Canada (Citizenship and Immigration) v. Thamotharem

Canada (Citizenship and Immigration) v. Thamotharem
Court (s) Database
Federal Court of Appeal Decisions
Date
2007-05-25
Neutral citation
2007 FCA 198
File numbers
A-38-06
Notes
Reported Decision
Decision Content
Date: 20070525
Docket: A-38-06
Citation: 2007 FCA 198
CORAM: DÉCARY J.A.
SHARLOW J.A.
EVANS J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
and
DANIEL THAMOTHAREM
Respondent
and
THE CANADIAN COUNCIL FOR REFUGEES and
THE IMMIGRATION REFUGEE BOARD
Interveners
Heard at Toronto, Ontario, on April 16, 2007.
Judgment delivered at Ottawa, Ontario, on May 25, 2007.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: DÉCARY J.A.
CONCURRING REASONS BY: SHARLOW J.A.
Date: 20070525
Docket: A-38-06
Citation: 2007 FCA 198
CORAM: DÉCARY J.A.
SHARLOW J.A.
EVANS J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
and
DANIEL THAMOTHAREM
Respondent
and
THE CANADIAN COUNCIL FOR REFUGEES and
THE IMMIGRATION REFUGEE BOARD
Interveners
REASONS FOR JUDGMENT
EVANS J.A.
A. INTRODUCTION
[1] The Chairperson of the Immigration and Refugee Board (“the Board”) has broad statutory powers to issue both guidelines and rules. Rules have to be approved by the Governor in Council and laid before Parliament, but guidelines do not.
[2] This appeal concerns the validity of Guideline 7 (Preparation and Conduct of a Hearing in the Refugee Protection Division), issued in 2003 by the Chairperson of the Board pursuant to the statutory power to “issue guidelines … to assist members in carrying out their duties”: Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”), paragraph 159(1)(h). The key paragraphs of Guideline 7 provide as follows: “In a claim for refugee protection, the standard practice will be for the R[efugee] P[rotection] O[fficer] to start questioning the claimant” (para. 19), although the member of the Refugee Protection Division (“RPD”) hearing the claim “may vary the order of questioning in exceptional circumstances” (para. 23).
[3] The validity of Guideline 7 is challenged on two principal grounds. First, it deprives refugee claimants of the right to a fair hearing by denying them the opportunity to be questioned first by their own counsel. Second, even if Guideline 7 does not prescribe a hearing that is in breach of the duty of fairness, the Chairperson should have introduced the new standard order of questioning as a rule of procedure under IRPA, paragraph 161(1)(a), not as a guideline under IRPA, paragraph 159(1)(h). Guideline 7 is not valid as a guideline because paragraphs 19 and 23 unlawfully fetter the discretion of members of the RPD to determine the appropriate order of questioning when hearing refugee protection claims.
[4] This is an appeal by the Minister of Citizenship and Immigration from a decision by Justice Blanchard of the Federal Court granting an application for judicial review by Daniel Thamotharem to set aside a decision by the RPD dismissing his claim for refugee protection: Thamotharem v. Canada (Minister of Citizenship and Immigration), 2006 FC 16, [2006] 3 F.C.R. 168.
[5] Justice Blanchard held that Guideline 7 is an unlawful fetter on the exercise of discretion by individual RPD members to determine the order of questioning at a hearing, in the absence of a provision in either IRPA or the Refugee Protection Division Rules, SOR/2002-228, dealing with this aspect of refugee protection hearings. He remitted Mr Thamotharem’s refugee claim to be determined by a different member of the RPD on the basis that Guideline 7 is an invalid fetter on the exercise of decision-makers’ discretion.
[6] However, Justice Blanchard rejected Mr Thamotharem’s argument that Guideline 7 is invalid because it deprives refugee claimants of the right to a fair hearing, and distorts the “judicial” role of the member hearing the claim. Mr Thamotharem has cross-appealed this finding.
[7] The Judge certified the following questions for appeal pursuant to paragraph 74(d) of IRPA.
1. Does the implementation of paragraphs 19 and 23 of the Chairperson’s Guideline 7 violate principles of natural justice by unduly interfering with claimants’ right to be heard?
2. Has the implementation of Guideline 7 led to fettering of Board Members’ discretion?
3. Does a finding that Guideline 7 fetters a Refugee Protection Division Member’s discretion necessarily mean that the application for judicial review must be granted, without regard to whether or not the applicant was otherwise afforded procedural fairness in the particular case or whether there was an alternate basis for rejecting the claim?
[8] Immediately after hearing the Minister’s appeal in Thamotharem, we heard appeals by unsuccessful refugee claimants challenging the validity of Guideline 7 and, in some of the cases, impugning on other grounds the dismissal of their claim. In the Federal Court, 19 applications for judicial review concerning Guideline 7 were consolidated. Justice Mosley’s decision on the Guideline 7 issue is reported as Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 461, [2007] 1 F.C.R. 107. The appeals from these decisions were also consolidated, Benitez being designated the lead case.
[9] In Benitez, Justice Mosley agreed with the conclusions of Justice Blanchard on all issues, except one: he held that Guideline 7 was not an unlawful fetter on the discretion of Board members because its text permitted them to allow the claimant’s counsel to question first, as, in fact, some had.
[10] For substantially the reasons that they gave, I agree with both Justices that Guideline 7 is not, on its face, invalid on the ground of procedural unfairness, although, as the Minister and the Board conceded, fairness may require that, in certain circumstances, particular claimants should be questioned first by their own counsel. I also agree that Guideline 7 is not incompatible with the impartiality required of a member when conducting a hearing which is inquisitorial in form.
[11] However, in my opinion, Guideline 7 is not an unlawful fetter on the exercise of members’ discretion on the conduct of refugee protection hearings. The Guideline expressly directs members to consider the facts of the particular case before them to determine whether there are exceptional circumstances warranting a deviation from the standard order of questioning. The evidence does not establish that members disregard this aspect of Guideline 7 and slavishly adhere to the standard order of questioning, regardless of the facts of the case before them. Accordingly, I agree with Justice Mosley on this issue, and must respectfully disagree with Justice Blanchard.
[12] Nor does it follow from the fact that Guideline 7 could have been issued as a statutory rule of procedure that it is invalid because it was not approved by the Governor in Council. In my opinion, the Chairperson’s rule-making power does not invalidate Guideline 7 by impliedly excluding from the broad statutory power to issue guidelines “to assist members in carrying out their duties” changes to the procedure of any of the Board’s Divisions.
[13] Accordingly, I would allow the Minister’s appeal, and dismiss Mr Thamotharem’s cross- appeal and his application for judicial review. Although separate reasons are given in Benitez (2007 FCA 199) dealing with issues not raised in Mr Thamotharem’s appeal, a copy of the reasons in the present appeal will also be inserted in Court File No. A-164-06 (Benitez) and the files of the appeals consolidated with it.
B. FACTUAL BACKGROUND
(i) Mr Thamotharem’s refugee claim
[14] Mr Thamotharem is Tamil and a citizen of Sri Lanka. He entered Canada in September 2002 on a student visa. In January 2004, he made a claim for refugee protection in Canada, since he feared that, if forced to return to Sri Lanka, he would be persecuted by the Liberation Tigers of Tamil Eelam.
[15] In written submissions to the RPD before his hearing, Mr Thamotharem objected to the application of Guideline 7, on the ground that it deprives refugee claimants of their right to a fair hearing. He did not argue that, on the facts of his case, he would be denied a fair hearing if he were questioned first by the Refugee Protection Officer (“RPO”) and/or the member conducting the hearing. There was no evidence that Mr Thamotharem suffered from post-trauma stress disorder, or was otherwise particularly vulnerable.
[16] At the hearing of the claim before the RPD, the RPO questioned Mr Thamotharem first. The RPD held that the duty of fairness does not require that refugee claimants always have the right to be questioned first by their counsel and that the application of Guideline 7 does not breach Mr Thamotharem’s right to procedural fairness.
[17] In a decision dated August 20, 2004, the RPD dismissed Mr Thamotharem’s refugee claim and found him not to be a person in need of protection. It based its decision on documentary evidence of improved country conditions for Tamils in Sri Lanka, and on the absence of reliable evidence that Mr Thamotharem would be persecuted as a perceived member of a political group or would, for the first time, become the target of extortion.
[18] In his application for judicial review, Mr Thamotharem challenged this decision on the ground that Guideline 7 was invalid, and that the RPD had made a reviewable error in its determination of the merits of his claim. As already noted, Mr Thamotharem’s application for judicial review was granted, the RPD’s decision set aside and the matter remitted to another member for re-determination on the basis that Guideline 7 is an invalid fetter on the RPD’s discretion in the conduct of the hearing. In responding in this Court to the Minister’s appeal, Mr. Thamotharem did not argue that, even if Guideline 7 is valid, Justice Blanchard was correct to remit the matter to the RPD because it committed a reviewable error in determining the merits of the claim.
(ii) Guideline 7
[19] Before the Chairperson issued Guideline 7, the order of questioning was within the discretion of individual members; neither IRPA, nor the Refugee Protection Division Rules, addressed it. Refugee protection claims are normally determined by a single member of the RPD. The evidence indicated that, before the issue of Guideline 7, practice on the order of questioning was not uniform across Canada. Members sitting in Toronto and, possibly, in Vancouver and Calgary, permitted claimants to be “examined in chief” by their counsel before being questioned by the RPO and/or the member. In Montreal and Ottawa, on the other hand, the practice seems to have been that the member or the RPO questioned the claimant first, although a request by counsel for a claimant to question first seems generally to have been granted.
[20] It is not surprising that the Board did not regard it as satisfactory that the order of questioning was left to be decided by individual members on an ad hoc basis, with variations among regions, and among members within a region. Claimants are entitled to expect essentially the same procedure to be followed at an RPD hearing, regardless of where or by whom the hearing is conducted.
[21] There was also a view that refugee protection hearings would be more expeditious if claimants were generally questioned first by the RPO or the member, thus dispensing with the often lengthy and unfocussed examination-in-chief of claimants by their counsel. The backlog of refugee determinations has been a major problem for the Board. For example, from 1997-98 to 2001-02 the number of claims referred for determination each year increased steadily from more than 23,000 to over 45,000, while, in the same period, the backlog of claims referred but not decided grew from more than 27,000 to nearly 49,000: Canada, Immigration and Refugee Board, Performance Report, for the period ending March 31, 2004.
[22] Studies were undertaken to find ways of tackling this problem. For example, in a relatively early report, Rebuilding Trust: Report of the Review of Fundamental Justice in Information Gathering and Dissemination at the Immigration and Refugee Board of Canada (Ottawa: Immigration and Refugee Board, 1993), refugee law scholar, Professor James C. Hathaway, made many recommendations designed to make the Board’s determination of refugee claims more effective, expeditious, and efficient. The following passage from the Report (at 74) is particularly relevant to the present appeal.
The present practice of an introductory “examination in chief” by counsel should be dispensed with, the sworn testimony in the Application for Refugee Status being presumed to be true unless explicitly put in issue. Panel members should initially set out clearly the substantive matters into which they wish to inquire, and explain any concerns they may have about the sufficiency of documentary evidence presented. Members should assume primary responsibility to formulate the necessary questions, although they should feel free to invite counsel to adduce testimony in regard to matters of concern to them. Once the panel has concluded its questioning, it should allow the Minister’s representative, if present, an opportunity to question or call evidence, ensuring that the tenor of the Ministerial intervention is not allowed to detract from the non-adversarial nature of the hearing. Following a brief recess, the panel should outline clearly on the record which matters it views as still in issue, generally using the Conference Report as its guide. Any matters not stated by the panel to be topics of continuing concern should be deemed to be no longer in issue. Counsel would then be invited to elicit testimony, call witnesses, and make submissions as adjudged appropriate, keeping in mind that all additional evidence must be directed to a matter which remains in issue. [footnotes omitted]
[23] Starting in 1999, the Board worked to develop what became Guideline 7, which was finally issued in October 31, 2003, as part of an action plan to reduce the backlog on the refugee side by increasing the efficiency of its decision-making process. In addition to the order of questioning provisions in dispute in this case, Guideline 7 also deals with the early identification of issues and disclosure of documents, procedures when a claimant is late or fails to appear, informal pre-hearing conferences, and the administration of oaths and affirmations.
[24] In addition to the consultations with the Deputy Chairperson and the Director General of the Immigration Division mandated by paragraph 159(1)(h) before the Chairperson issues a guideline, the Board held consultations on the proposed Guideline with members of the Bar and other “stakeholders”. Some, however, including the Canadian Council for Refugees, an intervener in this appeal, regarded the consultations as less than meaningful, while others characterized Guideline 7 as an overly “top-down” initiative by senior management of the Board. On the basis of the material before us, I am unable to comment on either of these observations.
[25] From December 1, 2003, the implementation of Guideline 7 was gradually phased in, becoming fully operational across the country by June 1, 2004. Like other guidelines issued by the Chairperson, Guideline 7 was published.
C. LEGISLATIVE FRAMEWORK
(i) IRPA
[26] IRPA confers on the Chairperson of the Board broad powers over the management of each Division of the Board, including a power to issue guidelines.
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
(a) has supervision over and direction of the work and staff of the Board;
…
(g) takes any action that may be necessary to ensure that the members of the Board carry out their duties efficiently and without undue delay;
(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;
…
159. (1) Le président est le premier dirigeant de la Commission ainsi que membre d’office des quatre sections; à ce titre :
a) il assure la direction et contrôle la gestion des activités et du personnel de la Commission;
[…]
g) il prend les mesures nécessaires pour que les commissaires remplissent leurs fonctions avec diligence et efficacité;
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;
[…]
[27] IRPA also empowers the Chairperson of the Board to make rules for each of the three Divisions of Board. The rules, however, must be approved by the Governor in Council, and laid before Parliament.
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.
(2) The Minister shall cause a copy of any rule made under subsection (1) to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the approval of the rule by the Governor in Council.
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.
(2) Le ministre fait déposer le texte des règles devant chacune des chambres du Parlement dans les quinze premiers jours de séance de celle-ci suivant leur agrément par le gouverneur en conseil.
[28] IRPA emphasises the importance of informality, promptness and fairness in the Board’s proceedings.
162. (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.
162. (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.
[29] In keeping with the inquisitorial nature of the RPD’s process, IRPA confers broad discretion on members in their conduct of a hearing.
165. The Refugee Protection Division and the Immigration Division and each member of those Divisions have the powers and authority of a commissioner appointed under Part I of the Inquiries Act and may do any other thing they consider necessary to provide a full and proper hearing.
165. La Section de la protection des réfugiés et la Section de l’immigration et chacun de ses commissaires sont investis des pouvoirs d’un commissaire nommé aux termes de la partie I de la Loi sur les enquêtes et peuvent prendre les mesures que ceux-ci jugent utiles à la procédure.
[30] Part I of the Inquiries Act, R.S.C. 1985, c. I-11, empowers commissioners of inquiry as follows:
4. The commissioners have the power of summoning before them any witnesses, and of requiring them to
(a) give evidence, orally or in writing, and on oath or, if they are persons entitled to affirm in civil matters on solemn affirmation; and
(b) produce such documents and things as the commissioners deem requisite to the full investigation of the matters into which they are appointed to examine.
5. The commissioners have the same power to enforce the attendance of witnesses and to compel them to give evidence as is vested in any court of record in civil cases.
4. Les commissaires ont le pouvoir d’assigner devant eux des témoins et de leur enjoindre de :
a) déposer oralement ou par écrit sous la foi du serment, ou d’une affirmation solennelle si ceux-ci en ont le droit en matière civile;
b) produire les documents et autres pièces qu’ils jugent nécessaires en vue de procéder d’une manière approfondie à l’enquête dont ils sont chargés.
5. Les commissaires ont, pour contraindre les témoins à comparaître et à déposer, les pouvoirs d’une cour d’archives en matière civile.
[31] The following provisions of IRPA respecting the decision-making process of the RPD are also relevant.
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;
…
(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;
…
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;
[…]
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;
[…]
(ii) Guideline 7
[32] Paragraphs 19 and 23 of Guideline 7, issued by the Chairperson under IRPA, paragraph 159(1)(h), are of immediate relevance in this appeal, while paragraphs 20-22 provide context.
19. In a claim for refugee protection, the standard practice will be for the 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. 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.
20. In a claim for refugee protection where the Minister intervenes on an issue other than exclusion, for example, on a credibility issue, the RPO starts the questioning. If there is no RPO at the hearing, the member will start the questioning, followed by the Minister's counsel and then counsel for the claimant.
21. In proceedings where the Minister intervenes on the issue of exclusion, Minister's counsel will start the questioning, followed by the RPO, the member, and counsel for the claimant. Where the Minister's counsel requests another chance to question at the end, the member will allow it if the member is satisfied that new matters were raised during questioning by the other participants.
22. In proceedings where the Minister is making an application to vacate or to cease refugee protection, Minister's counsel will start the questioning, followed by the member, and counsel for the protected person. Where the Minister's counsel requests another chance to question at the end, the member will allow it if the member is satisfied that new matters were raised during questioning by the other participants.
23. The member may vary the order of questioning in exceptional circumstances. For example, a severely disturbed claimant or a very young child might feel too intimidated by an unfamiliar examiner to be able to understand and properly answer questions. In such circumstances, the member could decide that it would be better for counsel for the claimant to start the questioning. A party who believes that exceptional circumstances exist must make an application to change the order of questioning before the hearing. The application has to be made according to the RPD Rules.
19. Dans toute demande d'asile, c'est généralement l'APR qui commence à interroger le demandeur d'asile. En l'absence d'un APR à l'audience, le commissaire commence l'interrogatoire et est suivi par le conseil du demandeur d'asile. Cette façon de procéder permet ainsi au demandeur d'asile de connaître rapidement les éléments de preuve qu'il doit présenter au commissaire pour établir le bien-fondé de son cas.
20. Dans les demandes d'asile où l'intervention du ministre porte sur une question autre que l'exclusion, la crédibilité par exemple, l'APR commence l'interrogatoire. En l'absence d'un APR à l'audience, le commissaire commence l'interrogatoire; viennent ensuite le conseil du ministre puis le conseil du demandeur d'asile.
21. Dans les demandes où l'intervention du ministre porte sur la question de l'exclusion, le conseil du ministre interroge d'abord le demandeur d'asile; il est suivi de l'APR, du commissaire, puis du conseil du demandeur d'asile. Le commissaire donne au conseil du ministre la possibilité de ré-interroger le témoin à la fin de l'audience s'il est convaincu que les interrogatoires par les autres participants ont soulevé de nouvelles questions.
22. Dans les demandes d’annulation ou de constat de perte d’asile présentées par le ministre, le conseil du ministre commence l’interrogatoire; il est suivi du commissaire, puis du conseil de la personne protégée. Le commissaire donne au conseil du ministre la possibilité de ré-interroger le témoin à la fin de l’audience s’il est convaincu que les interrogatoires par les autres participants ont soulevé de nouvelles questions.
23. Le commissaire peut changer l'ordre des interrogatoires dans des circonstances exceptionnelles. Par exemple, la présence d'un examinateur inconnu peut intimider un demandeur d'asile très perturbé ou un très jeune enfant au point qu'il n'est pas en mesure de comprendre les questions ni d'y répondre convenablement. Dans de telles circonstances, le commissaire peut décider de permettre au conseil du demandeur de commencer l'interrogatoire. La partie qui estime que de telles circonstances exceptionnelles existent doit soumettre une demande en vue de changer l'ordre des interrogatoires avant l'audience. La demande est faite conformément aux Règles de la SPR.
D. ISSUES AND ANALYSIS
Issue 1: Standard of review
[33] The questions of law raised in this appeal about the validity of Guideline 7 are reviewable on a standard of correctness: they concern procedural fairness, statutory interpretation, and the unlawful fettering of discretion. The exercise of discretion by the Chairperson to choose a guideline rather than a formal rule as the legal instrument for amending the procedure of any of the Board’s Divisions by is reviewable for patent unreasonableness.
Issue 2: Does Guideline 7 prescribe a hearing procedure that is in breach of claimants’ right to procedural fairness?
[34] Justice Blanchard dealt thoroughly with this issue at paras. 36-92 of his reasons. He concluded that the jurisprudence did not require that, as a matter of fairness, claimants always be given the opportunity to be questioned first by their counsel (at paras. 38-53). He then considered (at paras. 68-90) the criteria set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras. 21-28 (“Baker”), for determining where to locate refugee protection hearings on the procedural spectrum from the informal to the judicial. Largely on the basis of the adjudicative nature of the RPD’s functions, the finality of its decision, and the importance of the individual rights at stake, he concluded (at para. 75) that “a higher level of procedural protection is warranted”.
[35] However, recognizing also that the content of the duty of fairness varies with context, Justice Blanchard noted that Parliament had chosen an inquisitorial procedural model for the determination of refugee claims by the RPD, in the sense that there is no party opposing the claim, except in the rare cases when the Minister intervenes to oppose a claim on exclusion grounds. Consequently, in the overwhelming majority of cases, the task of probing the legitimacy of claims inevitably falls to the RPO, who questions the claimant on behalf of the member, and/or to the member of the RPD conducting the hearing, especially when no RPO is present. This is an important reason for concluding that not all the elements of the adversarial procedural model followed in the courts are necessarily required for a fair hearing of a refugee claim: see paras. 72-75.
[36] Justice Blanchard also acknowledged that claimants may derive tactical advantages from being taken through their story by their own lawyer before being subjected to questioning by the RPO, who will typically focus on inconsistencies, gaps, and improbabilities in the narrative found in the claimant’s personal information form (“PIF”) and any supporting documentation, as well as any legal weaknesses in the claim. The tactical advantage of questioning first may be particularly significant in refugee hearings because of the vulnerability and anxiety of many claimants, as a result of: their inability to communicate except through an interpreter; their cultural backgrounds; the importance for them of the RPD’s ultimate decision; and the psychological effects of the harrowing events experienced in their country of origin.
[37] Nonetheless, Justice Blanchard concluded that these considerations do not necessarily rise to the level of unfairness. Indeed, in addition to shortening the hearing, questioning by the RPO may also serve to improve the quality of the hearing by focusing it and enabling a claimant’s counsel to make sure that aspects of the claim troubling the member are fully dealt with when the claimant comes to tell his or her story. Consequently, in order to be afforded their right to procedural fairness, claimants need not normally be given the opportunity to be questioned by their counsel before being questioned by the RPO and/or RPD member.
[38] Justice Blanchard noted, for example, that RPD members receive training to sensitize them to the accommodations needed when questioning vulnerable claimants, that claimants may supplement or modify the information in their PIF and adduce evidence before the hearing, and that expert evidence indicated that vulnerable claimants’ ability to answer questions fully, correctly and clearly is likely to depend more on the tone and style of questioning than on the order in which it occurs.
[39] Moreover, the duty of fairness forbids members from questioning in an overly aggressive and badgering manner, or in a way that otherwise gives rise to a reasonable apprehension of bias. Fairness also requires that claimants be given an adequate opportunity to tell their story in full, to adduce evidence in support of their claim, and to make submissions relevant to it. To this end, fairness may also require that, in certain circumstances, a claimant be afforded the right to be questioned first by her or his counsel. In addition, Guideline 7 recognizes that there will be exceptional cases in which, even though not necessarily required by the duty of fairness, it will be appropriate for the RPD to depart from the standard order of questioning.
[40] I agree with Justice Blanchard’s conclusion on this issue and have little useful to add to his reasons. Before us, counsel did not identify any error of principle in the Applications Judge’s analysis nor produce any binding judicial authority for the proposition that it is a breach of the duty of fairness to deny claimants the right to be questioned first by their own counsel. Criticisms were directed more to the weight that Justice Blanchard gave to some of the evidence and the factors to be considered. I can summarize as follows the principal points made in this Court by counsel.
[41] First, the importance of the individual rights potentially at stake in refugee protection proceedings indicates a court-like hearing, in which the party with the burden of proof goes first: see, for example, Can-Am Realty Ltd. v. Canada (1993), 69 F.T.R. 63 at 63-64. I agree at a general level that the seriousness of the rights involved in the determination of a refugee claim, as well as the generally “judicial” character of the oral hearings held by the RPD, militate in favour of affording claimants a high degree of procedural protection. However, its details must also be tailored to fit the inquisitorial and relatively informal nature of the hearing established by Parliament, as well as the RPD’s high volume case load, considerations which reduce the power of the claim to aspects of the adversarial model used in courts, including the order of questioning.
[42] Second, the procedure set out in Guideline 7 is derived from the erroneous notion that the RPD is a board of inquiry, not an adjudicator. Unlike those appearing at inquiries, refugee claimants have the burden of proving a claim, which the RPD adjudicates.
[43] I do not agree. The Board correctly recognizes that the RPD’s procedural model is more inquisitorial in nature, unlike that of the Immigration Appeal Division (Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84 at para. 82). I cannot conclude on the basis of the evidence as a whole that the Board adopted the standard order of questioning in the mistaken view that the RPD is a board of inquiry, even though it decides claimants’ legal rights in the cases which they bring to it for adjudication and claimants bear the burden of proof. This conclusion is not undermined by a training document (“Questioning 101”), prepared by the Board’s Professional Development Branch in 2004 for members and RPOs, which contains a somewhat misleading reference to the compatibility of the standard order of questioning with “a board of inquiry model”.
[44] A relatively inquisitorial procedural form may reduce the degree of control over the process often exercisable by counsel in adversarial proceedings, especially before inexperienced tribunal members or those who lack the confidence that legal training can give. Nonetheless, the fair adjudication of individual rights is perfectly compatible with an inquisitorial process, where the order of questioning is not as obvious as it generally is in an adversarial hearing.
[45] Third, placing RPD members in the position of asking the claimant questions first, when no RPD is present, distorts their judicial role by thrusting them into the fray, thereby creating a reasonable apprehension of bias by making them appear to be acting as both judge and prosecutor. Guideline 7 is particularly burdensome for members now that panels normally comprise a single member, and there is often no RPO present to assume the primary responsibility for questioning the claimant on behalf of the Board.
[46] I disagree. Adjudicators can and should normally play a relatively passive role in an adversarial process, because the parties are largely responsible for adducing the evidence and arguments on which the adjudicator must decide the dispute. In contrast, members of the RPD, sometimes assisted by an RPO, do not have this luxury. In the absence in most cases of a party to oppose the claim, members are responsible for making the inquiries necessary, including questioning the claimant, to determine the validity of the claim: see IRPA, paragraph 170(a); Sivisamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741 (T.D.) at 757-78; Shahib v. Canada (Minister of Citizenship and Immigration), 2005 FC 1250 at para. 21. The fact that the member or the RPO may ask probing questions does not make the proceeding adversarial in the procedural sense.
[47] To the extent that statements in Rajaratnam v. Canada (Minister of Employment and Immigration) (1991), 135 N.R. 300 (F.C.A.), suggest that a member of the RPD hearing a refugee claim is restricted to asking the kind of questions that a judge in a civil or criminal proceeding may ask, they are, in my respectful opinion, incorrect, especially when no RPO is present.
[48] The fact that members question the claimant first when there is no RPO present does not distort the inquisitorial process established by IRPA and would not give rise to a reasonable apprehension of bias on the part of a person who was informed of the facts and had thought the matter through in a practical manner. Inquisitorial processes of adjudication are not unfair simply because they are relatively unfamiliar to common lawyers.
[49] Fourth, Guideline 7 interferes with claimants’ right to the assistance of counsel because it prevents them from being taken through their story by their counsel before being subject to the typically more sceptical questioning by the RPO. I do not agree. Guideline 7 does not curtail counsel’s participation in the hearing; counsel is present throughout and may conduct an examination of the client to ensure that the claimant’s testimony is before the decision-maker. The right to be represented by counsel does not include the right of counsel to determine the order of questioning or, for that matter, any other aspect of the procedure to be followed at the hearing.
[50] Finally, no statistical evidence was adduced to support the allegation that Guideline 7 jeopardizes the ability of the RPD accurately to determine claims for refugee protection. There is simply no evidence to establish what impact, if any, the introduction of Guideline 7 has had on acceptance rates.
[51] In summary, the procedure prescribed by Guideline 7 is not, on its face, in breach of the Board’s duty of fairness. However, in some circumstances, fairness may require a departure from the standard order of questioning. In those circumstances, a member’s refusal of a request that the claimant be questioned first by her counsel may render the determination of the claim invalid for breach of the duty of fairness.
[52] Consequently, if the Chairperson had implemented the reform to the standard order of questioning at refugee determination hearings in a formal rule of procedure issued in accordance with paragraph 161(1)(a), it would have been beyond challenge on the grounds advanced in this appeal respecting the duty of fairness, including bias. The somewhat technical question remaining is whether the Chairperson’s choice of legislative instrument (that is, a guideline rather than a formal rule of procedure) to implement the procedural change was in law open to him.
Issue 3: Is Guideline 7 unauthorized by paragraph 159(1)(h) because it is a fetter on RPD members’ exercise of discretion in the conduct of hearings?
[53] As already noted, Justice Blanchard and, in Benitez, Justice Mosley, reached different conclusions on whether Guideline 7 unlawfully fettered the discretion of members of the RPD in deciding the order of questioning at a refugee determination hearing. The records in the two applications were not identical. In particular, there was more evidence before Justice Mosley, comprising some forty decisions and excerpts from transcripts of RPD hearings, that RPD members are willing to recognize exceptional cases in which it is appropriate to depart from the standard order of questioning.
[54] In the circumstances of these appeals, it is appropriate to consider all the evidence before both judges. From a practical