Sabitu v. Canada (Citizenship and Immigration)

Sabitu v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2021-02-23
Neutral citation
2021 FC 165
File numbers
IMM-7880-19
Decision Content
Date: 20210223
Docket: IMM-7880-19
Citation: 2021 FC 165
Ottawa, Ontario, February 23, 2021
PRESENT: Mr. Justice Annis
BETWEEN:
ALABI ADAM SABITU
MARIAM AROMOKE SALIU-ADAM
SUMAYYAH TIWATOPE ADAM
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. Introduction
[1] The Applicants seek judicial review of the decision from the Refugee Appeal Division (RAD) dated December 13, 2019, which confirmed the Refugee Protection Division’s (RPD) refusal of the Applicants’ refugee claim as there was a viable internal flight alternative (IFA) in Port Harcourt and in Ibadan, Nigeria.
[2] For the following reasons, this Court allows this application for judicial review.
II. Background
[3] The male Applicant, his wife and their minor daughter are citizens of Nigeria and are claiming refugee protection for fear of female genital mutilation (FGM), harmful tribal rituals and/or other serious harm at the hands of the male Applicant’s grandfather and extended family. The adult Applicants also have a daughter born in Canada that is not part of the claim.
[4] The adult Applicants are university educated. The male Applicant is a civil engineer, and the female Applicant is a microbiologist. They speak Yoruba and English. The couple was engaged in June 2012. In October 2012, the male Applicant left Nigeria for Qatar where he worked in a construction company as a quality control engineer; a position which became permanent in August 2014. They married in June 2013.
[5] As the male Applicant was unable to take his wife with him to Qatar, she stayed with his family in Nigeria. During this time, it appears that she worked in a medical clinic in Ilorin.
[6] The male Applicant’s grandfather was a traditional doctor in his hometown, and as such, the controlling head of the family. When the minor Applicant was born in 2015, he informed the Applicants that she would be subjected to FGM and given a tribal cut mark on the face.
[7] The adult Applicants disagreed with FGM and tribal cutting, but did not express this publicly because it would be contrary to their tradition and customs to argue with elderly members of the family. However, pressure mounted to set a date for the procedures and they received threats to take the minor Applicant from them if a date was not chosen for the circumcision. The Applicants decided to leave Nigeria in 2017.
[8] As the female and minor Applicants did not have a visa for Qatar, the family flew to the United States, and then crossed the border at Lacolle, Quebec a few days later to seek refuge in Canada in September, making a refugee claim in Montréal in 2017.
[9] While the RPD had some credibility concerns, these were not determinative. The claims were ultimately rejected based on the availability of viable IFAs in Ibadan or Port Harcourt. The RPD found that there was insufficient probative evidence that the extended family or tribal community—non-state actors—would be able to find and harm the Applicants in the IFA locations. Further, in all the circumstances of this case, it was judged not objectively unreasonable for the Applicants to seek refuge in the IFA locations of Ibadan and Port Harcourt; considering their profile, education, employment, accommodation, language, indigeneship and alleged ethnic violence. The RPD rejected the asylum claim as the Applicants had a viable IFA. The RAD confirmed the decision.
[10] On appeal, the RAD found that the RPD had misconstrued the male Applicant’s testimony regarding why he had gone to work in Qatar several years ago. However, this was not considered determinative of the appeal because it was not probative of whether he could find work outside of his profession in the IFA locations. Having examined and assessed the record independently, the RAD otherwise concurred in the IFA assessment, and dismissed the Applicants’ appeal.
[11] On December 30, 2019, the Applicants filed the subject application for leave and judicial review. On February 6, 2020, the Applicants filed their application record. The memorandum of argument contained submissions claiming their counsel before the RPD and RAD was incompetent including advising them against including evidence of the fact that the female Applicant has suffered from sickle cell disease since birth.
[12] On March 9, 2020, the Respondent filed its memorandum which contained submissions that the Applicants are statutorily barred from seeking judicial review on allegations of breaches of procedural fairness where they have not exhausted their right to reopen their RAD appeal pursuant to rule 49 of the Refugee Appeal Division Rules, SOR/2012-257 (Rules).
[13] On April 8, 2020, subsequent to the completion of pleadings at the leave stage, the Immigration and Refugee Board of Canada revoked the Jurisprudential Guide (JG) TB7-19851 for Nigeria.
[14] On June 29, 2020, the Applicants filed an application to reopen their RAD appeal pursuant to rule 49 of the Rules. They advance the same ground of inadequate representation as in their Federal Court leave application, in addition to claiming that the RAD decision should be set aside because of the revocation of the Nigeria JG.
[15] On September 22, 2020, Mr. Justice Bell issued a production Order in the present litigation, followed by an Order granting leave for judicial review of the RAD’s decision, on October 21, 2020.
[16] On October 2, 2020, a different RAD member dismissed with reasons the Applicants’ application to reopen their appeal regarding the alleged inadequate representation of former counsel and for the RAD’s reliance on the Nigeria JG. The Applicants have not challenged the reopening decision before the Federal Court. However, the Applicants argue these issues of unfairness referred in this application, which the Respondent claims is a collateral attack on the RAD’s reopening decision.
III. Issues
[17] The issues are as follows:
1) Is the Federal Court barred by section 72(2)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA) from hearing this judicial review regarding the Applicants’ alleged failures of natural justice claims, without their first exhausting a right to request the reopening of the RAD appeal pursuant to rule 49(1) of the Rules?
2) Are the Applicants’ submissions in this application, claiming failures of natural justice, an impermissible breach of the collateral attack doctrine, given that the RAD dismissed the same submissions in the Applicants’ reopening request, which decision the Applicants did not seek to judicially review?
3) Is a determination of the effect of a lawyer’s incompetence on the outcome of the impugned decision assessed against a standard of a “reasonable probability” or “serious possibility”? Was former counsel incompetent and to a degree that would have affected the decision?
4) Was there a failure of natural justice by the RAD’s reliance on the revoked JG? Is the requirement to prove that the revocation would affect the outcome of the impugned decision assessed against a standard of a “reasonable probability” or “serious possibility”?
IV. Standard of Review
[18] In accordance with the decision of the Supreme Court on Canada in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 25 [Vavilov], the merits of administrative decisions are to be presumptively reviewed on the standard of reasonableness, unless either a clear indication of legislative intent or the rule of law requires otherwise.
[19] The framework to determine the standard of review is based on the presumption that an impugned decision is reasonable. A reasonable decision requires internally coherent reasoning and should be justified in light of the legal and factual constraints that bear on the decision such that the decision as a whole is transparent, intelligible and justified (Ibid at paras 15, 75, 83, 85–86, 99). Further, a reviewing court must not require exactitude such that an administrative tribunal must include all arguments or other preferred details; this is not a reason to set aside a decision (Ibid at paras 91–92). The onus is on the party who contests the decision to demonstrate that it is not reasonable (Ibid at para 100).
[20] Issues one and two, interpreting section 72(2)(a) of the IRPA regarding exhausting appeals and waiving the collateral attack rule, are novel questions of law that arise in the determination of this decision, not subject to any standard of review, but are required to be correct statements of legal principles.
[21] Whereas issues three and four described are governed by the standard of correctness. The presumption of reasonableness does not apply to a procedural breach of natural justice. These are reviewable on the standard of correctness (Vavilov at para 23). This standard is governed by common law principles and requires a demonstration of a miscarriage of justice.
[22] In particular, the Court has applied a correctness standard of review to allegations of counsel incompetence, as this issue “goes to the Applicant’s right to fully present his case, which is an issue of procedural fairness” (Galyas v. Canada (Citizenship and Immigration), 2013 FC 250 at para 27; Stephen v Canada (Citizenship and Immigration), 2019 FC 1331 at para 10; Ghauri v Canada (Citizenship and Immigration), 2016 FC 548 at para 22; McIntyre v Canada (Citizenship and Immigration), 2016 FC 1351 at para 16). Similarly, the effect of the revocation of the JG as an issue of procedural natural justice is reviewed on a standard of correctness, and not that of reasonableness.
[23] However, it is to be noted that when the issues of solicitor incompetence and revocation of the JG are considered in an application to reopen an appeal by the RAD pursuant to rule 49(1) of the Rules, the RAD’s decision regarding these issues are reviewed on a reasonableness standard, as stipulated in Huseen v Canada (Citizenship and Immigration), 2015 FC 845 at para 13, stating as follows:
Recent case law has established that RPD decisions considering applications to re-open are to be reviewed on a reasonableness standard, because the RPD’s assessment is a question of mixed fact and law (Gurgus v Canada (Citizenship and Immigration), 2014 FC 9, at para 19 [Gurgus]; Yan v Canada (Citizenship and Immigration), 2010 FC 1270, at para 21).
V. Analysis
A. Is the Federal Court barred by section 72(2)(a) of the IRPA from hearing this judicial review regarding the Applicants’ alleged failures of natural justice claims, without their first exhausting a right to request the reopening of the RAD appeal pursuant to rule 49(1) of the Rules?
[24] The Applicants find themselves in the predicament of facing a collateral attack submission because they understood from the Respondent’s leave submissions that they were required to request the reopening of the RAD appeal decision pursuant to rule 49(1). The Respondent contends that section 72(2)(a) of the IRPA bars them from seeking this judicial review regarding their unfairness claims, without first exhausting their appeal rights pursuant to rule 49(1) of the Rules, to reopen the RAD appeal to entertain their natural justice submissions.
[25] The Applicants therefore, requested a reopening of the RAD appeal pursuant to rule 49(1), which was unsuccessful. Thereafter, having acquiesced to the Respondent’s submissions to reopen the RAD appeal, they did not apply for leave to judicially review the RAD’s reopening decision. Instead, they moved to address their natural justice claims in the principal judicial review application, obtaining leave to add documents to the record relevant to those issues. The Respondent now claims that the continued prosecution of the unfairness claims in this application should be dismissed as a collateral attack on the RAD’s rejected reopening decision.
[26] Because the collateral attack submission is determinative of the Court’s decision, it stands in the way of allowing the application, which is premised on natural justice issues. The collateral attack issue only arises because of the Respondent’s contention that the Applicants were required to exhaust their appeal rights pursuant to section 72(2)(a) and rule 49(1) before seeking to review the RAD decision based on natural justice issues. The interpretation of these provisions is therefore an issue requiring the Court’s consideration, with which it will commence its analysis.
(1) The requirement to request a reopening of the RAD
(a) Two procedures to review failures of natural justice in RAD appeals
[27] To say the least, the Court finds highly surprising the Respondent’s submission that the Applicants’ recently discovered natural justice claims are not reviewable in this application until they have exhausted the RAD appeal process by requesting that it be reopened pursuant to rule 49(1) of the Rules. The consequences of the Respondent’s submission is to force an applicant to engage in a secondary appeal reopening procedure, and if unsuccessful as is most often the case, thereafter to bring a second judicial review application. This would necessitate a motion by an applicant to have both applications heard together, assuming that the applicant would wish to advance the same natural justice issues in the principal application.
[28] If this novel proposition is upheld, it brings to an end the daily practice of this Court in considering failure of natural justice claims in the principal judicial review application. The Court has always proceeded directly, without impediments of other proceedings, to hear natural justice allegations together with other issues raised on the RPD or RAD decisions in a single judicial review application, with the record expanded as necessary to do so. Such a protracted mandatory supplementary procedure will likely be to the disadvantage of an applicant whose reopening request is refused. It will also lead to a multiplicity of proceedings, delay and increased costs, which would have mostly been avoided by the usual procedure of having all of the issues related to the RAD’s decision considered together in one judicial review proceeding before the Federal Court.
[29] The relevant statutory provisions of the IRPA and the Rules necessary to engage these issues are as follows:
IRPA
Loi sur l’immigration et la protection des réfugiés, LC 2001, c 27
71 The Immigration Appeal Division, on application by a foreign national who has not left Canada under a removal order, may reopen an appeal if it is satisfied that it failed to observe a principle of natural justice.
71 L’étranger qui n’a pas quitté le Canada à la suite de la mesure de renvoi peut demander la réouverture de l’appel sur preuve de manquement à un principe de justice naturelle.
Application for judicial review
Demande d’autorisation
72 (1) Judicial review by the Federal Court with respect to any matter — a decision, determination or order made, a measure taken or a question raised — under this Act is, subject to section 86.1, commenced by making an application for leave to the Court.
72 (1) Le contrôle judiciaire par la Cour fédérale de toute mesure — décision, ordonnance, question ou affaire — prise dans le cadre de la présente loi est, sous réserve de l’article 86.1, subordonné au dépôt d’une demande d’autorisation.
Application
Application
(2) The following provisions govern an application under subsection (1):
(2) Les dispositions suivantes s’appliquent à la demande d’autorisation :
(a) the application may not be made until any right of appeal that may be provided by this Act is exhausted;
a) elle ne peut être présentée tant que les voies d’appel ne sont pas épuisées ;
[Emphasis added.]
[Je souligne.]
Rules
Règles de la Section d’appel des réfugiés, DORS/2012-257
Application to reopen appeal
Demande de réouverture d’un appel
49 (1) At any time before the Federal Court has made a final determination in respect of an appeal that has been decided or declared abandoned, the appellant may make an application to the Division to reopen the appeal.
49 (1) À tout moment avant que la Cour fédérale rende une décision en dernier ressort à l’égard de l’appel qui a fait l’objet d’une décision ou dont le désistement a été prononcé, l’appelant peut demander à la Section de rouvrir cet appel.
…
[…]
Factor
Élément à considérer
(6) The Division must not allow the application unless it is established that there was a failure to observe a principle of natural justice.
(6) La Section ne peut accueillir la demande que si un manquement à un principe de justice naturelle est établi.
Factors
Éléments à considérer
(7) In deciding the application, the Division must consider any relevant factors, including
(7) Pour statuer sur la demande, la Section prend en considération tout élément pertinent, notamment :
…
[…]
(b) if the appellant did not make an application for leave to apply for judicial review or an application for judicial review, the reasons why an application was not made.
b) si l’appelant n’a pas présenté une demande d’autorisation de présenter une demande de contrôle judiciaire ou une demande de contrôle judiciaire, les raisons pour lesquelles il ne l’a pas fait.
…
[…]
Other remedies
Autres recours
(9) If there is a pending application for leave to apply for judicial review or a pending application for judicial review on the same or similar grounds, the Division must, as soon as is practicable, allow the application to reopen if it is necessary for the timely and efficient processing of appeals, or dismiss the application.
(9) Si une demande d’autorisation de présenter une demande de contrôle judiciaire en instance ou une demande de contrôle judiciaire en instance est fondée sur des motifs identiques ou similaires, la Section, dès que possible, soit accueille la demande de réouverture si cela est nécessaire pour traiter avec célérité et efficacité les appels, soit rejette la demande.
[Emphasis added.]
[Je souligne.]
[30] In advancing the exhaustion of appeal submission, the Respondent first cited the recent decision of Slatineanu v Canada (Citizenship and Immigration), 2017 FC 1129 [Slatineanu]. The case involved an inadmissibility appeal before the Immigration Appeal Division (IAD). Section 71 of the IRPA permitted an unsuccessful appellant to request a reopening of the appeal. Particularly relevant to this discussion are paragraphs 17 to 19 of Slatineanu, as follows:
[17] I find that the Applicant had a right of appeal as described in section 72(2)(a) of the IRPA that he is required to exhaust before he applies for judicial review. I do not agree that because the re-opened appeal (section 71 of the IRPA) is narrower, and only exercised if there is a failure to observe a principle of natural justice, that it is still not a right of appeal as per section 72(2)(a) of the IRPA.
[18] There is no doubt in my mind that section 72(2)(a) does apply in this case because the argument on the merits in this judicial review are in fact based on procedural unfairness grounds. So the re-opening application is not prejudiced as it is also on the same procedural unfairness grounds and this right must be exhausted before it can be judicially reviewed.
[19] Because the Applicant did not exhaust his right of appeal, I am dismissing this application as being pre-mature.
[Emphasis added.]
[31] In interpreting section 72(2)(a) of the IRPA, the Court in Slatineanu relied on previous decisions of the Federal Court of Appeal that required the exhaustion of appeal rights as a precondition to a judicial review (see Somodi v Canada (Citizenship and Immigration), 2009 FCA 288; and Habtenkiel v Canada (Citizenship and Immigration), 2014 FCA 180).
[32] However, it should be noted that the Court of Appeal decisions referred to involved independent statutory appeal routes that initiated an appeal. While the rights of appeal were available, they were not exercised before seeking to judicially review the tribunal decisions. These cases would be procedurally similar to a refugee claimant attempting to judicially review a decision of the RPD, without first exhausting an originating appeal right to the RAD. The rights of appeal in those cases did not involve supplementary procedures following upon the originating right of appeal, such as a reopening or a redetermination of the appeal decision.
[33] In reply to the Respondent’s submissions, the Applicants argue that reopening issues before the RAD are not encompassed by section 72(2)(a) of the IRPA. They argue that the IAD cases reflect a statutory scheme that demonstrates Parliament’s intent to expressly prescribe “right[s] of appeal” that must be exhausted before bringing judicial review application. This encompasses section 71, as a component of the statutory scheme allowing the applicant to reopen the appeal. The second component then constitutes section 72(2)(a), which imposes the precondition for bringing a judicial review application as “any right of appeal that may be provided by this Act is exhausted” [emphasis added].
[34] As the Court understands the Applicants’ submission, there is a distinction between a statutory reopening of an appeal pursuant to section 71 of the Act in an inadmissibility proceeding, and a similar right in refugee matters to reopen an appeal pursuant to a rule, such as that provided by rule 49(1) of the Rules. In other words, the Applicants would distinguish the rule 49(1) appeal reopening provision from that provided by section 71 as not being “a right of appeal” within the statutory scheme, as that phrase is found in section 72(2)(a) of the Act.
[35] There is some contextual support for the Applicants’ contention that the statutory scheme demonstrates Parliament’s intent to prescribe a path by which “right[s] of appeal” are expressly provided for in admissibility proceedings and which requires its exhaustion as a precondition to bringing a judicial review application. Section 71 is entitled “Reopening appeal” and is found in Division 7 of the Act under the major heading “Right of Appeal”. Section 72(2), contains the phrase “right of appeal” in the body of the provision, and is contained in Division 8, entitled “Judicial Review”. The phrase “right of appeal” in the heading of Division 7 covering the reopening provision, and also found in section 72(2)(a), would contextually support Parliament’s intention that “right of appeal” is a term linked to both provisions.
[36] The Court does not reject the Applicants’ submission. It simply seems irreconcilable with the historical treatment of these provisions. The Slatineanu decision in 2017 similarly appears to be the first case applying section 72(2)(a) to conclude that section 71 provided a “right of appeal” that barred judicial review applications until a non-originating appeal procedure was exhausted.
[37] Treating section 71 or rule 49 in this mandatory fashion raises procedural and practical disadvantages. This is in comparison with the direct procedure of the Court considering natural justice issues together with other issues arising from tribunal appeals, as is more thoroughly discussed below. The consequences of the mandatory application of section 71 and rule 49(1) resulting in a two-track judicial review proceeding with all the unnecessary trappings that this entails, supports a conclusion that the Respondent’s interpretation of section 72(2)(a) is erroneous.
(b) Textual constraint
[38] The Court considers the issue to be one turning on the interpretation of the words in section 72(2)(a) requiring that “any right of appeal that may be provided by this Act is exhausted” [emphasis added]. For the reasons that follow, the Court is of the view that term “right of appeal” in section 72(2)(a) of the Act does not include what can be described as a right to reopen an appeal under rule 49(1) of the Rules.
[39] The Court’s interpretation of section 72(2)(a) would constrain the meaning of “right of appeal” to originating appeals, and exclude procedures that supplement or are derived from an ongoing appeal. Accordingly, the phrase “right of appeal” in section 72(2)(a) would exclude any right allowing appeals to be reopened or reconsidered both by section 71 of the Act in inadmissibility matters, and by rule 49(1) in refugee cases.
[40] Without the mandatory requirement of exhausting a right would mean that reopening requests would be optional. This would be consistent with the purpose of appeal reopening provisions. They provide an unsuccessful applicant with an alternative means to raise natural justice issues before undertaking a comprehensive judicial review of all issues together, which would include those concerning unfairness. As will be described below, this interpretation provides the greatest benefit if combined with a dispensation from the collateral attack rule by not requiring natural justice arguments rejected by the RAD reopening decision to be reviewed by a separate judicial review application. In the Court’s view, waiving the collateral attack rule in these circumstances would best serve Parliament’s intention of promoting both the administration and interests of justice.
(c) Contextual constraint
[41] A reopening right, by its very definition, is a right that arises after the originating right of appeal to the RAD is decided pursuant to section 111 of the IRPA. The reopening decision constitutes a distinct decision that may be subject to an application for judicial review, one that is almost always exercised by the applicant to review a negative RAD reopening request. The judicial review of the negative RAD reopening decision does not encompass the original RAD decision. It is a new process related to the narrow context of a failure of natural justice. Its advantage over the judicial review is that the RAD may proceed to decide the matter, if it concludes that the appeal should be reopened. Thus, the very concept that a post-RAD decision right exists to request a reopening of the appeal without subsuming or terminating the principal RAD decision lends credence to an interpretation that distinguishes between the two forms of appeal for the purpose of section 72(2)(a) of the Act.
[42] A further contextual consideration recognizes the similarity of purpose of a request to reopen an appeal with a right to seek a redetermination of the original decision. Both are supplementary to the initial decision-making process, and both achieve a similar purpose of providing facultative alternative routes for an applicant to raise natural justice issues, without the necessity of proceeding directly to a judicial review application. There is no logical substantive reason to distinguish therefore between redetermination of rights, and reopening of appeal rights, in terms of the purpose that each is intended to serve.
[43] Additionally and contextually in refugee matters, rules 49(7)(b) and 49(9) of the Rules would appear to support a conclusion that exercising a right to reopen the RAD appeal pursuant to rule 49(1) does not create an obstacle to proceeding to consider the natural justice issues with the other issues described in the judicial review application of the RAD decision. Rule 49(5) requires the requesting party to provide a copy of any pending application for leave to apply for judicial review or any pending application for judicial review. Rule 49(7)(b) requires the RAD to consider as a factor in deciding the reopening application whether the appellant failed to make an application for leave to apply for judicial review and the reasons why an application was not made. Further, rule 49(9) references a pending application for leave to apply for judicial review “on the same or similar grounds”, appearing to exhort the RAD to coordinate its decision in a manner that facilitates the judicial review application. The Court considers these Rules as indicative of a judicial review proceeding on the same or similar grounds regardless of any request to reopen the appeal.
(d) Constraint of the purpose of the rule 49(1) RAD appeal reopening request
[44] When speaking of the purpose of legislation, one enters the realm of policies, and often the benefits and costs of differing interpretations. It is particularly the costs, broadly defined, associated with an interpretation of rule 49(1) of the Rules, which would mandatorily route unsuccessful claims of failures of natural justice through an appeal reopening pathway to a second judicial review, that weighs against the Respondent’s submission.
[45] That is not to deny that there is some benefit to be achieved by applying section 72(2)(a) of the IRPA to section 71 or rule 49(1) when successful reopenings of appeals bring the litigation to an early end. If the reopening appeal is successful, the rule 49(1) procedure should provide a speedier and less costly outcome to the applicant’s benefit by avoiding a judicial review proceeding in the Federal Court. These benefits are reduced marginally by the offsetting resources and costs involved with the RAD procedure, although not approaching those if the judicial review application proceeds.
[46] However, any benefits of the mandatory RAD reopening procedure are appreciably outweighed by the significant downside when the reopening request is rejected, as anecdotally appears to be very much most often the case (statistics were not readily available).
[47] First, this follows from the fact that unsuccessful rule 49(1) decisions will likely engender a second judicial review application, particularly when the principal judicial review application is already proceeding on other issues where natural justice issues will be reviewed against a standard of correctness. The rejected reopening decisions will therefore most often generate a second judicial review application. The result is a multiplicity of procedures, including those necessary to have the two applications heard together. This wastes the time and resources of the parties and the Court, along with the additional costs this entails. All this is associated with an unwanted detour simply to reach the original goal of having the Federal Court review the natural justice failures, along with the applicant’s other issues, as the most appropriate forum to do so. These procedures do not advance the administration or the integrity of justice.
[48] Second, hearing the two judicial reviews at the same time on related issues raises concerns of confusion as to how best to proceed. There is notably the problem, as previously indicated, of having two differing standards of review being generally applied to the same unfairness issues. The Supreme Court of Canada has indicated a preference for courts to review issues of natural justice rather than administrative tribunals (CUPE v Ontario (Minister of Labour), 2003 SCC 29 at para 100 (“[i]t is for the courts, not the Minister, to provide the legal answer to procedural fairness questions”)). See also Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43; Mission Institution v Khela, 2014 SCC 24 at para 79; Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paras 37–56; Canada (Attorney General) v Sketchley, 2005 FCA 404 at para 53; Satkunanathan v. Canada (Citizenship and Immigration), 2020 FC 470 at para 31; Galyas v Canada (Citizenship and Immigration), 2013 FC 250 at para 27).
[49] There also appears to be unforeseen procedural and substantive concerns as to how best to conduct the combined hearings. Can either the originating or reopening appeal decision be set aside and the matter be sent back for a redetermination by another panel, terminating both judicial review proceedings? Should the Court ponder the issue of diverging standards of review in considering which judicial review to dispose of first? If commencing with the principal judicial review, is there any necessity to review the reopening decision?
(e) Brown v Canada (Citizenship and Immigration) upholding rule 49(1)
[50] As a final point, the Court is aware that its restricted interpretation of section 72(2)(a) of the Act was not adopted in the recent decision of Brown v Canada (Citizenship and Immigration), 2018 FC 1103 at para 33 [Brown]. It was the only case the Respondent could provide to support the concept that a rule 49 reopening of the appeal must be exhausted before the judicial review application can be commenced regarding the failure of natural justice.
[51] The reasoning in Brown on these issues is as follows:
[33] Third, the member also faults the applicants for not following Rule 49(7)(b). This rule requires the RAD to consider, if an applicant did not make an application for leave to apply for judicial review or an application for judicial review, the reasons why an application was not made. It is true that the applicants did not say anything in their application to re-open about why they had not applied for leave for judicial review. However, any reasonable person would recognize that such an application would have little chance of success unless and until the alternative remedy available under Rule 49 had been exhausted. The approach taken by the applicants promotes the efficient and effective use of judicial resources. While it would have been preferable if the applicants had addressed Rule 49(7)(b) in their submissions, the member’s reliance on this factor is unreasonable.
[Emphasis added.]
[52] It is noteworthy that the reopening appeal in Brown was not substantive in character, but was rather a procedural issue. The appeal was dismissed by the RAD for lack of its perfection. The Court understands that prior to this matter, corrective reopening requests were the only form of RAD reopenings normally sought by an applicant pursuant to rule 49(1) of the Rules. The distinction between corrective and what are substantive allegations of procedural failures of natural justice is significant. Substantive claims result in considerably more complex decisions and thereby more challenging judicial reviews, and do not necessarily terminate the appeal or the judicial review application without consideration of the merits of the matter in either the appeal or the judicial review of the appeal.
[53] With respect to comments made in Brown, it is contended that rules 49(5), 49(7)(b) and 49(9) of the Rules recognize that judicial review applications, including those “on the same or similar grounds” relating to allegations of natural justice unfairness, will proceed simultaneously with any application to reopen the RAD appeal. As indicated, rule 49(5) requires notice of any pending application for leave to apply for judicial review, or where leave has been granted. Rule 49(7)(b) requires, as a factor in the decision, an explanation of why there has been a failure to apply for judicial review. The RAD would likely wish to know why the appellant did not make an application for judicial review as a factor either supporting or weighing against the reopening request. Rule 49(9) appears to exhort the RAD to coordinate completion of the reopening decision with the judicial review application underway in the Federal Court, obviously not stalled pending the reopening request.
[54] For all of the foregoing reasons, the Court respectfully disagrees with the interpretation of the phrase “any right of appeal” in section 72(2)(a) of the Act as bearing any pertinence to the RAD reopening of appeal procedure under rule 49(1) of the Rules. In the Court’s view, the term “right of appeal” in section 72(2)(a) applies only to an originating appeal. It does not extend to supplementary procedures relating to the originating right of appeal. In obiter, the same conclusion would appear to apply to section 71 of the IRPA. An applicant is not required to exhaust a reopening request as a condition precedent to judicially reviewing natural justice issues together with other issues relating to the RAD decision.
[55] Alternatively, the Court adopts the Applicants’ submission that section 72(2)(a) applies to statutory appeal rights only, broadly defined to include reopening appeal requests, that are provided for in the statutory scheme of the Act, but not extending to any similar procedure established by the Rules.
B. Are the Applicants’ submissions in this application, claiming failures of natural justice, an impermissible breach of the collateral attack doctrine, given that the RAD dismissed the same submissions in the Applicants’ reopening request, which decision the Applicants did not seek to judicially review?
[56] The Applicants failed to apply to judicially review the unsuccessful RAD reopening decision. As a result, they face the Respondent’s submission that the doctrine of collateral attack applies, preventing them from advancing the same arguments in this application. The Respondent cites the unreported decision of Olah v Canada (Citizenship and Immigration) (4 November 2016), Ottawa IMM-8406-14 at paras 6–12 (FC) [Olah] in support of this submission. The applicants in that case advanced identical submissions in their judicial review application as had been unsuccessfully argued before the RPD in a redetermination procedure. The redetermination decision was not judicially reviewed. In the judicial review hearing, the Federal Court refused to hear the same submissions concluding they were an impermissible collateral attack on the RPD’s redetermination decision.
[57] In support of its decision, the Federal Court cited the Federal Court of Appeal decision in Vidéotron Télécom Ltée v Communications, Energy and Paperworkers Union of Canada, 2005 FCA 90 [Vidéotron]. In that matter, the impugned decision was the initial decision. It had been followed by a reconsideration decision wherein the applicant argued that there were errors regarding the decision maker’s interpretation of the applicable legislation. There was no attempt to judicially review the reconsideration decision. The Court concluded that the applicant’s position was limited to challenging findings in the initial decision—akin to the Respondent’s submission in the present matter.
[58] The Federal Court of Appeal outlined the appropriate procedure to follow when a related decision has been refused as follows at paragraph 14:
[14] This finding is consistent with the practice generally followed in this Court. A party asking the Board to reconsider an initial decision files a concurrent application for judicial review of the initial decision, or at least files a motion for an extension of time while awaiting the reconsideration decision. Once the reconsideration decision is rendered, the party chooses whether to challenge one or the other or both, depending on the circumstances. If both decisions are challenged, the parties may ask the Court to join the applications for judicial review for the purposes of preparing the records and the hearing.
[59] In most circumstances, such as are described in Olah and Vidéotron, courts apply the doctrine of collateral attack without question. Nevertheless, the doctrine is a judge-made creation. It therefore allows for flexibility in its application to suit situations that are inconsistent with its purpose. The teachings of the Supreme Court of Canada in Canada (Attorney General) v TeleZone Inc, 2010 SCC 62 [TeleZone] are helpful in delineating these relevant policy considerations. The relevant policies are succinctly stated at paragraphs 18 and 61 as follows:
[18] This appeal is fundamentally about access to justice. People who claim to be injured by government action should have whatever redress the legal system permits through procedures that minimize unnecessary cost and complexity. The Court’s approach should be practical and pragmatic with that objective in mind.
…
[61] The [collateral attack] rule is a judicial creation (which must therefore yield to a con