Restrepo Benitez v. Canada (Minister of Citizenship and Immigration)

Restrepo Benitez v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2006-04-10
Neutral citation
2006 FC 461
File numbers
IMM-1144-05, IMM-1419-05, IMM-1877-05, IMM-2034-05, IMM-2150-05, IMM-2709-05, IMM-3313-05, IMM-353-05, IMM-4044-05, IMM-4064-05, IMM-407-05, IMM-470-05, IMM-712-05, IMM-9220-04, IMM-934-05, IMM-9452-04, IMM-9766-04, IMM-9797-04
Notes
Reported Decision
Decision Content
Date: 20060410
Docket: IMM-9766-04
Citation: 2006 FC 461
Ottawa, Ontario, April 10th, 2006
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
JORGE LUIS RESTREPO BENITEZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
and
Docket: IMM-9220-04
SIRISENA KURUVITA ARACHCHIGE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
and
Docket: IMM-9452-04
AFUA GYANKOMA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
and
Docket: IMM-9797-04
MIKE BILOMBA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
and
Docket: IMM-353-05
GERARDO MARTIN ROSALES RINCON
CATALINA RODRIGUEZ PATINO
ERLIS BEATRIZ DELGADO OCANDO
GERLY JOANNY ROSALES DELGADO
WANDA SOFIA ROSALES DELGADO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
and
Docket: IMM-407-05
EDWIN ERNESTO CARRILLO MEJIA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
and
Docket: IMM-934-05
MAJID REZA YONGE SAVAGOLI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
and
Docket: IMM-1144-05
MUHAMMAD SADIK QADRI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
and
Docket: IMM-1419-05
JUVINNY BALMORE FLORES GOMEZ
YANETH BEATRIZ CASTILLO CAMPOS
KONNY BEATRIZ FLORES CASTILLO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
and
Docket: IMM-1877-05
SHURLYN CATHY ANN JONES
SHURNIKYA JONES
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
and
Docket: IMM-2034-05
LUIS ALEJANDRO LEMUS ORTIZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
and
Docket: IMM-2150-05
INTHIKHAB HUSSAIN MATHEEN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
and
Docket: IMM-2709-05
GUILLERMO GUTIERREZ TRUJILLO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
and
Docket: IMM-3313-05
JACQUELINE ROBINSON
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
and
Docket: IMM-3994-05
SIRISENA KURUVITA ARACHCHIGE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
and
Docket: IMM-4044-05
RANJIT DEY ROY
RATNA RANI DEY ROY
SWAKSHAR DEY ROY
SWAIKOT DEY ROY
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
and
Docket: IMM-712-05
MENA GUIRGUIS
MARIE GOORGY
MONICA GUIRGUIS
MALAK GUIRGUIS
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
and
Docket: IMM-470-05
JORGE ISAAC MARTINEZ MARTINEZ
EVA LIBERTAD MORALES (a.k.a. EVA LIBERTAD MORALES DE MARTINEZ)
JORGE ARMANDO MARTINEZ MORALES
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
and
Docket: IMM-4064-05
SUTHARMINI KAMALENDRAN
SINOJAN KAMALENDRAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TABLE OF CONTENTS
Paragraph
1. Procedural History 1
2. Legislative Framework 12
3. Background to the Guideline 7 Controversy 18
4. Issues 33
5. Analysis 43
Standard of Review 43
Application of the Charter of Rights and Freedoms 46
Application of Section 7 47
Application of Section 15 68
Is the procedure mandated by Guideline 7 and adopted by the tribunal 72
contrary to natural justice?
Baker Analysis 85
Nature of the decision being made 93
Legitimate expectation 100
Choice of procedure by the agency itself 108
“Other” factors 113
Conclusion on Baker Analysis 127
Was the discretion of Board Members fettered by the imposition and 129
implementation of Guideline 7 ?
Is Guideline 7 beyond the scope of the Chairperson’s authority? 173
Does questioning by the Board Member result in a reasonable 189
apprehension of bias?
When must an objection to the use of Guideline 7 be raised? 204
6. Conclusions 237
7. Certified questions 238
Procedural History
[1] These reasons concern nineteen applications for judicial review which were consolidated in part for hearing by the Order of Justice Judith A. Snider dated February 20, 2006. Each of the 19 applications raises issues regarding a guideline made by the Chairperson of the Immigration and Refugee Board (“IRB”) under the authority of paragraph 159(1)(h) of the Immigration and Refugee Protection Act S.C. 2001, c. 27 (“IRPA”).
[2] This guideline, entitled “Guideline 7 – Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division”, was the subject of a recent decision of Justice Edmond P. Blanchard in Thamotharem v. The Minister of Citizenship and Immigration, 2006 FC 16, [2006] F.C.J. No. 8 (QL). In reasons dated January 6, 2006, Justice Blanchard found that Guideline 7 unlawfully fettered the discretion of members of the Refugee Protection Division (“RPD”) and held that the decision that was before him would be quashed and the applicant’s claim remitted for redetermination by a differently constituted panel. In an Order dated January 19, 2006, Justice Blanchard allowed the application and certified three questions as being of general importance in accordance paragraph 74(d) of IRPA. An appeal and cross-appeal have been filed from this decision.
[3] Following the release of Justice Blanchard’s decision in Thamotharem, it became apparent that there were a number of applications for judicial review raising similar issues scheduled to be heard by different judges at various sittings of this Court. Following consultations with counsel for the parties, Chief Justice Allan Lutfy ordered that 20 applications be continued as specially managed proceedings and, pursuant to Rule 383, appointed Mr. Justice Gibson and Madam Justice Snider as Case Management Judges for those applications.
[4] Justice Frederick E. Gibson and Justice Snider participated in conference calls with counsel for the parties on several dates in February. Upon being satisfied that it was in the interest of justice that the identified Guideline 7 issues be dealt with as expeditiously as is consistent with fairness and justice, Justice Snider ordered the consolidation of the twenty applications.
[5] Pursuant to Rule 105 (a) of the Federal Court Rules, Justice Snider’s Order provided that the consolidated judicial reviews were, in part, to be heard together, or one immediately after the other, at the discretion of the hearing judge. Further to Rule 107(1), the issues in the consolidated judicial reviews that relate in whole or in part to Guideline 7 were to be determined separately following a single hearing with counsel located in centres outside the Greater Toronto Area participating by video conference if it were impractical to attend in person. The Order also instructed that any remaining issues on each of the consolidated cases were to be determined in separate hearings presided over by one or more different judges, on dates that are as early as practicable following the expedited hearing of the Guideline 7 issues. It also set out deadlines for the filing of further written submissions and affidavits and completion of cross-examinations on the affidavits.
[6] Prior to the hearing on the Guideline 7 issues, one application was resolved on consent leaving 19 which were the subject of these proceedings. The hearing took place at Toronto on March 7 and 8, 2006 with counsel participating by video conference from Montreal and Halifax. Submissions were received from counsel for each of the applicants in sequence, followed by the respondent’s consolidated submissions. Reply submissions were received in the same order. As one of the applicants sought and was granted leave, on consent, to file an IRB document during reply submissions, Counsel were invited to submit further written representations on the content of that document following the hearing as well as to propose serious questions of general importance for certification in accord with IRPA s.74.
[7] The evidence that was before Justice Blanchard in Thamotharem was also filed in these proceedings. That included the affidavits and cross-examinations, of Mr. Raoul Boulakia, President of the Refugee Lawyers Association, Professor James Galloway of the University of Victoria and former IRB Member, Dr. Donald Payne, a psychiatrist, and Mr. Paul Aterman, lawyer and Director General, Operations for the IRB. This evidence is described in detail in Justice Blanchard’s reasons at paragraphs 26 and 27.
[8] A second affidavit from Mr. Aterman, sworn January 6, 2006, and cross-examination dated February 23, 2006, were also filed. In addition, the respondent submitted the affidavit of Asad Kiyani sworn February 20, 2006 to which was attached two volumes of RPD decisions and excerpts of transcripts from RPD hearings relating to the implementation of Guideline 7.
[9] Simultaneous interpretation in English and French was provided on Tuesday, March 7, 2006 at the request of counsel for the respondent. Counsel for one applicant presented her submissions in French. The submissions in both languages were heard and understood by the Court without the assistance of the interpretation, as required by s.16 of the Official Languages Act R.S., 1985, c. 31 (4th Supp.).
[10] In keeping with the consolidation order, submissions from counsel respecting the facts in relation to each application for judicial review were not received in this hearing except to the extent that counsel deemed it necessary to refer to them in support of their arguments respecting the Guideline 7 issues. Counsel did draw the Court’s attention to the particular circumstances of certain applicants for whom an increased susceptibility to stress in a hearing room and to questioning by strangers could be inferred. Counsel also referred to portions of the transcripts of the refugee determination hearings to illustrate certain points in issue.
[11] After the hearing, on March 13, 2006, counsel for one of the applicants brought a motion in writing pursuant to Rule 369 for an Order to permit the applicant to amend his application record to include a second affidavit from Mr. Boulakia, attaching a recent decision by a RPD member opposed to Guideline 7. The respondent opposed that motion on the ground that it was incompatible with the Order of Justice Snider dated February 20, 2006. By Order dated April 1, 2006, I dismissed the motion to amend the application record.
LEGISLATIVE FRAMEWORK
[12] The provisions of the Immigration and Refugee Protection Act that are of particular significance in these proceedings, in my view, are paragraph 159 (1)(h), section 161, subsection 162(2) and section 170.
[13] The Chairperson’s discretionary authority to issue guidelines to Board members is set out in IRPA paragraph 159(1)(h). The enactment states that the purpose of this authority is to assist the members with carrying out their duties:
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
…
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 and the Director General of the Immigration Division, to assist members in carrying out their duties;
h) après consultation des vice-présidents et du directeur général de la Section de l’immigration 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 ;
[14] Under IRPA s. 161, the IRB Chairperson may also make rules respecting, among other things, the “activities, practice and procedure” of each division of the Board. Rules made under this authority require the approval of the Governor-in-Council and must be laid before each House of Parliament within 15 sitting days of such approval. I note that there are no similar requirements for guidelines or jurisprudential guides under paragraph 159 (1) (h). See Refugee Protection Division Rules, SOR/2002-228.
[15] The text of subsection 161 (1) is reproduced here:
161. (1) Subject to the approval of the Governor in Council, and in consultation with the Deputy Chairpersons and the Director General of the Immigration Division, the Chairperson may make rules respecting
(a) the activities, practice and procedure of each of the Divisions of the Board, including the periods for appeal, the priority to be given to proceedings, the notice that is required and the period in which notice must be given;
(b) the conduct of persons in proceedings before the Board, as well as the consequences of, and sanctions for, the breach of those rules;
(c) the information that may be required and the manner in which, and the time within which, it must be provided with respect to a proceeding before the Board; and
(d) any other matter considered by the Chairperson to require rules.
161. (1) Sous réserve de l’agrément du gouverneur en conseil et en consultation avec les vice-présidents et le directeur général de la Section de l’immigration, le président peut prendre des règles visant :
a) les travaux, la procédure et la pratique des sections, et notamment les délais pour interjeter appel de leurs décisions, l’ordre de priorité pour l’étude des affaires et les préavis à donner, ainsi que les délais afférents;
b) la conduite des personnes dans les affaires devant la Commission, ainsi que les conséquences et sanctions applicables aux manquements aux règles de conduite;
c) la teneur, la forme, le délai de présentation et les modalités d’examen des renseignements à fournir dans le cadre d’une affaire dont la Commission est saisie;
d) toute autre mesure nécessitant, selon lui, la prise de règles.
[16] Subsection 162 (2) indicates Parliament’s intent that proceedings before the IRB are to be conducted with as little formality, and as quickly, as is consistent with natural justice:
(2) Each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.
(2) Chacune des sections fonctionne, dans la mesure où les circonstances et les considérations d’équité et de justice naturelle le permettent, sans formalisme et avec célérité.
[17] Section 170 describes the mandate of the Refugee Protection Division and sets out certain mandatory and permissive considerations respecting its proceedings:
170. The Refugee Protection Division, in any proceeding before it,
(a) may inquire into any matter that it considers relevant to establishing whether a claim is well-founded;
(b) must hold a hearing;
(c ) must notify the person who is the subject of the proceeding and the Minister of the hearing;
(d) must provide the Minister, on request, with the documents and information referred to in subsection 100(4);
(e) must give the person and the Minister a reasonable opportunity to present evidence, question witnesses and make representations;
(f) may, despite paragraph (b), allow a claim for refugee protection without a hearing, if the Minister has not notified the Division, within the period set out in the rules of the Board, of the Minister's intention to intervene;
(g) is not bound by any legal or technical rules of evidence;
(h) may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances; and
(i) may take notice of any facts that may be judicially noticed, any other generally recognized facts and any information or opinion that is within its specialized knowledge
170. Dans toute affaire dont elle est saisie, la Section de la protection des réfugiés :
a) procède à tous les actes qu'elle juge utiles à la manifestation du bien-fondé de la demande;
b) dispose de celle-ci par la tenue d'une audience;
c) convoque la personne en cause et le ministre;
d) transmet au ministre, sur demande, les renseignements et documents fournis au titre du paragraphe 100(4);
e) donne à la personne en cause et au ministre la possibilité de produire des éléments de preuve, d'interroger des témoins et de présenter des observations;
f) peut accueillir la demande d'asile sans qu'une audience soit tenue si le ministre ne lui a pas, dans le délai prévu par les règles, donné avis de son intention d'intervenir;
g) n'est pas liée par les règles légales ou techniques de présentation de la preuve;
h) peut recevoir les éléments qu'elle juge crédibles ou dignes de foi en l'occurrence et fonder sur eux sa décision;
i) peut admettre d'office les faits admissibles en justice et les faits généralement reconnus et les renseignements ou opinions qui sont du ressort de sa spécialisation.
BACKGROUND TO THE GUIDELINE 7 CONTROVERSY
[18] Under the authority of a provision in the precedessor statute, subsection 65(3) of the Immigration Act R.S.C. 1985, c.I-2, guidelines were issued by the Chairperson of the Immigration and Refugee Board to encourage consistent and transparent decision making with respect to a number of subject areas. The Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution were issued in 1993 and updated in November 1996. The Guidelines on Civilian Non-Combatants Fearing Persecution in Civil War Situations were issued in March 1996, Guidelines on Child Refugee Claimants in August 1996, Guidelines on Detention on March 12, 1998. Upon the coming into force of IRPA on June 28, 2002, the gender, civilian non-combatants and child refugee claimant guidelines were reissued by the Chairperson under paragraph 159 (1) (h).
[19] In October, 2003 the Chairperson issued three further guidelines as part of an action plan to address the backlog of refugee claims which had accumulated by that time. Guideline 5 dealing with the submission of personal information forms and abandonment proceedings came into effect on October 30, 2003 and Guideline 6, relating to scheduling and date changes, became effective on December 1, 2003. Guideline 7 was also made effective December 1, 2003 but was not brought fully into effect until June 2004.
[20] Paul Aterman’s affidavits describe the purpose of these guidelines from the Board’s perspective. He says that they are issued to address specific legal issues, to provide guidance on questions of mixed law and fact, to codify the exercise of discretion, and to provide guidance on procedural issues. The intent is to promote consistency, coherence and fairness in the treatment of cases at the Board. They are not viewed as binding. Members are advised to use their discretion to follow a different approach where warranted in individual cases. These views are also set out in a statement entitled “Policy on the use of the Chairperson’s Guidelines” attached as Exhibit “J” to the second Aterman affidavit.
[21] At paragraph 30 of the second affidavit, Mr. Aterman states that prior to the issuance of Guideline 7, the order of questioning at RPD hearings varied regionally within the IRB. Guideline 7 introduced a national standard order of questioning. His affidavit further describes the consultations that were undertaken with interested non-governmental organizations prior to the implementation of the guideline which resulted in steps being taken by the Board to respond to concerns raised. These included internal training sessions on questioning and a six month phase-in period from December 1, 2003 to May 31, 2004 during which the standard order was implemented only with the claimant’s consent.
[22] In paragraph 19 of Guideline 7, found at Exhibit “I” to the second Aterman affidavit, RPD members and others are advised:
In a claim for refugee protection, the standard practice will be for the [Refugee Protection Officer] RPO to start questioning the claimant. If there is no RPO participating in the hearing, the member will begin, followed by counsel for the claimant [emphasis added].
[23] The paragraph concludes with the statement:
Beginning the hearing in this way allows the claimant to quickly understand what evidence the member needs from the claimant in order for the claimant to prove his or her case.
[24] The Guideline contemplates that the RPD will define the issues which are to be addressed at the hearing through disclosure of the RPD File Screening Form with the Notice to Appear for the hearing and that questioning would be limited to those issues and any others that the claimant may wish to submit. Guideline 7 covers matters such as case preparation, disclosure of documents, research requests, pre-hearing conferences, interpretation and the making of representations. The Guideline also stipulates the order of questioning where the Minister intervenes on the issue of exclusion, on other issues, or in an application to vacate or cease refugee protection.
[25] Paragraph 23 of the Guideline provides that the RPD member may change the order of questioning in exceptional circumstances. The examples provided of exceptional circumstances are a severely disturbed claimant or a very young child who might feel intimidated by an unfamiliar examiner and thereby finds it difficult to understand and answer questions. In such circumstances, the paragraph says, the member could decide that it would be better for the claimant’s counsel to begin the questioning. However, the party who believes that exceptional circumstances exist is expected to make an application to change the order of questioning before the hearing and the application is to be made according to the RPD Rules s.44, that is, in writing before the hearing supported by evidence in affidavit or statutory declaration form.
[26] The introduction to the Guideline states, in part:
Administrative tribunals operate less formally and more expeditiously than courts of law. Accordingly, the Immigration and Refugee Protection Act (IRPA) requires the IRB to deal with proceedings before it informally, quickly and fairly. The Chairperson has issued these guidelines to explain what the RPD does before and during the hearing to make its proceedings more efficient but still fair. The guidelines also set out what the RPD expects participants to do.
The guidelines apply to most cases heard by the RPD. However, in compelling or exceptional circumstances, the members will use their discretion not to apply some guidelines or to apply them less strictly.
Generally speaking, the RPD will make allowances for unrepresented claimants who are unfamiliar with the Division's processes and rules. Claimants identified as particularly vulnerable will be treated with special sensitivity.
[27] The role of RPD members under IRPA is described in the Guideline as comparable to that of Commissioners under the Inquiries Act R.S.1985, c.I-11. The text states that members may inquire into anything they consider relevant to establishing whether a claim is well-founded and define the issues that must be resolved in order to render a decision. This role is distinguished in the Guideline from that of a judge. A judge’s role, the Guideline states, is to consider the evidence and argument which the parties chose to present. Moreover, it provides, the RPD has control of its own procedure, including who is to start the questioning. RPD members, the text states, have to be actively involved to make the RPD’s inquiry process work properly.
[28] Mr. Aterman’s evidence is that in drafting the guideline, a deliberate choice was made to avoid the use of terminology such as “examination-in-chief” and “cross-examination” as inappropriate concepts better suited to an adversarial model requiring judicial formality. Attached to his affidavit as Exhibit “N” is a copy of the Board’s training handout entitled “Questioning 101” which instructs new members and RPOs that they are not to “cross-examine” claimants, or employ aggressive techniques such as attempting to trap the claimant, to badger or harass by repetitious or misleading questions or to adopt a hostile or sarcastic tone. The object is not to try to “win” a case.
[29] Notwithstanding these instructions, the Court is familiar with instances in which RPD members have failed to live up to these expectations, some of which are described in the cases discussed below in these reasons and in the evidence of Mr. Boulakia and Professor Galloway. It is clear from that evidence that RPOs and members do not always maintain neutrality and a non-adversarial stance in their questioning as they are instructed to do in their training.
[30] It appears from the evidence, and submissions of counsel, that prior to the implementation of Guideline 7, it was common in Toronto, and possibly Calgary and Vancouver, although the evidence with respect to those cities is not clear, for counsel for the claimant to begin the questioning at the hearings. The RPO (if present) would then question the claimant, followed by the Board member if he or she had any remaining matters to raise. This practice, the applicants submit, was more in keeping with the nature of a quasi-judicial hearing and allowed for an “examination-in-chief” in which claimants were encouraged to fully recount their histories with the assistance of counsel whom they had come to know and trust.
[31] In Montreal and Ottawa, it appears the practice described in Guideline 7 was more common but was not mandatory before June, 2004. In those cities, counsel could ask to question their clients first and were frequently accommodated by the Board members.
[32] According to Mr. Aterman’s affidavit evidence, the standard order of questioning was introduced as part of an Action Plan to increase the Board’s efficiency, decrease the average time of a hearing and reduce burdens on the Board’s resources while maintaining fairness. The applicants challenge these assertions as unfounded and unwarranted. The change, they say, has had little effect on hearing times or the overall disposition rate for refugee determinations but has denied claimants their rights to the effective assistance of counsel and to be heard, both of which are aspects of fundamental justice and procedural fairness.
ISSUES
[33] In considering the issues raised by the parties in these proceedings I have been conscious of the fact that much of the ground that I am covering has been travelled previously by other judges of this Court, notably Justice Blanchard in Thamotharem. I am not bound by those decisions but the notion of judicial comity suggests that I should exercise restraint when dealing with legal issues which my colleagues have previously decided.
[34] Judicial comity is not the application of the rule of stare decisis, but recognition that decisions of the Court should be consistent to the extent possible so as to provide litigants with some predictability. I am aware, as was stated in Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590 (B.C.S.C.):
...I have no power to overrule a brother Judge, I can only differ from him, and the effect of my doing so is not to settle but rather to unsettle the law, because, following such a difference of opinion, the unhappy litigant is confronted with conflicting opinions emanating from the same Court and therefore of the same legal weight.
[35] With judicial comity in mind, I have concluded that I should differ from the prior decisions of my colleagues only if I am satisfied that the evidence before me requires it or that I am convinced that the decisions were wrongly decided in that they did not consider some binding authority or relevant statute. In that regard, I would note that while the record before me includes the evidence that was before the Court in Thamotharem, it also includes new evidence that was not part of the record in that case.
[36] In these proceedings, the applicants’ submissions start from Justice Blanchard’s finding in Thamotharem that RPD members’ discretion has been fettered by the manner in which Guideline 7 was defined and imposed. However, as he did not hold that the Guideline order of questioning, in itself, denied procedural fairness, the applicants collectively submit that the Court should recognize that a higher standard of procedural fairness is called for in refugee determination hearings. This, they contend, would include a right to an “examination-in-chief” by their counsel in advance of any questioning by the RPO or Board member. The applicants submit that this should be acknowledged by the Court to be an aspect of fundamental justice in the context of refugee hearings, as contemplated by section 7 of the Charter, or, at the very least, as a principle of natural justice in the common law sense.
[37] One applicant, Shurlyn Jones (IMM-1877-05), submits that it is never permissible for a RPD member, in the absence of an RPO, to engage in questioning the claimant prior to claimant’s counsel and that this practice results in an apprehension of institutional bias and undermines claimants’ right to an impartial and independent tribunal.
[38] Another applicant, Mike Balomba (IMM-9797-04), contends that the equality rights guaranteed by section 15 of the Charter have been infringed in that refugee claimants are discriminated against by being denied the same procedural protections as other litigants before judicial and quasi-judicial bodies, notably those who appear before the other Divisions of the IRB.
[39] The respondent also starts from Justice Blanchard’s decision and urges that I follow his finding that fairness does not dictate a right to an “examination-in-chief.” The respondent asks the Court to conclude, on the basis of the fresh evidence before me, that the discretion of RPD members has not in fact been fettered by implementation of the Guideline. To the extent that any of the applicants perceive that the application of the Guideline has denied them a fair hearing, the respondent submits that they may seek a remedy in this Court, as they have, and that each case of alleged procedural unfairness should be reviewed on an individual basis.
[40] The respondent urges the Court to resolve the controversy between the parties on administrative law principles rather than upon a Charter analysis.
[41] Further, the respondent submits that any applicants who did not object to the Guideline 7 procedure in a timely manner before the refugee hearing or in their applications for leave to this Court, should not now be permitted to claim a denial of procedural fairness.
[42] I have concluded that the issues related to Guideline 7 in the 19 applications before me that I must address in these reasons are as follows:
1. What is the standard of review to be applied to the applications under review?
2. Whether an analysis of the Guideline 7 procedure pursuant to the Canadian Charter of Rights and Freedoms analysis is required and, if so, does it infringe fundamental justice under s.7 or violate s.15?
3. Was the procedure mandated by Guideline 7, in itself, contrary to common law principles of natural justice?
4. Did the implementation of Guideline 7 fetter the discretion of Board members?
5. Is Guideline 7 beyond the scope of the Chairperson’s authority to issue guidelines?
6. Does questioning by the Board member demonstrate a reasonable apprehension of institutional bias?
7. If natural justice is implicated, when must the applicant raise an objection to the use of Guideline 7?
ANALYSIS
Standard of Review
[43] In applications for judicial review of the actions of administrative tribunals, the starting point is usually to determine the standard of review on a pragmatic and functional analysis. This is a question of law which must be decided by the Court even in cases where the parties are in agreement as to what that standard should be: Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), [2004] 3 S.C.R. 152, 2004 SCC 54 at para. 6.
[44] However, as noted by Justice Blanchard in Thamotharem at paragraph 15, a pragmatic and functional analysis is not required when the Court is assessing allegations of the denial of natural justice or procedural fairness: Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29. Instead, the Court must examine the specific circumstances of the case and determine whether the tribunal in question observed the duty of fairness. If the Court concludes that there has been a breach of natural justice or procedural fairness, no deference is due and the Court will set aside the decision of the Board.
[45] Where a breach of fairness is found to result from a reasonable apprehension of bias, the standard is particularly demanding, particularly where, as here, the rights of claimants in proceedings before the Board are at stake: Kozak v. Canada (Minister of Citizenship and Immigration; Smajda v. Canada (Minister of Citizenship and Immigration), 2006 FCA 124 [Kozak].
Application of the Canadian Charter of Rights and Freedoms
[46] Two notices of constitutional question were served on the federal and provincial Attorneys General in these proceedings as required by section 57 of the Federal Courts Act R.S.C. 1985, c. F-7. The Notice filed in Benitez (IMM-9766-04) identifies three constitutional issues. They are: (1) that the order of questioning mandated by paragraph 19 of Guideline 7 is contrary to section 7 of the Charter; (2) that Guideline 7 is also contrary to section 15 of the Charter because persons appearing before other tribunals have a right to present their evidence first, have their counsel present their evidence first, and have their counsel question first; and (3) that the failure to implement the Refugee Appeal Division is contrary to section 7. This third issue was not argued at the hearing. The Notice filed in Jones (IMM-1877-05) states that by permitting the Board member to conduct an examination-in-chief of the claimant, paragraph 19 breaches the right to a fair and independent judiciary resulting in a reasonable apprehension of bias which is contrary to section 7 of the Charter.
Section 7
[47] There is no dispute between the parties that section 7 of the Charter is engaged in the refugee determination process as that question was determined by the Supreme Court in Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177, 17 D.L.R. (4th) 422 [Singh]. The respondent takes the position, however, that there is no need for the Court to determine this matter on fundamental justice considerations as this case may be resolved through the application of administrative law principles respecting natural justice.
[48] I note that in Thamotharem, neither the applicant nor the intervener argued that the Chairperson’s standard order of questioning procedure violates the principles of fundamental justice guaranteed under section 7 of the Charter. Rather, they based their submissions on the common law principles of natural justice and procedural fairness. Accordingly, Justice Blanchard determined the content of the procedural protections to be afforded the applicant in that case by an analysis of the factors described by Justice L’Heureux-Dubé in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 [Baker]. The applicants submit that should be the starting point in considering fundamental justice.
[49] As held in Singh, the Charter protects the personal security interests of Convention refugee status claimants. Those interests are engaged by the risk of being returned to persecution and claimants are thus entitled to fundamental justice in the determination of their status. “Fundamental justice”, as used in Charter s. 7, is broader than the administrative law concept of natural justice. It encompasses substantive as well as procedural elements. At a minimum, fundamental justice in the refugee determination context requires that claimants are provided with an adequate opportunity to state their case and to know the case they have to meet. In Singh, the Supreme Court found that this requires notice and an oral hearing, although how that hearing was to be conducted was not specified.
[50] The applicants submit that refugee determination proceedings are quasi-judicial in nature because the Board has some of the trappings of a judicial body, adjudicates on individual rights, is statutorily mandated to hold hearings to make findings of fact, and must identify the relevant laws and apply them to the facts as found. Accordingly, the applicants submit, the procedures employed by the Board will not meet minimum standards of fairness if they deviate significantly from the curial mode. Moreover, as held in Singh, administrative convenience and considerations such as the interest of the tribunal in quicker resolution of cases cannot be determinative of fundamental justice principles. That is the important difference, they submit, between a natural justice argument and a fundamental justice argument – the needs of the tribunal, relevant to a natural justice analysis, cannot trump the Charter rights of the individual.
[51] The fundamental principles at stake here, the applicants submit, are the right to counsel and the right to be heard. Both principles, they argue, are undermined by the standard order of questioning procedure adopted by the Board, as the practice diminishes the role of counsel in assisting the client and prevents the claimant from adequately presenting his or her case.
[52] The issue was framed in somewhat different terms during oral argument. Counsel submitted that the two principles at play, the right to counsel and to be heard meet the test of fundamental justice principles defined by the Supreme Court in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, 2004 SCC 4, i.e., they are legal principles, vital to our societal notion of justice and can be applied with precision and applied predictably. Counsel suggested, however, that the issue before the Court was slightly more subtle:
It is whether or not within the context of a refugee hearing the right to be heard…encompasses the right of counsel to determine whether or not he will examine in chief. (Transcript at 76)
[53] I have some difficulty with the notion that the rights at issue in these proceedings are those of counsel. This may have been just a matter of unfortunate phrasing but a recurring theme throughout the oral argument was that what upset counsel most was the loss of control over the presentation of the claimant’s case in the hearing setting.
[54] I accept that counsel, generally, have spent considerable time with the claimants prior to the hearings, have gained their trust and know the evidence to be adduced and the claimants’ frailties. Many claimants will have been traumatized from their past experiences, as was indicated by Dr. Payne in his evidence. Should the RPO or the Board member, strangers to the claimants, question first, the claimants may be exposed to unnecessary stress that may make it difficult for them to be properly heard.
[55] In the applicants’ submissions, this vulnerability requires that the highest order of procedural protection be applied in refugee determinations and that the application of Guideline 7 be reviewed on fundamental justice standards. In my view, that vulnerability calls for sensitivity and discretion to be exercised by whomever is examining the claimant. Experienced RPOs and Board members may be more adept at it than inexperienced or poorly trained counsel.
[56] The respondent submits that fundamental justice does not require that a claimant for refugee status have a right to an “examinat