Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 461

• Judge: Mosley, J.
• Court: Federal Court (Canada)
• Case Date: April 10, 2006
• Jurisdiction: Canada (Federal)
• Citations: 2006 FC 461;(2006), 290 F.T.R. 161 (FC)

Benitez v. Can. (M.C.I.) (2006), 290 F.T.R. 161 (FC)

MLB headnote and full text

Temp. Cite: [2006] F.T.R. TBEd. MY.005

Jorge Luis Restrepo Benitez (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-9766-04)

Sirisena Kuruvita Arachchige (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-9220-04)

Afua Gyankoma (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-9452-04)

Mike Bilomba (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-9797-04)

Gerardo Martin Rosales Rincon, Catalina Rodriguez Patino, Erlis Beatriz Delgado Ocando, Gerly Joanny Rosales Delgado and Wanda Sofia Rosales Delgado (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-353-05)

Edwin Ernesto Carrillo Mejia (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-407-05)

Majid Reza Yonge Savagoli (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-934-05)

Muhammad Sadik Qadri (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-1144-05)

Juvinny Balmore Flores Gomez, Yaneth Beatriz Castillo Campos and Konny Beatriz Flores Castillo (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-1419-05)

Shurlyn Cathy Ann Jones and Shurnikya Jones (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-1877-05)

Luis Alejandro Lemus Ortiz (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-2034-05)

Inthikhab Hussain Matheen (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-2150-05)

Guillermo Gutierrez Trujillo (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-2709-05)

Jacqueline Robinson (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-3313-05)

Sirisena Kuruvita Arachchige (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-3994-05)

Ranjit Dey Roy, Ratna Rani Dey Roy, Swakshar Dey Roy and Swaikot Dey Roy (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-4044-05)

Mena Guirguis, Marie Goorgy, Monica Guirguis and Malak Guirguis (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-712-05)

Jorge Isaac Martinez Martinez, Eva Libertad Morales (a.k.a. Eva Libertad Morales De Martinez) and Jorge Armando Martinez Morales (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-470-05)

Sutharmini Kamalendran and Sinojan Kamalendran (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-4064-05; 2006 FC 461)

Indexed As: Benitez v. Canada (Minister of Citizenship and Immigration)

Federal Court

Mosley, J.

April 10, 2006.

Summary:

This case concerned 19 consolidated applications for judicial review raising issues regarding Guideline 7 made by the Chairperson of the Immigration and Refugee Board (IRB) under the authority of s. 159(1)(h) of the Immigration and Refugee Protection Act. Guideline 7 or the "reverse order questioning" provision, provided that at a refugee protection hearing, the standard practice would be for the Refugee Protection Officer, or a board member if no officer was present, to start questioning the claimant followed by counsel for the claimant.

The Federal Court dismissed the application but certified questions for consideration by the Court of Appeal.

Administrative Law - Topic 726

The hearing and decision - Waiver - Effect of failure to object - Refugee protection claimants applied for judicial review, challenging Guideline 7 (the reverse order of questioning provision) on a number of administrative law grounds - An issue arose respecting waiver (i.e., whether the applicants had to have objected to the order of questioning at their respective hearings in order to have it dealt with upon judicial review) - The Federal Court noted that generally an applicant had to raise an allegation of bias or other violation of natural justice before the tribunal at the earliest practical opportunity - The earliest practical opportunity being when the applicant was aware of the relevant information and it was reasonable to expect him or her to raise an objection - In this case, counsel for the applicants were aware of the implementation of Guideline 7 before the applicants' hearings; therefore, the earliest practical opportunity to raise an objection and to seek an exemption from the standard order of questioning would have been in advance of each scheduled hearing or at the hearing itself - A failure to object at the hearing was an implied waiver of any perceived unfairness resulting from the application of the Guideline itself - However, the operation of the doctrine of waiver did not preclude an individual applicant from arguing that the manner in which the hearing was conducted breached the duty of fairness by reason of, for example, badgering cross-examination, if that ground was otherwise properly before the court - See paragraphs 204 to 222.

Administrative Law - Topic 726

The hearing and decision - Waiver - Effect of failure to object - Refugee protection claimants applied for judicial review, challenging Guideline 7 (the reverse order of questioning provision) on a number of administrative law grounds - The Crown argued that the court should not consider grounds for judicial review that were not raised at the board hearings or in the pleadings - Several applicants raised the Guideline 7 issue for the first time in their memoranda of fact and law or supplementary memoranda after the release of another Federal Court decision on the Guideline 7 issue - The Federal Court discussed the common law principle of waiver - See paragraphs 223 to 232 - The court concluded that "the common law principle of waiver requires that an applicant must raise an allegation of bias or a violation of natural justice before the tribunal at the earliest practical opportunity. If counsel were of the view that the application of Guideline 7 in a particular case would result in a denial of their client's right to a fair hearing, the earliest practical opportunity to raise an objection and to seek an exception from the standard order of questioning would have been in advance of each scheduled hearing, in accordance with Rules 43 and 44, or orally, at the hearing itself. A failure to object at the hearing must be taken as an implied waiver of any perceived unfairness resulting from the application of the Guideline itself. If the objection was made in a timely manner at or before the hearing, the applicants are entitled to raise it as a ground for judicial review in their applications for leave. If the applicants failed to cite a denial of procedural fairness in their applications for leave, judicial review of the applications should be confined to the grounds on which leave was sought" - See paragraph 237.

Administrative Law - Topic 2085

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Acting in multiple roles or capacities - Guideline 7, made by the Chairperson of the Immigration and Refugee Board (IRB) under the authority of s. 159(1)(h) of the Immigration and Refugee Protection Act, provided that in a claim for refugee protection, the standard practice would be for the Refugee Protection Officer (RPO), or a board member if no RPO was present, to start questioning of the claimant followed by counsel for the claimant - A refugee protection claimant argued that as a result of the diminishing presence of RPOs in refugee hearings, the role of the board member was being distorted giving rise to a reasonable apprehension of institutional bias which threatened the independence and impartiality of the board - That is, the board could become both the examiner and the ultimate decision maker regarding the claim for refugee protection - The Federal Court opined that the question of the independence of the IRB was not squarely before the court and therefore the court did not attempt to decide that question - As to institutional bias, the court was not convinced that a reasonable apprehension of bias arose merely because a member conducted the questioning or because of a change in the order of questioning - Rather the more important issue was how the questioning was carried out - In any particular case aggressive questioning could amount to a breach of fairness - The question of bias in this context would have to be decided on a case-by-case basis - See paragraphs 189 to 203.

Administrative Law - Topic 2093

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Institutional or systemic bias - [See Administrative Law - Topic 2085 ].

Administrative Law - Topic 2096

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Waiver - [See first Administrative Law - Topic 726 ].

Administrative Law - Topic 2208

Natural justice - Policies, rules or guidelines adopted by board or tribunal - Procedural guidelines - This judicial review application raised Charter issues respecting Guideline 7 made by the Chairperson of the Immigration and Refugee Board under s. 159(1)(h) of the Immigration and Refugee Protection Act - Guideline 7 or the "reverse order questioning" provision, provided that at a refugee protection hearing, the standard practice would be for the Refugee Protection Officer, or a board member if no officer was present, to start questioning the claimant followed by counsel for the claimant - Refugee protection claimants argued that the order of questioning mandated by Guideline 7 was contrary to the principles of fundamental justice guaranteed by s. 7 of the Charter - The Crown argued that there was no need for the court to consider fundamental justice considerations as this case could be resolved through the application of administrative law principles respecting natural justice - The Federal Court agreed that this case involved classic administrative law issues that could be determined under the principles of natural justice and fairness without invoking the Charter - The court opined, that if it was wrong in this regard, it would conclude that fundamental justice did not require that the questioning order employed in the civil and criminal cases be extended to refugee determination proceedings - See paragraphs 46 to 67.

Administrative Law - Topic 2208

Natural justice - Policies, rules or guidelines adopted by board or tribunal - Procedural guidelines - Guideline 7, made by the Chairperson of the Immigration and Refugee Board (IRB) under the authority of s. 159(1)(h) of the Immigration and Refugee Protection Act (IRPA), provided that in a claim for refugee protection, the standard practice would be for the Refugee Protection Officer, or a board member if no officer was present, to start questioning of the claimant followed by counsel for the claimant - Refugee protection claimants applied for judicial review, arguing that the procedure mandated by Guideline 7 and adopted by the tribunal was contrary to natural justice - The Federal Court, applying the factors set out in Baker v. MCI (SCC 1999) and further factors submitted by the applicants, held that it had not been established that natural justice required that counsel for a refugee claimant had to be provided with the opportunity to question the claimant first in order for the claimant to have a meaningful opportunity to present his or her case fully and fairly, or that the Guideline resulted in the denial of effective assistance of counsel - The court stated that the opportunity for the applicant to make written submissions and provide evidence to the board, to have an oral hearing with the participation of counsel, and to make oral submissions, satisfied the requirements of the participatory rights required by the duty of fairness and Guideline 7 did not, in itself, breach that duty - See paragraphs 72 to 128.

Administrative Law - Topic 2277

Natural justice - The duty of fairness - Waiver - [See both Administrative Law - Topic 726 ].

Administrative Law - Topic 2499

Natural justice - Procedure - At hearing - Order of questioning - [See second Administrative Law - Topic 2208 ].

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - [See Aliens - Topic 1334 ].

Administrative Law - Topic 3345.2

Judicial review - Practice - Issues not raised before tribunal - [See both Administrative Law - Topic 726 ].

Administrative Law - Topic 3345.3

Judicial review - Practice - Arguments not raised in memorandum - [See second Administrative Law - Topic 726 ].

Administrative Law - Topic 7002

Judicial review - Bars - Estoppel - Failure to raise issue in previous proceedings - [See both Administrative Law - Topic 726 ].

Administrative Law - Topic 8264

Administrative powers - Discretionary powers - Fettering of discretion - Guideline 7, made by the Chairperson of the Immigration and Refugee Board (IRB) under the authority of s. 159(1)(h) of the Immigration and Refugee Protection Act, provided that in a claim for refugee protection, the standard practice would be for the Refugee Protection Officer, or a board member if no officer was present, to start questioning of the claimant followed by counsel for the claimant - Refugee protection claimants applied for judicial review, arguing that the discretion of board members was fettered by the imposition and implementation of Guideline 7 - The Federal Court, considering the evidence presented as to the manner in which Guideline 7 was actually being applied by board members, was not satisfied that the discretion of board members to determine the procedure to be followed in the refugee proceedings before them was fettered by the implementation of Guideline 7 - The court noted, however, that this did not mean that fettering could not be made out in a particular case - The court stated that the application of a policy guideline could amount to an unlawful fettering of a board's discretion, if applied without due consideration to the evidence and submissions in a particular case - Such a situation could arise where a member decided to apply the Guideline without exception and ignored the evidence or submissions of counsel that there was reason to vary the procedure - See paragraphs 129 to 172.

Aliens - Topic 25

Definitions and general principles - Immigration manuals, guidelines, etc. - [See both Administrative Law - Topic 2208 , Administrative Law - Topic 8264 , both Aliens - Topic 1865 and Civil Rights - Topic 8586 ].

Aliens - Topic 1326

Admission - Refugee protection, Convention refugees and persons in need of protection - Procedure - [See both Administrative Law - Topic 2208 , Administrative Law - Topic 8264 and Civil Rights - Topic 8586 ].

Aliens - Topic 1329.6

Admission - Refugee protection, Convention refugees and persons in need of protection - Hearing - Order of questioning (Guideline 7) - [See both Administrative Law - Topic 726 , Administrative Law - Topic 2085 , both Administrative Law - Topic 2208 , Administrative Law - Topic 8264 and Civil Rights - Topic 8586 ].

Aliens - Topic 1334

Admission - Refugee protection, Convention refugees and persons in need of protection - Appeals or judicial review - Scope of review - This judicial review application raised issues respecting Guideline 7 made by the Chairperson of the Immigration and Refugee Board under the authority of s. 159(1)(h) of the Immigration and Refugee Protection Act - The Federal Court stated that in determining the standard of review a pragmatic and functional analysis was not required when the court was assessing allegations of the denial of justice or procedural fairness - Instead, the court had to examine the specific circumstances of the case and determine whether the tribunal in question observed the duty of fairness - If there was a breach of natural justice or procedural fairness, no deference was due and the court would set aside the decision of the board - Where a breach of fairness was found to result from a reasonable apprehension of bias, the standard was particularly demanding, particularly where, as in this situation, the rights of refugee protection claimants in proceedings before the board were at stake - See paragraphs 43 to 45.

Aliens - Topic 1865

Exclusion and expulsion - Immigration and Refugee Board - Guidelines - General - Section 159(1)(h) of the Immigration and Refugee Protection Act provided that the Chairperson of the Immigration and Refugee Board could "issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides .. " - Refugee claimants argued that the guideline-making power under s. 159(1)(h) was only to be used to identify decisions of the board which could be used as jurisprudential guides, basing their interpretation on the fact that there was no comma before the word "and" in the English version - The Federal Court was not persuaded that this was the correct interpretation - The court, relying on Driedger's Construction of Statutes (4th Ed.), noted that punctuation could be of assistance in cases of ambiguity but Canadian courts had been reluctant to place much reliance on it as an aid to interpretation due to its inherent unreliability - Here there was no ambiguity in the interpretation of s. 159(1)(h) that could be resolved by reference to a missing comma - The legislative intent from the plain language employed was that the Chairperson was authorized to both issue guidelines and to identify certain decisions of the Board as models for the members to emulate - The court noted that this was, perhaps, clearer in the French version - See paragraphs 173 to 175.

Aliens - Topic 1865

Exclusion and expulsion - Immigration and Refugee Board - Guidelines - General - Guideline 7, made by the Chairperson of the Immigration and Refugee Board under the authority of s. 159(1)(h) of the Immigration and Refugee Protection Act provided that in a claim for refugee protection, the standard practice would be for the Refugee Protection Officer, or a Board member if no officer was present, to start questioning of the claimant followed by counsel for the claimant - Refugee protection claimants applied for judicial review, arguing that Guideline 7 was beyond the scope of the Chairperson's authority - The Federal Court dismissed the application - The court rejected the argument that the Guideline operated as a mandatory rule and as such was outside the Chairperson's authority - See paragraphs 173 to 188.

Aliens - Topic 1866

Exclusion and expulsion - Immigration and Refugee Board - Guidelines - Order of questioning - [See Administrative Law - Topic 2085 , both Administrative Law - Topic 2208 , Administrative Law - Topic 8264 and Civil Rights - Topic 8586 ].

Civil Rights - Topic 3103

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Natural justice (common law) v. principles of fundamental justice (Charter) - [See first Administrative Law - Topic 2208 ].

Civil Rights - Topic 8317

Canadian Charter of Rights and Freedoms - Application - Administrative law - Including boards, tribunals and Crown corporations - [See first Administrative Law - Topic 2208 ].

Civil Rights - Topic 8586

Canadian Charter of Rights and Freedoms - Practice - Method of raising Charter issues - Requirement of establishing a factual foundation - This judicial review application raised Charter issues respecting Guideline 7 made by the Chairperson of the Immigration and Refugee Board under s. 159(1)(h) of the Immigration and Refugee Protection Act - Guideline 7 or the "reverse order questioning" provision, provided that at a refugee protection hearing, the standard practice would be for the Refugee Protection Officer, or board member if no officer was present, to start questioning the claimant followed by counsel for the claimant - One of the refugee protection claimants alleged discrimination contrary to s. 15 of the Charter because claimants did not have the right to present their evidence first and to have their counsel question them first, in contrast to the procedure before other tribunals, including the other Immigration and Refugee Board Divisions - The Federal Court declined to address the s. 15 issue because there was an insufficient factual basis presented to the court upon which to make the determination - Further, it was not necessary to determine the question where there was an adequate alternative remedy available to the applicants at common law (i.e., the case could be decided on administrative law principles) - See paragraphs 68 to 71.

Courts - Topic 82

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Federal Court - This judicial review application raised issues respecting Guideline 7 made by the Chairperson of the Immigration and Refugee Board under s. 159(1)(h) of the Immigration and Refugee Protection Act - The Federal Court, per Mosley, J., stated that although he was covering ground that had been travelled previously by other judges of the court, notably by Blanchard, J., in the recently decided Thamotharem v. MCI, he was not bound by those decisions; however, the notion of judicial comity suggested that he should exercise restraint when dealing with issues which his colleagues had previously decided - Mosley, J., stated that judicial comity was not the application of the rule of stare decisis, but recognition that decisions of the court should be consistent to the extent possible so as to provide litigants with some predictability - He further stated that "with judicial comity in mind, I have concluded that I should differ from the prior decisions of my colleagues only if I am satisfied that the evidence before me requires it or that I am convinced that the decisions were wrongly decided in that they did not consider some binding authority or relevant statute. In that regard, I would note that while the record before me includes the evidence that was before the court in Thamotharem, it also includes new evidence that was not part of the record in that case" - See paragraphs 33 to 35.

Statutes - Topic 1806

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of one version by reference to the other - [See both Aliens - Topic 1865 ].

Statutes - Topic 1822

Interpretation - Intrinsic aids - Punctuation - General - [See both Aliens - Topic 1865 ].

Cases Noticed:

Thamotharem v. Canada (Minister of Citizenship and Immigration) (2006), 285 F.T.R. 45; 2006 FC 16, refd to. [para. 2].

Hansard Spruce Mills Ltd., Re, [1954] 4 D.L.R. 590 (B.C.S.C.), refd to. [para. 34].

Monsanto Canada Inc. v. Superintendent of Financial Services (Ont.) et al., [2004] 3 S.C.R. 152; 324 N.R. 259; 189 O.A.C. 201; 2004 SCC 54, refd to. [para. 43].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 44].

Kozak et al. v. Canada (Minister of Citizenship and Immigration) (2006), 349 N.R. 309; 2006 FCA 124, refd to. [para. 45].

Smajda v. Canada (Minister of Citizenship and Immigration) - see Kozak et al. v. Canada (Minister of Citizenship and Immigration).

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1; 17 D.L.R.(4th) 422, refd to. [para. 47].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 48].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 52].

Glassco and Quebec (Attorney General) v. Cumming, [1978] 2 S.C.R. 605; 22 N.R. 271, refd to. [para. 57].

Quebec (Attorney General) v. Cumming - see Glassco and Quebec (Attorney General) v. Cumming.

Phillips et al. v. Richard, J., [1995] 2 S.C.R. 97; 180 N.R. 1; 141 N.S.R.(2d) 1; 403 A.P.R. 1; 124 D.L.R.(4th) 129, refd to. [para. 57].

Phillips v. Nova Scotia (Commission of Inquiry in the Westray Mine Tragedy) - see Phillips et al. v. Richard, J.

Daigle v. Tremblay, [1989] 2 S.C.R. 530; 102 N.R. 81; 27 Q.A.C. 81; 62 D.L.R.(4th) 634, refd to. [para. 57].

Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84; 280 N.R. 268; 2002 SCC 3, refd to. [para. 58].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 58].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 59].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 64].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271; 44 D.L.R.(4th) 193, refd to. [para. 67].

Ruby v. Royal Canadian Mounted Police et al., [2002] 4 S.C.R. 3; 295 N.R. 353; 2002 SCC 75, refd to. [para. 67].

Ruby v. Canada (Solicitor General) - see Ruby v. Royal Canadian Mounted Police et al.

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270; 61 D.L.R.(4th) 385, refd to. [para. 70].

Lumingu v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 514; 2005 FC 866, refd to. [para. 72].

Cortes Silva v. Canada (Minister of Citizenship and Immigration) (2005), 265 F.T.R. 297; 2005 FC 738, refd to. [para. 72].

Martinez et al. v. Canada (Minister of Citizenship and Immigration) (2005), 279 F.T.R. 1; 2005 FC 1121, refd to. [para. 72].

Fabiano v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 736; 2005 FC 1260, refd to. [para. 72].

Liang v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 386; 2005 FC 622, refd to. [para. 72].

Zaki v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 661; 48 Imm. L.R.(3d) 149; 2005 FC 1066, refd to. [para. 72].

Kante v. Minister of Employment and Immigration, [1994] F.C.J. No. 525 (T.D.), refd to. [para. 76].

Ganji et al. v. Canada (Minister of Citizenship and Immigration) (1997), 135 F.T.R. 283; 40 Imm. L.R.(2d) 95 (T.D.), refd to. [para. 76].

Atwal v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 258 (T.D.), refd to. [para. 76].

Veres v. Canada (Minister of Citizenship and Immigration), [2000] F.T.R. Uned. 626; [2001] 2 F.C. 124 (T.D.), refd to. [para. 76].

Herrera v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 75; 2004 FC 1724, refd to. [para. 79].

Sandor v. Canada (Minister of Citizenship and Immigration) (2004), 266 F.T.R. 311; 2004 FC 1782, refd to. [para. 79].

Cota v. Canada (Ministre de la Citoyenneté et de l'Immigration), [1999] F.T.R. Uned. 350 (T.D.), refd to. [para. 97].

Sindar Shahib et al. v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 747; 2005 FC 1250, refd to. [para. 97].

Shahib v. Canada (Minister of Citizenship and Immigration) - see Sindar Shahib et al. v. Canada (Minister of Citizenship and Immigration).

Bady-Badila v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2003] F.T.R. Uned. 240; 2003 FCT 399, refd to. [para. 97].

Qi v. Canada (Minister of Citizenship and Immigration) (1995), 33 Imm. L.R.(2d) 57 (F.C.T.D.), refd to. [para. 105].

Mercier-Néron v. Canada (Ministre de la Santé nationale et du bien-être social) et al. (1995), 98 F.T.R. 36 (T.D.), refd to. [para. 105].

Bendahmane v. Minister of Employment and Immigration, [1989] 3 F.C. 16; 95 N.R. 385; 61 D.L.R.(4th) 313 (F.C.A.), refd to. [para. 105].

Prassad v. Minister of Employment and Immigration, [1989] 1 S.C.R. 560; 93 N.R. 81; 57 D.L.R.(4th) 663, refd to. [para. 109].

Rajaratnam v. Minister of Employment and Immigration (1991), 135 N.R. 300 (F.C.A.), refd to. [para. 123].

Ainsley Financial Corp. et al. v. Ontario Securities Commission et al. (1994), 77 O.A.C. 155; 21 O.R.(3d) 104; 121 D.L.R.(4th) 79 (C.A.), affing. (1993), 14 O.R.(3d) 280; 106 D.L.R.(4th) 507 (Gen. Div.), refd to. [paras. 129, 130].

Ha v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 195; 316 N.R. 299; 2004 FCA 49, refd to. [para. 132].

Jin v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 12; 2006 FC 57, refd to. [para. 135].

Vazquez et al. v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 631; 2006 FC 106, refd to. [para. 135].

Gonzalez Vazquez v. Canada (Minister of Citizenship and Immigration) - see Vazquez et al. v. Canada (Minister of Citizenship and Immigration).

Maple Lodge Farms Ltd. v. Canada et al., [1982] 2 S.C.R. 2; 44 N.R. 354; 137 D.L.R.(3d) 558, refd to. [para. 144].

R.K.N., Re, [2004] R.P.D.D. No. 14, refd to. [para. 162].

Fouchong v. Canada (Secretary of State) (1994), 88 F.T.R. 37; 26 Imm. L.R.(2d) 200 (T.D.), refd to. [para. 165].

So v. Criminal Injuries Compensation Board (Ont.) (1995), 82 O.A.C. 43; 24 O.R.(3d) 530 (Div. Ct.), refd to. [para. 172].

Leung v. Ontario (Criminal Injuries Compensation Board) - see So v. Criminal Injuries Compensation Board (Ont.).

Sivasamboo v. Canada of (Minister of Citizenship and Immigration), [1995] 1 F.C. 741; 87 F.T.R. 46 (T.D.), refd to. [para. 182].

2747-3174 Québec Inc. v. Régie des permis d'alcool du Québec et autres, [1996] 3 S.C.R. 919; 205 N.R. 1; 140 D.L.R.(4th) 577, refd to. [para. 189].

Ocean Port Hotel Ltd. v. Liquor Control and Licensing Branch (B.C.), [2001] 2 S.C.R. 781; 274 N.R. 116; 155 B.C.A.C. 193; 254 W.A.C. 193; 2001 SCC 52, refd to. [para. 191].

Lippé et autres v. Québec (Procureur général) et autres, [1991] 2 S.C.R. 114; 128 N.R. 1; 39 Q.A.C. 241, refd to. [para. 192].

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. 194].

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325; 122 D.L.R.(4th) 129, refd to. [para. 196].

Zündel v. Citron et al., [2000] 4 F.C. 225; 256 N.R. 201; 189 D.L.R.(4th) 131 (F.C.A.), leave to appeal refused (2000), 266 N.R. 200 (S.C.C.), refd to. [para. 197].

Farkas et al. v. Canada (Minister of Citizenship and Immigration), [2001] F.T.R. Uned. 124; 2001 FCT 190, refd to. [para. 201].

Sy v. Canada (Minister of Citizenship and Immigration) (2005), 271 F.T.R. 242; 2005 FC 379, refd to. [para. 207].

Energy and Chemical Workers' Union and Atomic Energy of Canada Ltd., Re, [1986] 1 F.C. 103; 64 N.R. 126; 24 D.L.R.(4th) 675 (F.C.A.), leave to appeal refused [1986] 2 S.C.R. v; 72 N.R. 77, refd to. [para. 213].

Human Rights Tribunal and Atomic Energy of Canada Ltd., Re - see Energy and Chemical Workers' Union and Atomic Energy of Canada Ltd., Re.

Yassine v. Minister of Employment and Immigration (1994), 172 N.R. 308; 27 Imm. L.R.(2d) 135 (F.C.A.), refd to. [para. 214].

Taylor and Western Guard Party v. Canadian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191; 75 D.L.R.(4th) 577, refd to. [para. 215].

Zündel v. Canadian Human Rights Commission et al. (2000), 264 N.R. 174; 195 D.L.R.(4th) 399 (F.C.A.), refd to. [para. 216].

Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities (Nfld.), [1992] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271; 89 D.L.R.(4th) 289, refd to. [para. 216].

Mohammadian v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 371; 185 F.T.R. 144; 4 Imm. L.R.(3d) 131 (T.D.), affd. [2001] 4 F.C. 85; 271 N.R. 91 (F.C.A.), refd to. [para. 219].

Native Women's Association of Canada et al. v. Canada et al., [1994] 3 S.C.R. 627; 173 N.R. 241; 119 D.L.R.(4th) 224, refd to. [para. 224].

Métis National Council of Women et al. v. Canada (Attorney General), [2005] 4 F.C.R. 272; 265 F.T.R. 162; 2005 FC 230, refd to. [para. 227].

Schut v. Canada (Attorney General) (2000), 186 F.T.R. 212 (T.D.), refd to. [para. 227].

Pathak v. Canadian Human Rights Commission et al., [1995] 2 F.C. 455; 180 N.R. 152 (F.C.A.), leave to appeal refused (1995), 198 N.R. 237 (S.C.C.), refd to. [para. 227].

Stumf et al. v. Canada (Minister of Citizenship and Immigration) (2002), 289 N.R. 165; 2002 FCA 148, refd to. [para. 228].

Marshall v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 46; 2004 FC 34, refd to. [para. 230].

Toussaint v. Conseil canadien des relations du travail et al. (1993), 160 N.R. 396 (F.C.A.), refd to. [para. 231].

Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers et al. (2001), 267 N.R. 82; 2001 FCA 4, refd to. [para. 231].

Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.), refd to. [para. 243].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 159(1)(h) [para. 13]; sect. 161(1) [para. 15]; sect. 162(2) [para. 16]; sect. 170 [para. 17].

Authors and Works Noticed:

Canada, Immigration and Refugee Board, Policy on the Use of Jurisprudential Guides, Policy No. 2003-01 (March 21, 2003), generally [para. 175].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 312 to 314 [para. 174].

Counsel:

Matthew J. Jeffery, for the applicant;

Jamie Todd, Catherine Vasilaros, John Provart and Michael Butterfield, for the respondent.

Solicitors of Record :

Matthew J. Jeffery, Toronto, Ontario, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

These applications were heard at Toronto, Ontario, on March 7 and 8, 2006, before Mosley, J., of the Federal Court, who delivered the following reasons for order at Ottawa, Ontario, on April 10, 2006.