Canada (Minister of Citizenship and Immigration) v. Huntley, (2010) 375 F.T.R. 250 (FC)

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: July 13, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2010), 375 F.T.R. 250 (FC);2010 FC 1175

Can. (M.C.I.) v. Huntley (2010), 375 F.T.R. 250 (FC)

MLB headnote and full text

Temp. Cite: [2010] F.T.R. TBEd. NO.020

The Minister of Citizenship and Immigration (applicant) v. Brandon Carl Huntley (respondent)

(IMM-4423-09; 2010 FC 1175)

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

Federal Court

Russell, J.

November 24, 2010.

Summary:

Huntley was granted refugee status under the Immigration and Refugee Protection Act. The Minister of Citizenship and Immigration applied for judicial review. Huntley moved for an order under s. 18.4(2) of the Federal Courts Act to (a) convert the application to an action or (b) compel the Minister to forward his reasons for commencing the judicial review application.

The Federal Court, in a decision reported at (2010), 366 F.T.R. 201, denied the motion.

The Federal Court allowed the application for judicial review. The decision was set aside and the matter was returned for reconsideration by a differently constituted board.

Administrative Law - Topic 24

Abuse of process - What constitutes - Huntley, a white citizen of South Africa, came to Canada originally on a work permit in 2004 - He returned to South Africa and then came back to Canada on another work permit in 2006, remaining in Canada illegally after it expired - In 2008, he applied for refugee status on the basis of fear of discrimination, harassment and possible death in South Africa because of his race - He reported having been assaulted by black South Africans who used racial slurs - The Refugee Protection Division (RPD) of the Immigration and Refugee Board granted Huntley refugee status - The Minister of Citizenship and Immigration applied for judicial review - The Federal Court allowed the application - Having concluded that the decision was unreasonable on its merits, the court considered Huntley's allegation that the Minister's application was an abuse of process, having been brought in response to political pressure placed on the Canadian government by the South African government - There was no evidence to support a finding that political or diplomatic pressure or interference prompted the Minister's application - Of the two affidavits filed in support of Huntley's assertions, the first contained no evidence to support any perception other than that the Minister brought his application because the RPD's decision was seriously flawed - The second affidavit was unacceptable - The proximity in timing between an alleged meeting between Canadian and South African officials and the Minister's application proved nothing - There was no merit to Huntley's allegation that the court's judicial independence had been compromised due to the Minister's motivation for bringing his application - The motive imputed to the Minister by Huntley was speculative - No pressure had been placed on the court - Judicial independence was not an issue - Nor would any reasonable, well-informed person believe that there was a concern regarding judicial independence - See paragraphs 237 to 293.

Administrative Law - Topic 2093

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Institutional or systemic bias - Huntley, a white citizen of South Africa, came to Canada originally on a work permit in 2004 - He returned to South Africa and then came back to Canada on another work permit in 2006, remaining in Canada illegally after it expired - In 2008, he applied for refugee status on the basis of fear of discrimination, harassment and possible death in South Africa because of his race - He reported having been assaulted by black South Africans who used racial slurs - The Refugee Protection Division (RPD) of the Immigration and Refugee Board granted Huntley refugee status - The Minister of Citizenship and Immigration applied for judicial review - The Federal Court allowed the application - Having concluded that the decision was unreasonable on its merits, the court rejected Huntley's assertion that, even if there was a reviewable error in the decision, it should not be quashed and returned for reconsideration because the RPD could not now fairly and impartially redetermine the claim - There was no evidence to support Huntley's "bald assertion" that comments made by the South African government, the controversy surrounding the case, or the fact of these proceedings and the way they had progressed could have any impact on the independence of the RPD or any individual member who reheard the refugee claim - No reasonable bystander would conclude that the RPD had lost its independence - Further, these arguments were premature - Huntley was attempting to immunize his case from judicial review - He could not become a Convention refugee by default and by mere assertions of partiality or institutional bias - See paragraphs 294 to 299.

Administrative Law - Topic 2293

Natural justice - Unfairness - Abuse of power or abuse of process - [See Administrative Law - Topic 24 ].

Administrative Law - Topic 3345

Judicial review - General - Practice - Affidavit evidence - [See Administrative Law - Topic 24 ].

Administrative Law - Topic 8967

Boards and tribunals - Exercise of power - Grounds for review - Political interference - [See Administrative Law - Topic 24 ].

Aliens - Topic 1322

Admission - Refugee protection, Convention refugees and persons in need of protection - Grounds - Well-founded fear of persecution - Huntley, a white citizen of South Africa, came to Canada originally on a work permit in 2004 - He returned to South Africa and then came back to Canada on another work permit in 2006, remaining in Canada illegally after it expired - In 2008, he applied for refugee status on the basis of fear of discrimination, harassment and possible death in South Africa because of his race - He reported having been assaulted by black South Africans who used racial slurs - The Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) granted Huntley refugee status - The Minister of Citizenship and Immigration applied for judicial review - The Federal Court allowed the application - There were numerous errors in the decision that, either individually or cumulatively, rendered it unreasonable - Huntley's personal evidence provided no reasonably acceptable grounds to support his speculative assertions that the attacks he suffered were racially motivated or that he had a subjective fear of persecution - There was insufficient objective evidence to support Huntley's claim - This conclusion was supported by the RPD's reliance on the oral testimony of Huntley's witness, Kaplan, which the RPD referred to as the "lifeline" for Huntley's claim - Kaplan's view was highly partial - Her personal experiences provided no objective basis for her opinions, which needed to be tested against impartial and objective evidence - The RPD's conclusions regarding the value of Kaplan's evidence were unreasonable - A similar lack of objectivity was found in the RPD's treatment of the documentary evidence - Huntley's documentary evidence was anything but objective - The RPD failed to balance that evidence against the more objective evidence found in the IRB's national documentation package - The RPD's decision was set aside and the matter was returned for reconsideration by a differently constituted board - See paragraphs 90 to 236.

Aliens - Topic 1326.3

Admission - Refugee protection - Convention refugees and persons in need of protection - Refugee Protection Division and Refugee Appeal Division - Composition of panel - [See Administrative Law - Topic 2093 ].

Aliens - Topic 1327

Admission - Refugee protection, Convention refugees and persons in need of protection - Time for claim to refugee status - Huntley, a white citizen of South Africa, came to Canada originally on a work permit in 2004 - He returned to South Africa and then came back to Canada on another work permit in 2006, remaining in Canada illegally after it expired - In 2008, he applied for refugee status on the basis of fear of discrimination, harassment and possible death in South Africa because of his race - He reported having been assaulted by black South Africans who used racial slurs - The Refugee Protection Division (RPD) of the Immigration and Refugee Board granted Huntley refugee status - The Minister of Citizenship and Immigration applied for judicial review - The Federal Court allowed the application - There were numerous errors in the decision that, either individually or cumulatively, rendered it unreasonable - Regarding Huntley's delay in making his refugee claim, the court observed that usually such an extensive delay as his counted against an allegation of subjective fear - Here, the RPD excused the delay because it accepted Huntley's explanation that, at least when he returned to South Africa, he did not know that he could make a refugee claim - After his work permit ran out in 2006, Huntley was actively looking for ways to stay in Canada, including joining the army and marrying a Canadian - There was no reasonable explanation for why he did not consider a refugee claim then - The RPD had accepted Huntley's explanation - If delay were the only factor, the court would have concluded that it should not interfere - However, when viewed in conjunction with other errors, the RPD's handling of the delay issue added to the impression of imbalance and an unreasonable lack of objectivity - See paragraphs 162 to 168.

Aliens - Topic 1331

Admission - Refugee protection, Convention refugees and persons in need of protection - Evidence - [See Aliens - Topic 1322 ].

Aliens - Topic 1335

Admission - Refugee protection, Convention refugees and persons in need of protection - Appeals or judicial review - Grounds - [See Aliens - Topic 1322 ].

Aliens - Topic 1336.1

Admission - Refugee protection, Convention refugees and persons in need of protection - Referral to board where decision quashed - [See Administrative Law - Topic 2093 ].

Aliens - Topic 4069

Practice - Judicial review and appeals - Certification of question of general importance by Federal Court - Huntley, a white citizen of South Africa, came to Canada originally on a work permit in 2004 - He returned to South Africa and then came back to Canada on another work permit in 2006, remaining in Canada illegally after it expired - In 2008, he applied for refugee status on the basis of fear of discrimination, harassment and possible death in South Africa because of his race - He reported having been assaulted by black South Africans who used racial slurs - The Refugee Protection Division (RPD) of the Immigration and Refugee Board granted Huntley refugee status - The Minister of Citizenship and Immigration applied for judicial review - The Federal Court allowed the application - Having concluded that the decision was unreasonable on its merits, the court refused to certify two questions proposed by Huntley - Both questions, which raised issues surrounding political interference in the judicial review process, were purely hypothetical as the court had found as a fact that there was no evidence of political interference, either actual or perceived, before the court in this application - Questions for certification had to be serious questions of general importance that would be determinative of the appeal and could not be hypothetical - See paragraphs 300 to 304.

Aliens - Topic 4521

Evidence - Affidavits - General - [See Administrative Law - Topic 24 ].

Courts - Topic 308

Judges - Independence of judiciary - What constitutes interference with - [See Administrative Law - Topic 24 ].

Cases Noticed:

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. 34].

Song v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 362; 2008 FC 467, refd to. [para. 35].

Legault v. Canada (Minister of Citizenship and Immigration) (2002), 288 N.R. 174; 212 D.L.R.(4th) 139; 2002 FCA 125, refd to. [para. 36].

Cornejo v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 143; 2010 FC 261, refd to. [para. 37].

Liang v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 324; 2008 FC 450, refd to. [para. 38].

Thompson Blake v. Canada (Minister of Public Safety and Emergency Preparedness), [2009] 1 F.C.R. 179; 328 F.T.R. 200; 2008 FC 572, refd to. [para. 40].

Smith v. Canadian Armed Forces (Chief, Defence Staff) et al. (2010), 363 F.T.R. 186; 2010 FC 321, refd to. [para. 40].

Ly (Q.H.) v. Canada (Minister of Citizenship and Immigration), [2003] F.T.R. Uned. 706; 2003 FC 1184, refd to. [para. 44].

Zhuravlvev et al. v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3; 187 F.T.R. 110 (T.D.), refd to. [para. 54].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321; 103 D.L.R.(4th) 1, refd to. [para. 55].

Prophète v. Canada (Minister of Citizenship and Immigration) (2009), 387 N.R. 149; 2009 FCA 31, refd to. [para. 70].

Caballero et al. v. Minister of Employment and Immigration (1993), 154 N.R. 345 (F.C.A.), refd to. [para. 71].

United States of America v. Cobb et al., [2001] 1 S.C.R. 587; 267 N.R. 203; 145 O.A.C. 3; 2001 SCC 19, dist. [para. 76].

Dominguez Hernandez et al. v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 939; 2007 FC 1211, refd to. [para. 82].

Shahiraj v. Canada (Minister of Citizenship and Immigration) (2001), 205 F.T.R. 199; 2001 FCT 453, refd to. [para. 128].

Flores et al. v. Canada (Minister of Citizenship and Immigration), [2002] F.T.R. Uned. 582; 2002 FCT 893, refd to. [para. 128].

Ramirez Tenorio v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 46; 2007 FC 63, refd to. [para. 194].

Mejia et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2003] F.T.R. Uned. 688; 2003 FC 1180, refd to. [para. 194].

Syed v. Canada (Minister of Citizenship and Immigration) (2000), 195 F.T.R. 39 (T.D.), refd to. [para. 194].

Danquah v. Canada (Minister of Citizenship and Immigration), [2003] F.T.R. Uned. 432; 2003 FC 832, refd to. [para. 194].

Smirnov and Pasko v. Canada (Secretary of State), [1995] 1 F.C. 780; 89 F.T.R. 269 (T.D.), refd to. [para. 195].

Deigan v. Canada (Attorney General) (1996), 206 N.R. 195; 66 A.C.W.S.(3d) 837 (F.C.A.), refd to. [para. 267].

Novopharm Ltd. v. Smith, Kline and French Laboratories Ltd. and Canada (Attorney General) (1984), 53 N.R. 68; 2 C.I.P.R. 205 (F.C.A.), refd to. [para. 268].

First Green Park Pty. Ltd. v. Canada (Attorney General), [1997] 2 F.C. 845; 127 F.T.R. 189 (T.D.), refd to. [para. 268].

Bressette v. Kettle and Stony Point First Nations Band Council (1997), 137 F.T.R. 189 (T.D.), refd to. [para. 269].

Ethier v. Royal Canadian Mounted Police (Commissioner), [1993] 2 F.C. 659; 151 N.R. 374 (C.A.), refd to. [para. 269].

Split Lake Cree First Nation v. Sinclair - see Tataskweyak Cree Nation v. Sinclair.

Tataskweyak Cree Nation v. Sinclair (2007), 320 F.T.R. 1; 2007 FC 1107, refd to. [para. 270].

Lumonics Research Ltd. v. Gould, Refac International Ltd. and Patlex Corp., [1983] 2 F.C. 360; 46 N.R. 483 (F.C.A.), refd to. [para. 270].

Kassab v. Bell Canada (2008), 337 F.T.R. 152; 2008 FC 1181, refd to. [para. 272].

Rice, P.C.J. v. New Brunswick, [2002] 1 S.C.R. 405; 282 N.R. 201; 245 N.B.R.(2d) 299; 636 A.P.R. 299; 2002 SCC 13, dist. [para. 287].

Mackin v. New Brunswick (Minister of Finance) - see Rice, P.C.J. v. New Brunswick.

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. 292].

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

Kozak et al. v. Canada (Minister of Citizenship and Immigration) (2006), 349 N.R. 309; 2006 FCA 124, refd to. [para. 293].

Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.), refd to. [para. 301].

Zazai v. Canada (Minister of Citizenship and Immigration) (2004), 318 N.R. 365; 2004 FCA 89, refd to. [para. 301].

Pillai v. Canada (Minister of Citizenship and Immigration), [2001] F.T.R. Uned. 896; 2001 FCT 1417, refd to. [para. 301].

Authors and Works Noticed:

Bullard, David, Loss of freedom creeps up on us like a face of wrinkles, Sunday Times (October 21, 2007), generally [para. 22].

Ka Mahamba, Africa, Taking from whites is not a crime in SA, Daily Sun, generally [para. 13].

Kleinmond, M. Riordan-Bull, Attacks have shown most of ANC to be racists, Cape Argus (May 31, 2008), generally [para. 22].

Counsel:

Bernard Assan and Asha Gafar, for the applicant;

Rocco Galati and Russell Kaplan, for the respondent.

Solicitors of Record:

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the applicant;

Rocco Galati Law Firm, Toronto, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on July 13, 2010, by Russell, J., of the Federal Court, who delivered the following reasons for judgment on November 24, 2010.