Aloulou et al. v. Canada (Minister of Citizenship and Immigration)

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Federal Court (Canada)
• Judge: LeBlanc, J.
• Citation: (2014), 470 F.T.R. 303 (FC),2014 FC 1236
• Date: 27 August 2014

Aloulou v. Can. (M.C.I.) (2014), 470 F.T.R. 303 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] F.T.R. TBEd. JA.029

Lamia Aloulou and Hamdi Batri (demandeurs) v. Le Ministre de la Citoyenneté et de l'Immigration (défendeur)

(IMM-7949-13; 2014 CF 1236; 2014 FC 1236)

Indexed As: Aloulou et al. v. Canada (Minister of Citizenship and Immigration)

Federal Court

LeBlanc, J.

December 19, 2014.

Summary:

A mother and her son (the applicants), citizens of Tunisia, claimed refugee protection. The Refugee Protection Division (RPD) of the Immigration and Refugee Board rejected the claim. The Refugee Appeal Division (RAD) dismissed the applicants' appeal. The applicants applied for judicial review, arguing that the RAD erred by (1) finding that the RPD did not exhibit bias in rejecting their refugee claim; (2) abdicating its role as an appellate administrative tribunal by applying a standard of review of the RPD decision that was too restrictive; and (3) concluding, on the basis of that restrictive standard, that there was no need for it to intervene.

The Federal Court allowed the application based on the applicants' second argument.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - [See Aliens - Topic 4088 ].

Aliens - Topic 1326.1

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee Protection Division and Refugee Appeal Division - Determination by - The Federal Court reviewed the purpose, function and jurisdictional attributes of the Refugee Appeal Division of the Immigration and Refugee Board - See paragraphs 44 to 60.

Aliens - Topic 1326.1

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee Protection Division and Refugee Appeal Division - Determination by - The applicants, citizens of Tunisia, appealed the decision of the Refugee Protection Division (RPD) which denied their claim for refugee protection - The Refugee Appeal Division (RAD) dismissed the appeal - The RAD reviewed the RPD's assessment of the applicants' credibility on the standard of reasonableness - The Federal Court allowed the applicants' application for judicial review - In its role as an appellate administrative tribunal, the RAD had to carry out a complete review of the questions of law, fact, and mixed fact and law raised in the applicants' appeal - The RAD erred by applying the same deferential standard that courts of law applied on judicial review - See paragraphs 35 to 43 and 61 to 71.

Aliens - Topic 4088

Practice - Hearings - Constitution of board (incl. bias) - Aloulou and her son (the applicants), citizens of Tunisia, appealed the decision of a Refugee Protection Division (RPD) member which denied their claim for refugee protection - They submitted that the RPD member had acted in a derogatory manner which raised a reasonable apprehension of bias - The Refugee Appeal Division (RAD) dismissed the appeal - The applicants applied for judicial review, and pointed to an instance where the member was trying to understand Aloulou's evidence on how frequently she had been abused by her ex-husband - The member stated, followed by a chuckle, that the ex-husband did not hit Aloulou when he was in Europe - The Federal Court agreed with the RAD - The member's chuckle was imperceptible on the recording of the hearing and was difficult to reconcile with the flow and tone of the conversation at that specific time - In addition, the member's comment clearly reflected a review effort - The RPD's work was inquisitorial, and the member was simply doing his job - Equally fatal to the applicants' argument was the fact that they did not ask the member to recuse himself or even express their concerns at the hearing - See paragraphs 17 to 34.

Cases Noticed:

Kozak et al. v. Canada (Minister of Citizenship and Immigration), [2006] 4 F.C.R. 377; 349 N.R. 309; 2006 FCA 124, refd to. [para. 18].

Muhammad v. Canada (Minister of Citizenship and Immigration) (2014), 454 F.T.R. 161; 2014 FC 448, refd to. [para. 18].

Morales v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 845; 2007 FC 1220, refd to. [para. 18].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 20].

Kabongo v. Canada (Minister of Citizenship and Immigration) (2011), 397 F.T.R. 191; 2011 FC 1106, refd to. [para. 21].

Arthur v. Canada (Procureur général) (2001), 283 N.R. 346; 111 A.C.W.S.(3d) 240; 2001 FCA 223, refd to. [para. 22].

Ramirez v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 397; 2012 FC 809, refd to. [para. 22].

Maxim v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 582; 2012 FC 1029, refd to. [para. 22].

Canada (Minister of Citizenship and Immigration) v. Nwobi (2014), 456 F.T.R. 30; 2014 FC 520, refd to. [para. 27].

Ospina Velasquez et al. v. Canada (Minister of Citizenship and Immigration) (2013), 429 F.T.R. 143; 2013 FC 273, refd to. [para. 27].

Fenanir v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 118; 2005 FC 150, refd to. [para. 28].

Anguiano Acuna v. Canada (Minister of Citizenship and Immigration) (2006), 303 F.T.R. 40; 2006 FC 1222, refd to. [para. 28].

Fletcher v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 653; 2008 FC 909, refd to. [para. 32].

Cao v. Canada (Minister of Citizenship and Immigration) (2012), 422 F.T.R. 108; 2012 FC 1398, refd to. [para. 32].

Iyamuremye et al. v. Canada (Minister of Citizenship and Immigration) (2014), 455 F.T.R. 201; 2014 FC 494, refd to. [para. 36].

Triastcin v. Canada (Minister of Citizenship and Immigration) (2014), 465 F.T.R. 231; 2014 FC 975, refd to. [para. 36].

Akuffo v. Canada (Minister of Citizenship and Immigration) (2014), 467 F.T.R. 94; 2014 FC 1063, refd to. [para. 36].

Alvarez et al. v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 296; 2014 FC 702, refd to. [para. 36].

Eng v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 297; 2014 FC 711, refd to. [para. 36].

Njeukam v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 355; 2014 FC 859, refd to. [para. 36].

Yetna v. Canada (Minister of Citizenship and Immigration) (2014), 463 F.T.R. 128; 2014 FC 858, refd to. [para. 36].

Spasoja v. Canada (Minister of Citizenship and Immigration) (2014), 464 F.T.R. 160; 2014 FC 913, refd to. [para. 36].

Huruglica et al. v. Canada (Minister of Citizenship and Immigration) (2014) 461 F.T.R. 241; 2014 FC 799, agreed with [para. 36].

Diarra v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 430; 2014 FC 1009, refd to. [para. 36].

Guardado et al. v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 402; 2014 FC 953, refd to. [para. 36].

Alyafi v. Canada (Minister of Citizenship and Immigration) (2014), 465 F.T.R. 114; 2014 FC 952, refd to. [para. 36].

Djossou v. Canada (Minister of Citizenship and Immigration) (2014), 467 F.T.R. 289; 2014 FC 1080, agreed with [para. 36].

Newton v. Criminal Trial Lawyers' Association (Alta.) et al. (2010), 493 A.R. 89; 502 W.A.C. 89; 2010 ABCA 399, refd to. [para. 41].

Parizeau v. Barreau du Québec, 2011 QCCA 1498, refd to. [para. 54].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 55].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 56].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 67].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 67].

Counsel:

Félix F. Ocana Correa, for the applicants;

Daniel Latulippe, for the respondent.

Solicitors of Record:

Félix F. Ocana Correa, Montreal, Quebec, for the applicants;

William F. Pentney, Deputy Attorney General of Canada, Montreal, Quebec, for the respondents.

This application for judicial review was heard at Montreal, Quebec, on August 27, 2014, before LeBlanc, J., of the Federal Court, who delivered the following judgment and reasons at Ottawa, Ontario, on December 19, 2014.