Ottawa, Ontario, June 12, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
ADNAN AZIZ SOMANI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This application for judicial review arises from a decision of the Immigration and Refugee Board (Board) dated August 30, 2005, whereby the Applicant's claims to refugee protection and as a person in need of protection were denied. That decision turned largely on adverse credibility findings, although the Board held in the alternative that the Applicant had an internal flight alternative. For the purposes of this application, nothing turns on the Board's substantive rulings because the sole issue raised in argument concerns the Board's utilization of "reverse order" questioning pursuant to the Board Chairperson's Guideline 7 (Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division). The Applicant contends that the application of that questioning protocol gave rise to a violation of the principles of natural justice and procedural fairness.
[2] It was conceded by the Applicant's present counsel at the hearing before me that the Applicant's counsel before the Board did not object to the use of reverse order questioning. He also acknowledged that the Applicant did not suffer from any vulnerability that could have justified a different order of questioning, as per section 23 Guideline 7. A review of the transcript of the Board hearing indicates, as well, that the process followed was not particularly adversarial. The Applicant's counsel was afforded and took the opportunity to question the Applicant at some length to clarify and to draw out evidence in support of the claim to relief. In short, there is nothing in the Record to indicate that the Applicant suffered any actual disadvantage by the manner in which he was questioned.
[3] The point the Applicant now makes is that the application of reverse order questioning constitutes a fettering of the Board's discretion which, by itself, renders its decision voidable. On that point, he relies heavily upon the decision of Justice Edmond Blanchard in Thamotharem v. Canada(Minister of Citizenship and Immigration), [2006] F.C.J. No. 8, 2006 FC 16. The Respondent asserts that there is no evidentiary foundation in this case to support a conclusion that the Board fettered its discretion or breached a principle of fairness and, in any event, the Applicant suffered no actual disadvantage by the Board's procedure. The Respondent relies upon the decision of Justice Richard Mosley in Benitez v. Canada(Minister of Citizenship and Immigration), [2006] F.C.J. No. 631, 2006 FC 461.
[4] It is common ground that a pragmatic and functional analysis is not required when assessing allegations of the denial of natural justice or procedural fairness. If it is found that a breach of natural justice or procedural fairness occurred, no deference is due and the Court will set aside the Board's decision: see Benitez, above, at paragraph 44.
[5] It has also been established by both Thamotharem and Benitez, above,that reverse order questioning does not, of itself, conflict with the rules of natural justice, albeit that, in some cases, fairness may dictate a different approach. What is always important is that the process adopted should not unfairly limit a person's right to fully present his or her case: see Benitez, above, at paragraphs 77 and 120 and Thamotharem, above, at paragraph 53. In this case, there is no basis for finding that the application of Guideline 7 unfairly limited the Applicant's right to fully present his case and, indeed, the Applicant makes no such suggestion.
[6] Unlike the records available in both Thamotharem and Benitez, above, in this proceeding I have no evidence with respect to the allegation of fettering by the manner in which Guideline 7 has been implemented in practice by the Board. All I have is the actual evidence placed before the Board upon which it rendered its decision on the merits. For whatever it may be worth, I agree with the conclusion reached by Justice Mosley on the record before him that no general fettering of discretion was evident (see paragraph 171). To the extent that the conclusions in Benitez, above, differ from those in Thamotharem, above, I would concur with those reached by Justice Mosley in the former decision.
[7] Finally, I agree with Justice Mosley that the failure of a party to advance a timely objection to an unfair process, including a fettering of discretion, constitutes an implied waiver. Having failed to object to the application of Guideline 7 when this case was presented to the Board, it is not now open to the Applicant to raise the issue for the first time in this forum: see Benitez, above, at paragraphs 221 and 237.
[8] In the result, I am dismissing this application for judicial review. However, given that the issues raised in this proceeding are now the subject of a pending appeal, I was asked to certify the same questions as were certified in Benitez, above, at paragraph 243. I agree and I will certify the following questions:
1. Does Guideline 7, issued under the authority of the Chairperson of the Immigration and Refugee Board, violate the principles of fundamental justice under s. 7 of the Charter of Rights and Freedoms by unduly interfering with claimants' right to be heard and right to counsel?
2. Does the implementation of paragraphs 19 and 23 of the Chairperson's Guideline 7 violate principles of natural justice?
3. Has the implementation of Guideline 7 led to fettering of Refugee Protection Division Members' discretion?
4. 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?
5. Does the role of Refugee Protection Division Members in questioning refugee claimants, as contemplated by Guideline 7, give rise to a reasonable apprehension of bias?
6. Is Guideline 7 unlawful because it is ultra vires the guideline-making authority of the Chairperson under paragraph 159(1)(h) of the Immigration and Refugee Protection Act?
7. When must an applicant raise an objection to Guideline 7 in order to be able to raise it upon judicial review?
JUDGMENT
THIS COURT ADJUDGES that this application be dismissed. This Court further adjudges that the following questions be certified:
1. Does Guideline 7, issued under the authority of the Chairperson of the Immigration and Refugee Board, violate the principles of fundamental justice under s. 7 of the Charter of Rights and Freedoms by unduly interfering with claimants' right to be heard and right to counsel?
2. Does the implementation of paragraphs 19 and 23 of the Chairperson's Guideline 7 violate principles of natural justice?
3. Has the implementation of Guideline 7 led to fettering of Refugee Protection Division Members' discretion?
4. 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?
5. Does the role of Refugee Protection Division Members in questioning refugee claimants, as contemplated by Guideline 7, give rise to a reasonable apprehension of bias?
6. Is Guideline 7 unlawful because it is ultra vires the guideline-making authority of the Chairperson under paragraph 159(1)(h) of the Immigration and Refugee Protection Act?
7. When must an applicant raise an objection to Guideline 7 in order to be able to raise it upon judicial review?
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5637-05
STYLE OF CAUSE: ADNAN AZIZ SOMANI v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
APPEARANCES:
Jonathan Otis FOR THE APPLICANT
Matina Karvellas FOR THE RESPONDENT
Mr. John Pro
SOLICITORS OF RECORD:
Otis & Korman
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT