Thamotharem v. Canada (Minister of Citizenship and Immigration)

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Court of Appeal (Canada)
• Judge: Décary, Sharlow and Evans, JJ.A.
• Citation: (2007), 366 N.R. 301 (FCA),2007 FCA 198
• Date: 16 April 2007

Thamotharem v. Can. (M.C.I.) (2007), 366 N.R. 301 (FCA)

MLB headnote and full text

Temp. Cite: [2007] N.R. TBEd. JN.022

The Minister of Citizenship and Immigration (appellant) v. Daniel Thamotharem (respondent) and The Canadian Council for Refugees and The Immigration Refugee Board (intervenors)

(A-38-06; 2007 FCA 198)

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

Federal Court of Appeal

Décary, Sharlow and Evans, JJ.A.

May 25, 2007.

Summary:

Thamotharem applied for judicial review of a decision of the Immigration and Refugee Board, Refugee Protection Division, that he was not a Convention refugee or a person in need of protection. At issue was whether Guideline 7, the "reverse order questioning" provision, violated the principles of natural justice and procedural fairness or fettered the discretion of the board. Guideline 7 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, in a decision reported 285 F.T.R. 45, allowed the application and remitted the matter to a differently constituted panel of the Board for reconsideration. The Minister of Citizenship and Immigration appealed and Thamotharem cross-appealed.

The Federal Court of Appeal allowed the Minister's appeal and dismissed Thamotharem's cross-appeal and his application for judicial review.

Administrative Law - Topic 2208

Natural justice - Policies, rules or guidelines adopted by board or tribunal - Procedural guidelines - This appeal raised issues respecting the validity of Guideline 7 made by the Chairperson of the Immigration and Refugee Board (IRB) 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 conducted by the Refugee Protection Board (RPD), 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 of Appeal held that Guideline 7 was not on its face invalid on the ground of procedural fairness, although fairness could require that, in certain circumstances, particular claimants should be questioned first by their own counsel - Guideline 7 did not violate the principles of natural justice by unduly interfering with a claimant's right to be heard - Guideline 7 was not incompatible with the impartiality required of a member when conducting a hearing which was inquisitorial in form - Further, Guideline 7 was not an unlawful fetter on the exercise of members' discretion in conducting refugee protection hearings - Nor did it follow from the fact that Guideline 7 could have been issued as a statutory rule of procedure instead of by way of guideline that it was invalid because it was not approved by the Governor-in-Council - See paragraphs 1 to 111.

Administrative Law - Topic 2261

Natural justice - The duty of fairness - General - [See Administrative Law - Topic 2208 ].

Administrative Law - Topic 2499

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

Administrative Law - Topic 8264

Administrative powers - Discretionary powers - Fettering of discretion - [See Administrative Law - Topic 2208 ].

Aliens - Topic 25

Definitions and general principles - Immigration manuals, guidelines, etc. - [See Administrative Law - Topic 2208 ].

Aliens - Topic 25

Definitions and general principles - Immigration manuals, guidelines, etc. - This appeal raised issues respecting the validity of Guideline 7 (i.e., the "reverse order questioning") made by the Chairperson of the Immigration and Refugee Board (IRB) under s. 159(1)(h) of the Immigration and Refugee Protection Act (IRPA) - The Federal Court of Appeal stated that despite the express statutory authority of the Chairperson to issue guidelines, guidelines issued under s. 159(1)(h) of the IRPA did not have the same legally binding effect on board members as statutory rules could (i.e., the guideline did not have the full force of law) - In particular, guidelines could not lay down a mandatory rule from which board members had no meaningful degree of discretion to deviate, regardless of the facts of a particular case before them - See paragraphs 65 to 72.

Aliens - Topic 25

Definitions and general principles - Immigration manuals, guidelines, etc. - This appeal raised issues respecting the validity of Guideline 7 (i.e., the "reverse order questioning") made by the Chairperson of the Immigration and Refugee Board (IRB) under s. 159(1)(h) of the Immigration and Refugee Protection Act (IRPA) - The Federal Court of Appeal rejected an argument that Guideline 7 was invalid because it was a rule of procedure which should have been issued under s. 161(1)(a) of the IRPA - The court stated that on procedural issues, the Chairperson's guideline-issuing and rule-making powers overlapped (i.e., that the subject of a guideline could have been enacted as a rule of procedure under s. 161(1)(a) would not normally invalidate it, provided that it did not unlawfully fetter members' exercise of their adjudicative discretion which in this case it did not) - The Chairperson could choose through which legislative instrument to introduce a change to the procedures of any of the three Divisions of the IRB - Parliament should not be taken to have intended the Chairperson to obtain Cabinet approval for procedural changes implemented by way of a guideline - See paragraphs 90 to 109.

Aliens - Topic 1326

Admission - Refugee protection, Convention refugees and persons in need of protection - Procedure - [See Administrative Law - Topic 2208 and second and third Aliens - Topic 25 ].

Aliens - Topic 1329.6

Admission - Refugee protection, Convention refugees and persons in need of protection - Hearing - Order of questioning (Guideline 7) - [See Administrative Law - Topic 2208 and second and third Aliens - Topic 25 ].

Aliens - Topic 1865

Exclusion and expulsion - Immigration and Refugee Board - Guidelines - General - [See Administrative Law - Topic 2208 and second and third Aliens - Topic 25 ].

Aliens - Topic 1866

Exclusion and expulsion - Immigration and Refugee Board - Guidelines - Order of questioning - [See Administrative Law - Topic 2208 and second and third Aliens - Topic 25 ].

Cases Noticed:

Benitez v. Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 107; 290 F.T.R. 161; 2006 FC 461, refd to. [para. 8].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 34].

Can-Am Realty Ltd. v. Minister of Employment and Immigration (1993), 69 F.T.R. 63 (T.D.), refd to. [para. 41].

Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84; 280 N.R. 268; 2002 SCC 3, refd to. [para. 43].

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

Shabib et al. v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 747; 2005 FC 1250, refd to. [para. 46].

Rajaratnam v. Minister of Employment and Immigration (1991), 135 N.R. 300 (F.C.A.), refd to. [para. 47].

Ainsley Financial Corp. et al. v. Ontario Securities Commission et al. (1994), 77 O.A.C. 155; 121 D.L.R.(4th) 79 (C.A.), refd to. [para. 56].

Capital Cities Communications Inc. et al. v. Canadian Radio-Television Commission et al., [1978] 2 S.C.R. 141; 18 N.R. 181, refd to. [para. 57].

Vidal and Dadwah v. Minister of Employment and Immigration (1991), 41 F.T.R. 118; 49 Admin. L.R. 118 (T.D.), refd to. [para. 57].

Roncarelli v. Duplessis, [1959] S.C.R. 121, refd to. [para. 58].

Maple Lodge Farms Ltd. v. Canada, [1981] 1 F.C. 500; 42 N.R. 312 (F.C.A.), affd. [1982] 2 S.C.R. 2; 44 N.R. 354, refd to. [para. 59].

Consolidated-Bathurst Packaging Ltd. v. International Woodworkers of America, Local 2-69 and Labour Relations Board (Ont.), [1990] 1 S.C.R. 282; 105 N.R. 161; 38 O.A.C. 321, refd to. [para. 61].

Bell Canada v. Canadian Telephone Employees Association et al., [2003] 1 S.C.R. 884; 306 N.R. 34; 2003 SCC 36, refd to. [para. 65].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, dist. [para. 67].

Canada (Attorney General) v. Public Service Alliance of Canada et al., [2000] 1 F.C. 146; 176 F.T.R. 161 (T.D.), refd to. [para. 69].

Ha v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 195; 316 N.R. 299; 2004 FCA 49, refd to. [para. 78].

Tremblay v. Commission des affaires sociales et autres, [1992] 1 S.C.R. 952; 136 N.R. 5; 47 Q.A.C. 169, refd to. [para. 85].

Statutes Noticed:

Guideline 7 - see Immigration and Refugee Protection Act Guidelines.

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 159(1)(h) [para. 26]; sect. 161(1)(a) [para. 90].

Immigration and Refugee Protection Act Guidelines, Guideline 7 - Preparation and Conduct of a Hearing in the Refugee Protection Division (2003) [para. 32].

Preparation and Conduct of a Hearing in the Refugee Protection Division (Guideline 7) - see Immigration and Refugee Protection Act Guidelines.

Authors and Works Noticed:

Canada, Hansard, House of Commons Debates, Legislative Committe on Bill C-86, Minutes of Proceedings and Evidence, 3rd Sess., 34th Parliament, Issue 5 (July 30, 1992), p. 80 [para. 92].

Craig, Paul P., Administrative Law (5th Ed. 2003), pp. 398 to 405, 536 to 540 [para. 57].

Hansard - see Canada, Hansard, House of Commons Debates.

Hathaway, James C., Rebuilding Trust: Report of the Review of Fundamental Justice in Information Gathering and Dissemination at the Immigration and Refugee Board of Canada (1993), p. 74 [para. 22].

Janisch, Hudson N., The Choice of Decision-Making Method: Adjudication, Policies and Rule-Making, in Special Lectures of the Law Society of Upper Canada 1992, Administrative Law: Principles, Practice and Pluralism, generally [para. 57].

Law Society of Upper Canada Special Lectures 1992, Administrative Law: Principles, Practice and Pluralism, generally [para. 57].

Mullan, David J., Administrative Law (2001), pp. 374 to 379 [para. 57].

Counsel:

Jamie Todd and John Provart, for the appellant;

Jack Davis, for the respondent;

Christopher D. Bredt and Morgana Kellythorne, for the intervenor, the Immigration and Refugee Board;

Catherine Bruce and Angus Grant, for the intervenor, the Canadian Council for Refugees.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the appellant;

Davis & Grice, Toronto, Ontario, for the respondent;

Borden Ladner Gervais LLP, Toronto, Ontario, for the intervenor, the Immigration and Refugee Board;

The Law Offices of Catherine Bruce, Toronto, Ontario, for the intervenor, the Canadian Council for Refugees.

This appeal and cross-appeal were heard at Toronto, Ontario, on April 16, 2007, by Décary, Sharlow and Evans, JJ.A., of the Federal Court of Appeal. The decision of the court was delivered at Ottawa, Ontario, on May 25, 2007, when the following opinions were filed:

Evans, J.A. (Décary, J.A., concurring) - see paragraphs 1 to 111;

Sharlow, J.A., concurring reasons - see paragraphs 112 to 120.