enhancement of the burden of proof on refugee applicants was framed as an issue involving both procedural fairness and statutory interpretation. As discussed above, the Chairperson’s interpretation of the IRPA is reviewable on a standard of reasonableness. Issues of procedural fairness are ordinarily reviewable on a standard of correctness: Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43. In assessing such issues, the Court’s focus is upon whether an impugned process was or is procedurally fair: see Mission Institution v Khela, 2014 SCC 24 at para 90; Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 68 at para 54.
[59] The issue that CARL has raised with respect to public consultation was framed as an issue of procedural fairness, and therefore is also subject to review on a standard of correctness. However, in this particular case, this issue can be resolved by looking to the plain language of paragraph 159(1)(h). Accordingly, I consider that this issue is reviewable on a standard of reasonableness.
[60] The final issue raised by CARL, concerning whether the Chairperson improperly pre-selected the Nigeria JG, was cast as an issue of the Chairperson’s interpretation of the IRPA. As noted above, such issues are reviewable on a standard of reasonableness, as it concerns the interpretation of the Chairperson’s “home statute.” Nothing turns on this, as I find that the evidence does not establish that the Chairperson de facto identified the Nigeria JG as a JG at any time before he formally did so, almost two months after the RAD issued the decision in question.
VII. Analysis
A. Does the Chairperson have the authority to issue JGs on questions of fact?
[61] CARL maintains that each of the four JGs at issue in this proceeding is null and void on the ground that they deal in whole or in part with questions of fact and the Chairperson is not authorized to issue a JG on a question of fact. For this reason, CARL submits that the identification of the four decisions in question as JGs was ultra vires the authority paragraph 159(1)(h) of the IRPA confers on the Chairperson. I disagree.
[62] In support of its position, CARL notes that the Chairperson’s 2016 policy on the use of JGs states that “[a] decision may be identified as a [JG] on either a question of law or a question of mixed law and fact.” CARL relies upon that statement as a strong indication of the manner in which the Chairperson interpreted his authority under paragraph 159(1)(h). CARL further notes that paragraph 159(1)(h) has not been amended since that statement was made, yet the Chairperson now takes the position that JGs can be issued in respect of questions of fact.
[63] I accept the position that the statement quoted immediately above provides some indication of the manner in which the Chairperson interpreted his authority under paragraph 159(1)(h). However, it is not the only such indication.
[64] Importantly, in his decision to identify the Pakistan, China and India JGs, the Chairperson explicitly stated that those JGs “are based on findings of fact or mixed law and fact” (emphasis added). Moreover, the policy note that was issued together with the China JG stated: “The key determination in this [JG] is one of fact that may be applicable to a large number of claims, in that it is a determination in relation to an aspect of the Chinese government’s public security infrastructure and how it operates” (emphasis added).
[65] To the extent that the China JG is largely confined to facts, the Chairperson’s interpretation of paragraph 159(1)(h) can be implied and is entitled to be reviewed for its reasonableness: Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 63 (Agraira). Put differently, it can be implied from the fact that the China JG primarily addresses factual issues, and from the statement immediately quoted above from the policy note, that the Chairperson interpreted paragraph 159(1)(h) as conferring upon him the authority to issue JGs on issues of fact. The fact that the Chairperson’s interpretation was implicit, as opposed to explicit, does not render it any less entitled to be reviewed for its reasonableness: Agraira, above at para 63.
[66] There are additional indications of the Chairperson’s implicit interpretation of paragraph 159(1)(h). Specifically, various references are made to issues of fact in several of the documents that are included in the record in this proceeding. For example, in an e-mail that was sent to Board members at the time the Pakistan, China and India JGs were identified, the Chairperson stated: “Decision-makers are expected to apply [JGs] in cases with similar facts or provide reasoned justifications for not doing so.” A similar statement was included in the policy notes issued with the four JGs that are at issue in this proceeding. Likewise, the Board’s Policy on the Use of Jurisprudential Guides states:
A member must explain in his or her reasoning why he or she is not adopting the reasoning that is set out in a jurisprudential guide when, based on the facts of the case, he or she would otherwise be expected to follow the jurisprudential guide (emphasis in original).
[67] In the same vein, the policy notes that announced the revocation of the India JG and two JGs pertaining to Costa Rica stated that those JGs had been initially identified because they offered a “sound analysis of the legal and factual issues raised.” The policy notes explained that those JGs had been withdrawn because of certain evidentiary/factual developments in the country documentation. The Revocation Notice that was issued in respect of the China JG provided a similar explanation. It stated that the JG was being revoked because it contained “a finding of fact which is not supported by the China Documentation Package (NDP) in effect at the time of the decision” that was identified as the JG.
[68] In my view, the Chairperson’s implicit interpretation of paragraph 159(1)(h) is also reasonable because it accords with the plain words of that provision. Moreover, that interpretation is broadly consistent with the provision’s legislative history, its apparent purpose, and its statutory context.
[69] With respect to the plain wording of the provision, there is no limitation confining its scope to issues of law or mixed law and fact. Rather, an unlimited authority to identify decisions as JGs was provided “to assist members in carrying out their duties” and “after consulting with the Deputy Chairpersons.” Subject to the comments that I will make in the next section of these reasons below, it is not immediately apparent why JGs addressed to factual issues would not be as hel