Date: 20170727

Dockets: IMM-5045-16

IMM-5200-16

Citation: 2017 FC 728

Ottawa, Ontario, July 27, 2017

PRESENT:    The Honourable Mr. Justice Russell

Docket: IMM-5045-16

BETWEEN:

MOHSEN MOHAMMED ALHAQLI

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

Docket: IMM-5200-16

AND BETWEEN:

MOHAMMED SALIM

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

JUDGMENT AND REASONS

I.                   INTRODUCTION

[1]               This is an application under s 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] for judicial review of two decisions of case management officers at the Refugee Protection Division [RPD] of the Immigration and Refugee Board of Canada [IRB], dated November 22, 2016 and November 30, 2016 [Decisions], which cancelled the Applicants’ refugee claim hearings. Due to the factual similarities and representation by the same counsel, the applications were consolidated to be heard together.

II.                BACKGROUND

A.                Alhaqli

[2]               Mr. Alhaqli is a citizen of Yemen who resided in Saudi Arabia before entering Canada on August 11, 2016. After his arrival in Canada, he made a claim for refugee protection on October 12, 2016. His refugee claim was originally scheduled to be heard on December 6, 2016 but was later rescheduled for June 22, 2017. While waiting for the outcome of his refugee claim, Mr. Alhaqli submitted applications for a study permit and work permit on February 23, 2017 and March 13, 2017, respectively. The study permit was approved on April 12, 2017 and the work permit application is still pending.

B.                 Salim

[3]               Mr. Salim is a citizen of Syria who resided in Saudi Arabia before entering Canada on October 18, 2016. On the same day of his arrival in Canada, he made a claim for refugee protection that was scheduled to be heard on December 14, 2016 and later rescheduled for December 16, 2016 at his request. While waiting for the outcome of his refugee claim, Mr. Salim submitted an application for a work permit on November 1, 2016, which was approved on November 29, 2016. He was informed that his refugee claim was selected for expedited processing on February 16, 2017 and was found to be a Convention refugee on May 4, 2017.

III.             DECISION UNDER REVIEW

A.                Alhaqli

[4]               A decision sent from the RPD to Mr. Alhaqli by letter dated November 22, 2016 cancelled the hearing regarding his claim for refugee protection. Pursuant to the Instructions Governing the Management of Refugee Protection Claims Awaiting Front-End Security Screening [Instructions], the hearing was cancelled because the IRB had not received confirmation from the Canada Border Services Agency [CBSA] that his front-end security screening [FESS] had been completed. The letter informed Mr. Alhaqli that the hearing would be rescheduled upon confirmation that FESS had been completed. Alternatively, the hearing could also be rescheduled without the FESS completion if it had not been completed by April 12, 2017. In closing, the letter acknowledged that the delay in FESS completion did not reflect the merits of Mr. Alhaqli’s refugee claim.

B.                 Salim

[5]               A decision sent from the RPD to Mr. Salim by letter dated November 30, 2016 cancelled the hearing regarding his claim for refugee protection. Pursuant to the Instructions, the hearing was cancelled because the IRB had not received confirmation from the CBSA that his FESS had been completed. The letter informed Mr. Salim that the hearing would be rescheduled upon confirmation that FESS had been completed. Alternatively, the hearing could also be rescheduled without the FESS completion if it had not been completed by April 19, 2017. In closing, the letter acknowledged that the delay in FESS completion did not reflect the merits of the refugee claim.

IV.             ISSUES

[6]               The Applicants submit that the following are at issue in these applications:

1.      Are the issues raised justiciable?

2. Are the Instructions ultra vires insofar as they lack any legislative authority and instruct the RPD to postpone hearings in a manner that overrides the scheme set out in the IRPA and the associated Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations] and Refugee Protection Division Rules, SOR/2012-256 [Rules]?

3.      Do the Instructions create a reasonable apprehension of institutional bias such that the Decisions are unfair and unlawful?

V.                STANDARD OF REVIEW

[7]               The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 48.

[8]               True questions of jurisdiction are reviewable under the standard of correctness; however, this category is narrow and rare: Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47 at paras 24, 26 [Edmonton]. In this instance, as in Edmonton, the second issue involves the IRB Chairperson’s interpretation of a home statute in the course of carrying out the mandate of hearing and deciding refugee claims. Accordingly, no true question of jurisdiction arises and the presumption of reasonableness is not rebutted.

[9]               The third issue, regarding institutional bias and independence within the RPD, is a matter of procedural fairness that is reviewable under the correctness standard: Muhammad v Canada (Citizenship and Immigration), 2014 FC 448 at para 51; Mission Institute v Khela, 2014 SCC 24 at para 79; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43 [Khosa].

[10]           When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at para 47, and Khosa, above, at para 59. Put another way, the Court should intervene only if the Decisions were unreasonable in the sense that they fall outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

VI.             STATUTORY PROVISIONS

[11]           The following provisions from the IRPA are relevant in this proceeding:

[12]           The following provisions from the Regulations are relevant in this proceeding:

[13]           The following provisions from the Rules are relevant in this proceeding:

VII.          ARGUMENTS

A.                Applicants

(1)               Justiciability

[14]           The Applicants submit that the issues raised are justiciable.

[15]           The postponements affect the Applicants’ legal rights because Canada withholds important legal rights from refugee claimants until they have been granted refugee status. Consequently, a delay in the hearing postpones access to those legal rights.

[16]           Additionally, the sudden postponement of an important and life-altering event and subsequent indefinite waiting period causes stress that is prejudicial to the Applicants.

[17]           Moreover, the Applicants have standing to challenge the legality of the Instructions due to the negative impact on them. Accordingly, the matter is justiciable and not merely an interlocutory step in the proceedings.

(2)               Ultra Vires

[18]           The Applicants submit that the Decisions and Instructions are ultra vires because they allow RPD decision-makers to postpone refugee hearings ex proprio motu where FESS results are not received and are inconsistent with the procedures for the scheduling and postponement of refugee claims as provided in the IRPA, Regulations, and Rules.

a.       Legislative Framework

[19]           A review of the applicable legislation and Regulations demonstrates that there are specific timelines that must be adhered to in the refugee claim process. According to the IRPA, an officer has three days from receipt of the claim to refer the matter to the RPD, or the claim is deemed to be referred unless suspended or deemed ineligible. Subsection 159.9(1) of the Regulations provides that the date for the hearing of the claim must be within 30, 45, or 60 days of the claim, depending upon where the claim is made. An exception to this timeline is permissible under s 159.9(3) of the Regulations, but the hearing must be held as soon as feasible. While the IRB has flexibility to extend the timelines, the parties seeking to obtain a change of date must meet the criteria set out in ss 50 and 54 of the Rules.

[20]           Subsections 100(2)(a) and 103(1) of the IRPA allow the suspension of a refugee claim pending consideration of the claimant’s potential inadmissibility. The CBSA conducts the FESS with the Canadian Security Intelligence Service [CSIS] and informs the IRB upon completion of the FESS. In the event that the FESS is not completed, the Instructions provide that the RPD should remove the hearing from the schedule and set a new date as soon as feasible upon confirmation of the FESS completion. If the FESS results are not received within six months after the claim was referred, the hearing is rescheduled and the claim is heard unless the CBSA applies and receives a change of date. If the FESS results are pending past twelve months from the date of the referral, then a conference between all parties is convened and a hearing date may be set. In other words, the CBSA is granted an automatic, ex proprio motu postponement if it delays the FESS results for up to six months.

[21]           Moreover, the Instructions are mandatory and universal. Unlike the Chairperson Guideline 6: Scheduling and Changing the Date or Time of a Proceeding [Guidelines], which are non-binding, the Instructions are expressly mandatory, as indicated by the statement: “Members and other IRB personnel shall follow these Instructions in the processing of refugee protection claims before the Refugee Protection Division (RPD)” [emphasis added].

b.      Legislative Authority

[22]           The Applicants argue that the Instructions are not simple administrative matters; they affect the scheduling and postponement of RPD hearings, which are already governed by the IRPA, Regulations and Rules. The Instructions also allow the RPD to postpone hearings on its own initiative when FESS results are not received. Additionally, the Guidelines assume that the Instructions are mandatory, despite having no legal basis or authority to override the IRPA, Regulations, and Rules.

[23]           The Applicants submit that there is no provision in the legislation that permits the Instructions to be binding. Subsections 161(1) and 161(2) of the IRPA stipulate that rules governing the procedural aspects of hearings must be approved by the Governor-in-Council and tabled before both houses of Parliament within fifteen days. The Instructions were not adopted in this manner and are therefore not issued under the authority of s 161(1), unlike the Rules, which have the force of law.

[24]           The Federal Court of Appeal has confirmed that the IRPA provides the Chairperson with broad powers, including the issuance of guidelines and rules: Kozak v Canada (Minister of Citizenship and Immigration), 2006 FCA 124 at paras 60-61. However, s 159(1)(h) of the IRPA stipulates that guidelines must assist members in carrying out duties, but cannot fetter discretion and adjudicative discretion or override the IRPA or Regulations.

[25]           The Applicants claim that the Instructions have no legislative foundation and purport to bind all decision-makers by stating that they “shall” follow the Instructions that specify the conditions upon which hearings are automatically postponed. More importantly, the Instructions are also inconsistent with the applicable legislation and Regulations. There are clear timelines and procedures that must be followed, yet the Instructions require the RPD to ignore them by obliging the RPD to change the hearing dates without applications from either party, and without fulfilment of the conditions as required by the legislation and Regulations.

[26]           Consequently, the Instructions are ultra vires because they are not issued with legislative authority and override other legal instruments.

c.       Inconsistency

[27]           The Applicants disagree with the Respondent’s arguments that the Instructions do not require the RPD to act in a manner that is inconsistent with the IRPA or Regulations.

[28]           Subsection 159.9(3) of the Regulations sets out the grounds for changing a hearing date, but not the process, which is outlined in ss 50 and 54 of the Rules. While the RPD has the authority to fix the time and place of a hearing, as well as change the date, the RPD is not authorized to ignore the provision that sets out the criteria for which a hearing can be postponed beyond the statutory deadline. The Chairperson has the power to establish guidelines that are non-binding; the Instructions, however, are binding.

[29]           Moreover, the exceptions permit postponement in the event of a pending investigation or inquiry and the fact that FESS results have not been received does not necessarily constitute a pending investigation. In the present case, there has not been any evidence adduced that the unavailability of the FESS results means there is a pending investigation. And even where it is established that there is a pending investigation, the proper procedure for the suspension of the claim is governed by s 103 of the IRPA, which the Instructions effectively supersede.

(3)               Institutional Bias

[30]           The Applicants submit that the Decisions and Instructions breach procedural fairness because they give rise to a reasonable apprehension of institutional bias by granting the Respondent a cancellation of a refugee hearing without following the procedures for the scheduling and postponement of refugee claims as provided in the IRPA, Regulations, and Rules. As a result, the Respondent is provided preferential treatment via an automatic postponement whenever the CBSA has not performed its statutory duties in accordance with the prescribed time-frames, because the Respondent neither has to establish that the legislative and regulatory criteria for a postponement have been satisfied nor move for the relief sought.

[31]           While the duties of procedural fairness may vary depending on the function and nature of a tribunal, the adjudicative nature of an RPD hearing necessitates that the RPD’s independence must be viewed on the high end of the spectrum: Bell Canada v Canadian Telephone Employees Association, 2003 SCC 36 at para 21. Decisions are liable to be set aside for bias if a reasonable person would conclude, based on a balance of probabilities, that the decision-maker was not impartial: Restrepo Benitez v Canada (Minister of Citizenship and Immigration), 2006 FC 461 at para 6. Institutional bias is found if such a reasonable apprehension exists in a substantial number of cases: R v Lippé, [1991] 2 SCR 114.

[32]           The Applicants submit that a reasonable and well-informed person could only conclude that the IRB is not impartial because it allows the RPD to cancel hearings for refugee claims whenever the FESS results are not received, and without any written application whatsoever from the parties. The claimant must adhere to the applicable procedures governing the process of postponement, yet the Respondent is entirely exempt. The resulting disparity demonstrates an instance of institutional bias and a lack of independence on the part of the IRB.

[33]           The Applicants take the position that they do not need to establish that the RPD always cancels hearings when FESS results are not received. Their hearings were cancelled on the ground that FESS results were not received and the Instructions are explicit in mandating the RPD to always cancel hearings under such circumstances. There is no evidence adduced that the RPD ignores its own Instructions.

[34]           Additionally, the Applicants submit that whether or not the postponement favours the Respondent or affects the conduct or assessment of the hearing and claim is not dispositive. The Instructions require the RPD to respond automatically to the Respondent’s failure to act within the statutory timeframe while claimants are not afforded the same treatment. The Respondent is therefore given favourable procedural treatment via automatic relief from the failure to meet statutory deadlines. Accordingly, the Instructions compromise the RPD’s institutional independence due to the preferential treatment afforded to the Respondent.

B.                 Respondent

(1)               Applications are Barred

[35]           The Respondent submits that these applications are not properly before the Court.

[36]           First, the postponements do not affect the Applicants’ legal rights, impose legal obligations, or cause prejudice subject to judicial review. The hearings will proceed and the claims will be decided. Even if the Decisions are subject to judicial review, cancellation is an interlocutory step in an ongoing proceeding, and is therefore not subject to immediate review: Air Canada v Toronto Port Authority, 2011 FCA 347 at paras 27, 32; CB Powell Limited v Canada (Border Services Agency), 2010 FCA 61 at paras 30-33 [CB Powell]. Additionally, the Applicants have had access to other recourse that they did not take, such as an application to the RPD.

[37]           Second, the Applicants advanced their issues for the first time on leave and failed to raise them before the RPD, despite the vires of the Instructions and allegations of institutional bias being questions of law within the jurisdiction of the RPD.

(2)               Mootness

[38]           With regard to Mr. Salim, the Respondent submits that the application is moot because his claim was successful.

(3)               Intra Vires

[39]           The Respondent submits that the Instructions are intra vires. The Chairperson is empowered to issue written guidelines on any matter within his or her purview, including the procedure to be followed by the RPD in fixing the time of a hearing: ss 159(1)(h) and 159(1)(f) of the IRPA. The Instructions are also in line with how RPD hearings are scheduled and do not affect the assessment of the claim on its merits. Moreover, the Instructions are not inconsistent with the legislation, which allows exceptions to statutory deadlines where there are inquiries outstanding on potential inadmissibility. The Instructions enhance the ability to suspend RPD proceedings in such circumstances and avoid the need to nullify a RPD decision on a claim that is later found to be ineligible. Additionally, a short postponement to allow for the completion of FESS is consistent with the objectives of maintaining the integrity of the refugee protection system and protecting the security of Canadian society. The Instructions are therefore consistent with the authority of the Respondent and ensure that members work efficiently.

(4)               Institutional Bias

[40]           The Respondent also disagrees with the Applicants’ allegations of institutional bias. There is no evidence that the RPD cancels the hearing in every case where the FESS results are not received. In fact, the Decisions refer to the fact that the hearings can be rescheduled and heard even if FESS has not been confirmed by specific dates. The Instructions govern when a hearing can be scheduled or rescheduled, depending on the status of the FESS results. The Instructions do not affect the conduct of the hearing or assessment of the claim. Accordingly, an informed person would not apprehend a real likelihood of bias.

[41]           Additionally, the postponement does not automatically favour the Minister. The Minister is rarely a party to RPD proceedings except in cases of exclusion and therefore cannot obtain the judicial advantage underlying the Applicants’ claim of institutional bias.

C.                 Respondent’s Further Argument

(1)               Applications are Barred

[42]           The Respondent reiterates the position that the applications for judicial review are not properly before the Court.

a.       Reviewability

[43]           The Respondent submits that the postponement of a RPD hearing is not a matter that is the subject of judicial review. The Decisions do not constitute final decisions in relation to the refugee claim and do not affect the legal rights of the claimants; accordingly, no legal consequences flow from the postponements. The Applicants seek to challenge an administrative act or interlocutory step that is not properly the subject of judicial review.

[44]           While the Applicants frame their arguments as a jurisdictional issue, the arguments must fail. First, the Federal Court of Appeal has held that the existence of a jurisdictional issue by itself is insufficient and does not qualify as an exceptional circumstance to allow the launch of a judicial review before the administrative process is completed or the jurisdictional argument is presented to the IRB: CB Powell, above, at paras 39-46. Second, the Instructions are administrative in nature in that they deal with scheduling, internal management of advice, evidence, and communications. They do not deal with the process regarding the hearing itself. Additionally, the Applicants have not established that the RPD does not have the jurisdiction to hear the matter.

b.      Alternative Remedy

[45]           The Respondent also submits that the Applicants have failed to establish that all adequate remedial recourses in the administrative process have been exhausted. The Applicants could have challenged the Instructions before the RPD, yet they did not do so. The RPD has the authority to deal with all matters of law related to its own jurisdiction, including vires and institutional bias. Thus, the Applicants cannot advance these issues for the first time on judicial review when it was open to them to raise them before the RPD.

(2)               Mootness

[46]           The Respondent argues that the matter is moot with regards to Mr. Salim, whose refugee claim was accepted on May 4, 2017 and is now moot with regards to Mr. Alhaqli, whose refugee hearing has been set for June 22, 2017. There is no adversarial relationship that remains between the parties or consequences from the cancellation. The applications should therefore be dismissed in accordance with the doctrine of mootness: Borowski v Canada (Attorney General), [1989] 1 SCR 342 at 353, 358-359 [Borowski].

(3)               Intra Vires

a.       Background

[47]           Public safety and national security are serious concerns of the government. The refugee protection process supports the objective of protecting Canadian society and promoting international justice and security. Accordingly, the IRPA provides that a refugee claim may be suspended in the face of an ongoing investigation for inadmissibility. The Regulations outline the timelines and exceptions. The Instructions provide that the RPD will not hear a claim for up to six months from referral without FESS results. After the six month period, the hearing may proceed without the FESS results unless the CBSA applies for and is granted a change in hearing date or the Minister applies for a change in hearing date. If the FESS results are still pending after twelve months from referral, a conference may be convened between all parties to fix a date.

b.      Authority

[48]           As an administrative tribunal, the RPD has inherent authority to control its own processes, including scheduling the matters before it. The Instructions are therefore within the Chairperson’s powers to issue guidelines and instructions.

[49]           There are two ways to change a hearing date. If changed by a party, then s 54 of the Rules governs the procedure. If changed by the Chairperson, then ss 159(1)(a), (h), (f), and (g) of the Regulations govern the procedure. The two methods ensure that FESS is completed prior to the hearing and that hearings are not postponed indefinitely.

[50]           There are distinctions between instructions and guidelines. The former are administrative in nature and the latter deal with adjudicative issues that deal with the hearing itself. The Respondent argues that the Instructions are administrative in nature and do not affect the hearing itself or the processing of the claim, and are therefore not subject to the same approval process as statutory rules.

[51]           The Instructions also do not require the RPD to act in a manner inconsistent with the legislation. The Regulations mandate hearings to be held within certain timeframes, but they also provide exceptions, including cases where inquiries about potential inadmissibility are outstanding. The Instructions enhance the ability to suspend RPD proceedings and avoid the need to nullify a RPD decision that is later determined to be ineligible. Consequently, the Instructions are within the authority of the Chairperson to direct the RPD’s work and ensure that members work efficiently.

[52]           The Respondent submits that it is clear that the Chairperson has the authority to issue the Instructions under s 159.9(3)(b) of the Regulations. Parliament allows individuals to seek refugee protection in Canada, but not if they are inadmissible on certain grounds. The grounds in the s 159.9(3) exception mirror the ineligibility provisions. The exception is also clearly linked to the possibility of ongoing investigation related to FESS results.

[53]           Moreover, the Chairperson has the authority to direct the RPD to change hearing dates: s 159(1)(f) of the IRPA; s 159.9(3) of the Regulations.

[54]           As a result, the Instructions support the objectives of the IRPA by allowing the Minister an opportunity to complete an investigation while balancing the claimant’s right to an expeditious resolution of their claim. The Respondent therefore submits that the Instructions do not purport to indefinitely postpone a refugee hearing pending the receipt of the FESS results, but ensure the interests of security as well as timely resolution of the refugee claim. Accordingly, the Instructions are not intra vires.

(4)               Institutional Bias

[55]           The Respondent submits that the Applicants have not met the test for institutional bias on both evidentiary and legal grounds.

[56]           There is a two-part legal test for institutional bias, as outlined in Canadian Pacific Ltd v Matsqui Indian Band, [1995] 1 SCR 3 at para 67:

Step One: Having regard for a number of factors including, but not limited to, the potential for conflict between the interests of tribunal members and those of the parties who appear before them, will there be a reasonable apprehension of bias in the mind of a fully informed person in a substantial number of cases?

Step Two: If the answer to that question is no, allegations of an apprehension of bias cannot be brought on an institutional level, but must be dealt with on a case-by-case basis.

[57]           The RPD is held to a high standard of impartiality in its adjudicative capacity. The establishment of institutional bias requires substantial grounds for a reasonable apprehension of bias and is not related to the very sensitive or scrupulous conscience: Yukon Francophone School Board, Education Area No 23 v Yukon Territory (Attorney General), [2015] 2 SCR 282 at para 26.

[58]           The Respondent argues that the effect on the Applicants’ s 7 interests protected by the Canadian Charter of Rights and Freedoms is marginal at best. The Applicants have little evidence to support the argument that they have been adversely affected by the postponement of their hearings; indeed, Mr. Salim has received a positive determination. The Applicants had access to benefits under the Federal Interim Healthcare Program, social assistance, and the ability to apply for study and work permits. The stress alleged in their arguments is therefore no more than the normal consequences of the refugee process.

[59]           Additionally, there is no evidence to support the assertion that the RPD cancels the hearing in every case where FESS results are not received. The Instructions govern when a hearing can be scheduled or rescheduled, depending on the status of the FESS results, but they do not affect the conduct of the hearing or assessment of the claim. The Minister has the burden of applying for adjournments where the delays are outside the Instructions. Consequently, an informed person would not apprehend a real likelihood of bias flowing from the Instructions.

[60]           Furthermore, institutional bias is not demonstrated simply by the adherence to the Instructions. The legislation allows the Chairperson to issue guidelines that are mandatory in nature and Parliament can displace the level of institutional independence that fairness or natural justice dictates. In this case, Parliament has chosen to prioritize safety and security and the Instructions are a flexible administrative tool which allow the RPD to manage its inventory while respecting the rights of claimants.

[61]           Finally, the Applicants presuppose, without evidence, that postponement favours the Minister. However, the Minister is rarely a party to RPD proceedings save for exclusion cases. In the present case, the Minister cannot obtain the judicial advantage that underlies the Applicants’ claims of institutional bias.

VIII.       ANALYSIS

A.                Introduction

[62]           In order to deal with the situation where FESS results have not been received prior to the date set for a refugee hearing, the Chairperson has issued the Instructions which read as follows:

In those cases where confirmation of security screening has not been received in time for the initially scheduled hearing, the IRB will remove the hearing from the schedule and set a new date and time for the hearing as soon as feasible upon confirmation of the security screening. Parties will be advised in accordance with the process outlined in Notification.

In those cases where confirmation of security screening has not been received at six (6) months from the date of referral, the RPD will normally proceed to schedule and hear the claim unless the CBSA files an application change the date and time that is granted by the IRB. In considering such an application, the RPD will provide an opportunity to the claimant to make representations.

In those cases where the IRB grants a delay and confirmation of security screening is subsequently received, it will be rescheduled as soon as feasible.

In cases where confirmation of security screening remains pending at twelve (12) months from the date of referral, the RPD will convene a conference with the claimant, counsel and Minister’s counsel and may fix a date for a hearing.

[63]           This means that the refugee hearing is removed from the schedule and a new time and date will be set as soon as feasible upon confirmation of security screening. If the screening results have not been received six months after the claim was referred, the hearing will be rescheduled and the claim will be heard, unless the CBSA makes an application to change the date and time and such application is granted. When confirmation of security screening remains pending twelve months from the date of referral, the RPD must convene a conference with the claimant, counsel, and Minister’s counsel and may fix a date for a hearing.

[64]           The obvious purpose of the Instructions is to provide, in routine and exceptional cases, an administrative breathing space to ensure that FESS results are available before the refugee hearing occurs. This makes eminent sense because there is no point in conducting a hearing if eligibility could be an issue.

[65]           In the present case, the Applicants’ refugee hearings were postponed in accordance with the Instructions, but, in Mr. Salim’s case, his claim has now been heard and he has been granted refugee status. In Mr. Alhaqli’s case, the hearing date has now been set for June 22, 2017. In other words, the delays have not been significant.

[66]           The Applicants concede that hearings need to be rescheduled if FESS results are not obtainable in time for the original hearing date. However, they say that this cannot be done in accordance with the Instructions, which are both ultra vires the Chairperson and create a systemic bias that favours the Minister. Before addressing these issues, the present status of the Applicants and their approach to dealing with their concerns raise a number of preliminary issues that the Court must deal with.

B.                 Mootness

[67]           In Mr. Salim’s case, he has now been granted precisely what he wanted: refugee status. Why he now wishes to take issue with the delay required to ensure he was eligible is not convincingly explained.

[68]           In Mr. Alhaqli’s case, if he does not yet have everything he wants, he does have what he is entitled to: i.e. a fixed date for his hearing. If he is not granted refugee protection then he can bring any negative decision before this Court on judicial review. He does not need a declaration regarding the Instructions to do this and nor would the Instructions be an issue in such a review.

[69]           On their arrival in Canada, both Applicants had the right to have their refugee claims decided in accordance with Canadian law, to receive the support and accommodations available to those who are awaiting a hearing, and a decision for their claim. Mr. Salim’s claim has been decided on its merits and Mr. Alhaqli’s will be. The Instructions have had no impact upon the merits of either claim. The positive result in Mr. Salim’s case is evidence against any form of systemic bias in his case, and there is no reason why an apprehension of bias should appear in Mr. Alhaqli’s case which will be decided upon the merits. There is nothing to suggest that either Applicant needs the assistance of the Court at this stage, or that the declaratory relief requested could have any practical impact upon their lives.

[70]           Counsel for the Applicants has argued before me that the delays in their refugee hearings subjected the Applicants to additional stress and that the declaratory relief requested would have a practical significance for the Applicants if they decide to sue the Crown for the delays in a civil action. There is no evidence before me to suggest that the Applicants have suffered anything more than the stress inherent in coming to a new country and seeking refugee protection, and the Court is not in the business of providing declaratory judgments to parties who may decide to take civil action. And realistically, on the record before me, civil action is highly unlikely. Counsel for the Applicants has not convinced me that the postponements of the Applicants’ refugee hearings have had any real material impact upon the Applicants’ rights or their well-being.

[71]           As matters now stand, there is no live controversy between the parties and the declaratory relief sought can have no practical utility for either Applicant. In other words, these applications are moot in accordance with the principles established in Borowski, above, and again in Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62 at para 17:

17.       The doctrine of mootness reflects the principle that courts will only hear cases that will have the effect of resolving a live controversy which will or may actually affect the rights of the parties to the litigation except when the courts decide, in the exercise of their discretion, that it is nevertheless in the interest of justice that the appeal be heard (see Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at p. 353).  In our view, the instant appeal is moot.  The parties attended several reporting hearings, presented evidence and allowed the deponents of affidavits to be cross-examined. The desired effect has been achieved: the schools at issue have been built.  Restoring the validity of the trial judge’s order would have no practical effect for the litigants in this case and no further reporting sessions are necessary.

[72]           The question before me, then, is whether, in the interests of justice, I should hear and decide these applications notwithstanding that, in my view, there is no live controversy between the parties and the relief sought will have no practical effect upon the rights of the Applicants.

[73]           When deciding whether to exercise its discretion to hear and decide a moot case, the decision in Baron v Canada (Public Safety and Emergency Preparedness), 2009 FCA 81 at para 44 [Baron] provides the following guidance:

A final comment on this issue. In Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at paragraphs 29 to 42, the Supreme Court identified three factors that a court should consider in deciding whether or not to exercise its discretion to hear the merits of an action or an application for judicial review which it finds to be moot: (1) the existence of an adversarial relationship between the parties; (2) the concern for judicial economy; and (3) the need for the court not to intrude into the legislative sphere.

[74]           This Court has since applied Baron with an emphasis on judicial economy. See Singh v Canada (Public Safety and Emergency Preparedness), 2016 FC 403 at para 10:

When there is no longer any existing dispute that can have a practical impact on the parties' rights, legal recourse becomes theoretical. In such cases, three factors may be taken into account to determine whether a Court should still examine the merits: the existence of an adversarial context; judicial economy; the law-making function of the Court and not intruding into the role of the legislative branch (Borowski v. Canada (Attorney General), [1989] 1 SCR 342). Even if there was an adversarial context regarding the reasonableness of the officer's decision, judicial economy argues against exercising my judicial discretion to decide on the merit of the application, and as for the law-making function of the Federal Court, no question of law of general importance was really argued by the parties, as was the case in Baron.

[75]           The Applicants argue that the Court should decide the vires and bias issues raised, and place particular emphasis on the following:

a)      There is an adversarial relationship between the parties;

b)      The substantive issues have now been fully argued before me and the Court has the record needed to make a decision;

c)      The issues are evasive of review;

d)     If the Instructions are not declared ultra vires then refugee applicants still suffer an ongoing prejudice;

e)      There is no intrusion into the Parliamentary sphere because this is a pure rule of law issue: Has the Chairperson, in issuing the Instructions, acted beyond the powers conferred by Parliament as set out in IRPA and the Regulations?; and

f)       The issues have now been fully argued before the Court and there is no excessive expenditure involved.

[76]           I have already found that there is no live controversy between the parties and, in my view, I see no adversarial relationship as matters now stand. The Applicants chose to come to Canada and to subject themselves to whatever stresses are involved when making a refugee claim. When their hearings were postponed, the Applicants were given assurances that the delay would have no impact upon their rights to seek refugee protection and they have continued to receive the accommodation and assistance available to those involved in the refugee process. There is no evidence before me of any psychological, physical, personal or social harm suffered by the Applicants as a result of the delays in hearing their claims.

[77]           In effect, the Court is being asked to provide a legal opinion on the legality of the Instructions without any facts to suggest that a legal opinion is required at this time. In my view, such an opinion will not assist the Applicants in any way. Counsel points out that the Instructions have been used, and will be used, to postpone refugee hearings in a significant number of other cases. But there is no evidence before me to suggest that such use has caused, or will cause, harm to any applicant, will impact rights in any material way, or will affect the fair assessment of any claim on its merits. The Applicants’ arguments of systemic bias before me remain totally abstract. I have concrete evidence of a lack of bias in the fact that Mr. Salim has already been granted refugee status, notwithstanding the delay in hearing his claim as a result of the Instructions. Indeed, if the Instructions are not used, the likelihood is that any claim that comes before the RPD before the FESS results are available will have to be postponed in any event. Neither Applicant in this case has established that, but for the Instructions, their claims would have been heard on the original hearing dates.

[78]           It seems to me that the principal concern of Applicants’ counsel for other cases is that the Instructions mandate a postponement of the hearing without allowing applicants to be heard on the issue. Conceivably, this could lead to unfairness or other problems in particular cases, but it is my view that the Court should not be providing what is, in effect, a legal opinion on the validity of the Instructions unless and until a particular set of facts arises that requires such an opinion. In my view, the Court should not encourage counsel to come to Court seeking legal opinions for administrative acts without a set of facts that requires such an opinion and that provide a practical justification for the declaratory relief sought.

[79]           Applicants’ counsel believes that the Instructions are ultra vires and cause an unacceptable imbalance in the claims process that favours the Minister. In the end, this amounts to a general debate about the possible effects of an administrative instrument that is obviously intended to deal with a real problem (i.e. how to balance security and protection in a situation where the FESS results are not available in time for the hearing). There is nothing underhand about this and there is nothing before me to suggest that the Instructions are being used in any way that affects the rights of claimants.

[80]           The Court is here to adjudicate disputes, not to provide legal opinions in abstract debates and Court resources should not be used to debate the legality of inconsequential delays when there is no underlying dispute between actual parties who need an answer.

[81]           For these reasons, my conclusion is that these review applications are moot and that the Court should decline to exercise its discretion to decide the vires and systemic bias issues raised by the Applicants.

[82]           Counsel for the Applicants has submitted the following questions for certification:

1.      Are the IRB Chairperson’s Instructions Governing the Management of Refugee Protection Claims Awaiting Front-end Security Screening ultra vires?

2.      Do the Instructions Governing the Management of Refugee Protection Claims Awaiting Front-end Security Screening create a reasonable apprehension of institutional bias?

[83]           Counsel for the Respondent has submitted the following questions for certification:

1.      Are the Chairperson’s Instructions Governing the Management of Refugee Protection Claims Awaiting Front-end Security Screening authorized pursuant to s. 159(1) of the Immigration and Refugee Protection Act and ss. 159(3) of the Immigration and Refugee Protection Regulations?

2.      Do the Chairperson’s Instructions Governing the Management of Refugee Protection Claims Awaiting Front-end Security Screening give rise to reasonable apprehension of bias?

[84]           In Zaghbib v Canada (Public Safety and Emergency Preparedness), 2016 FCA 182 at paras 55-56, Justice Pelletier stated, in regards to certified questions:

The jurisprudence of this Court is clear that it has no jurisdiction to hear an appeal unless there is a legitimate certified question before it. A legitimate certified question is one which was dealt with in the Federal Court’s reasons and which is dispositive of the appeal: see Zaza v. Canada (Minister of Citizenship and Immigration), 2004 FCA 89, [2004] F.C.J. No. 368, at paragraph 12; Canada (Minister of Citizenship and Immigration) v. Varela, 2009 FCA 145, [2010] 1 F.C.R. 129 at paragraph 43; O'Brien v. Canada (Minister of Citizenship and Immigration), 2016 FCA 159, [2016] F.C.J. No. 567, at paragraph 8.

The certified question in this case did not arise on the facts because at the time the case was heard, a decision had been made even though the Minister, for reasons best known to him, proceeded as though none had. Furthermore, the Federal Court dealt with Mr. Zaghbib’s application as one based on delay: “...he is not owed any duty of investigation by the CBSA in the time frame he experienced”: see Decision, at paragraph 29. The right to an investigation of a complaint of marriage fraud by a private citizen qua citizen was not dealt with.

[emphasis added]

[85]           Given my conclusions on mootness, these questions cannot be certified as they have neither been dealt with in this application nor would they be dispositive on appeal since the applications have been dismissed for mootness.

JUDGMENT IN IMM-5045-16 AND IMM-5200-16

THIS COURT’S JUDGMENT is that:

1.         These applications are dismissed; and

2.         There is no question for certification.

3.         A copy of this Judgment and Reasons shall be placed on each file.

“James Russell”

 

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	IMM-5045-16
STYLE OF CAUSE:	MOHSEN MOHAMMED ALHAQLI v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
DOCKET:	IMM-5200-16
STYLE OF CAUSE:	MOHAMMAD SALIM v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:	Toronto, Ontario
DATE OF HEARING:	JUNE 1, 2017
JUDGMENT AND REASONS:	RUSSELL J.
DATED:	JULY 27, 2017

APPEARANCES:

Jared Will	For The Applicants
Alexis Singer Gordon Lee	For The Respondent

SOLICITORS OF RECORD:

Jared Will & Associates Toronto, Ontario	For The Applicants
Attorney General of Canada Toronto, Ontario	For The Respondent